R (On the Application of) v The Environment Agency [2021] EWHC 2501

In a landmark human rights case involving a vulnerable five-year-old boy, Mathew Richards, Monckton’s Ian Wise QC, Michael Armitage and Will Perry succeeded in showing that the Environment Agency is not discharging its statutory duty under s. 6 of the Human Rights Act 1998 to protect the boy’s right to life and right to respect for private and family life (under Articles 2 and 8 respectively of the European Convention on Human Rights) in its regulation of harmful hydrogen sulphide emissions from the Walleys Quarry Landfill Site in the Staffordshire village of Silverdale.

The Silverdale community’s campaign to “Stop the Stink” from the Landfill has been well publicised in the national media and discussed in Parliament. Mathew, the Claimant, was born prematurely and suffers from bronchopulmonary dysplasia (“BPD”) as a result. In his judgment of 16 September, Fordham J found: (i) that ongoing exposure to hydrogen sulphide emissions from the Landfill at current levels was responsible for making Mathew’s BPD “an inevitable precursor” to Chronic Obstructive Pulmonary Disease, “a serious illness reducing life expectancy”; and (ii) that, as such, exposure to those emissions posed a “real and imminent risk” to Mathew’s life for the purposes of Article 2 ECHR. He noted that the Environment Agency has the power to protect Mathew from that exposure.

Fordham J did not accept the Environment Agency’s submission that it had done what the law required it to do to protect Mathew, because he had not been presented with any evidence of a disciplined plan to address a recommendation that Public Health England had made in August that “all measures” be taken to reduce off-site emissions of hydrogen sulphide “as early as possible” to certain levels.

Fordham J underlined that PHE’s recommendations required “real and significant change, as a matter of urgency”, in order to ensure that human rights safeguards were practical and effective. In line with those recommendations, he therefore made a declaration that the Environment Agency must take measures to ensure that off-site odours from the Landfill are reduced as early as possible to meet the World Health Organisation’s half-hour average guideline level of 5 parts per billion, and that concentrations of hydrogen sulphide in the local area must be reduced to below the US EPA Reference Value of 1 part per billion (recommended by PHE as a safe level for chronic inhalation) from January 2022, concluding those reductions would make a “very real difference” to the air that Mathew and his community breathe.

The case is legally significant for three principal reasons. First, live evidence was heard from expert witnesses, namely Mathew’s consultant paediatrician Dr Ian Sinha and Professor Sir Colin Berry, a histopathologist and toxicologist who was the expert for the Interested Party, the Landfill operator Walleys Quarry Limited. That is rare in judicial review in any event, but it is thought that this is the first time that the Administrative Court has used the “hot-tubbing” of experts as a way of cutting through the issues. Second, Fordham J’s is the first domestic judgment explicitly to decide that a reduction in life expectancy can be identified with a “real and imminent risk” to life for the purposes of Article 2 ECHR. Third, this was the first domestic environmental case that considered both Article 2 and Article 8 ECHR in tandem.

The judgment is available here.

Ian Wise QC, Michael Armitage and Will Perry acted for the Claimant (instructed by Hopkin Murray Beskine Ltd).

The case is being reported widely in the media:
The Guardian (16 September) and The Guardian (17 September);
BBC News;
Independent;
The Times;
Sky News.

 

Please click here to read the case note.

Imogen Proud, instructed by Derek Bernardi of Camden Community Law Centre, is acting for Mohammed Bhuiyan, a Bangladeshi national with leave to remain in the UK but with no recourse to public funds. Bhuiyan was housed by Tower Hamlets last March as part of the “Everyone In” Scheme which required all councils to find emergency housing for rough sleepers in response to the pandemic.

Despite the Ministry of Housing, Community and Local Government stating that the Scheme was “ongoing” and that “no one should find themselves back on the street”, on 22 June 2021 Mr Bhuiyan received a letter from the council saying that he must leave the hotel by 2 August. On Monday, Bhuiyan’s legal team were successful in securing an interim relief order which means that Tower Hamlets must continue to accommodate Mr Bhuiyan pending a decision on permission to proceed with his claim.

The case has attracted media attention including an article written by May Bulman, the Independent’s Social Affairs Correspondent, in Monday’s edition which can be read by subscribers here.

The Competition Appeal Tribunal has dismissed a standalone damages claim brought by a drinks wholesaler against Coca-Cola’s GB bottler, Coca Cola European Partners Great Britain Limited (CCEP).

Forrest Fresh Foods had alleged various abuses of dominance. Allowing CCEP’s application for summary judgment, the Tribunal emphasised that a breach of competition law is a “very serious allegation” that needs “proper and careful pleading”. Mrs Justice Bacon held that “a defendant faced with such a claim is entitled to know what the conduct is complained of, how that has infringed competition law and the loss and damage said to have flowed from that. We consider that the particulars of claim fail on all three points and the evidence does not serve to remedy that deficit.”

A written judgment with the Tribunal’s full reasons can be found here.

Josh Holmes QC and Nikolaus Grubeck acted for CCEP, instructed by CMS.

Ronit Kreisberger and Michael Armitage, instructed by Hausfeld, are acting for Liz Coll, the proposed class representative in a proposed opt-out representative action against Google. A claim has been filed today in the Competition Appeal Tribunal against Google on behalf of an estimated 19.5 million eligible UK users of smartphones and tablets running on Google’s Android operating system. Estimated damages run up to £920 million.

The claim alleges that Google unfairly restricts consumers from accessing potential competition from other app distributors, by requiring smartphone manufacturers to pre-install a bundle of Google’s proprietary apps and services including the Google Play Store as well as allegedly imposing other contractual and technical restrictions. The vast majority of Android smartphone and tablet users in the UK are thought to depend upon the Google Play Store for their access to apps.

The overwhelming majority of customers are alleged in the Claim to be steered to the Google Play Store, and therefore to Google’s own payment processing system, which then typically charges a 30% commission on every digital purchase which allegedly goes straight to Google.

Ms Coll’s case is that this practice is anti-competitive and unlawful, and that Google would be unable to charge customers such excessive and unfair commission if the Play Store were genuinely open to competition, and alleges this conduct violates section 18 of the UK Competition Act 1998 and Article 102 of the Treaty on the Functioning of the European Union.

Ronit comments “this proposed claim is another important addition to the CAT’s burgeoning CPO case load; and further proof that the class action regime in the CAT is seen as a robust and effective means of seeking collective redress for UK consumers.”

For further information, see news release issued by Hausfeld here.

The claim has been reported in the news, including: BBC News; Bloomberg; City AM; The i; The Sun; The Telegraph (subscription only).

The High Court has ruled that the latest challenge to the U.K. health department’s process for awarding contracts during the COVID-19 pandemic should not be allowed to go ahead as the claim was not served validly.

The group action, brought by the Good Law Project, alleges breach of the procurement regulations and apparent bias and challenges the lawfulness of two contracts for face masks awarded to Pharmaceuticals Direct Ltd. However, the central issue to this judgment was whether there was valid service of the claim form in these proceedings; if not, whether the court should rectify any deficiency or extend time for service of the claim form.

Contrary to the court procedure rules, this action was not served on the government within the required seven days of the lawsuit being issued in April. The claimant’s argument was that the legal team’s failure to comply was “minor and technical.” The Defendant’s application to set aside the claim was summarised as follows: “This is not a case in which the Claimant should have had any difficulties in effecting valid service. It made a careless mistake in emailing the claim form to the wrong address. If the court were to grant the Claimant’s application, the Defendant would suffer prejudice in that it would be deprived of an accrued limitation defence to the claim.”

The Claimant’s application was dismissed.

This judgment will be of interest to all public law and procurement practitioners, as it is concerned with valid service of the claim form in a judicial review context.

Ewan West, instructed by the Government Legal Department, represented The Secretary of State for Health and Social Care.

Read full judgment here. A detailed case note by Imogen Proud is here.

The High Court has granted Western Sahara Campaign UK (“WSCUK”) permission to challenge the grant of preferential tariff treatment to goods from Western Sahara but designed by Morocco as “Moroccan” for purposes of the UK-Morocco Association Agreement.

WSCUK contends that the provisions of the agreement which purport to extend to Western Saharan resources are contrary to the principle of self-determination and treaty law prohibiting the imposition of obligations on a third party without consent.

WSCUK contends that the provisions of the agreement (and secondary legislation incorporating the relevant terms of that agreement) which purport to apply to Western Sahara must be read down. If such a compatible interpretation is not possible, WSCUK contends that domestic implementing legislation giving effect to the UK-Morocco Association Agreement must be treated as ultra vires Sections 9 and 28 of the Taxation (Cross-border Trade) Act 2018, since it fails to “give effect” to the treaty obligations and to have regard to international obligations in doing so, as required by the enabling act.

The central issue at the permission hearing was whether the claim was barred by the foreign act of state doctrine. In a reasoned permission decision, the High Court rejected the argument that the claim was non-justiciable on grounds of foreign act of state, finding that it was at least arguable that the claim falls within the public policy exception to the doctrine.

This is the first occasion on which the domestic courts have been called upon to interpret one of the UK’s new post-Brexit trade agreements and rule on the legality of the domestic implementation of that agreement by reference to principles of international law.

Conor McCarthy has been instructed by Leigh Day for the Claimant in this case.

In a decision of significance for public bodies, the Court of Appeal has held that HMRC has power to raise assessments against public bodies who have been overpaid VAT refunds under section 41 of the Value Added Tax Act 1994.

Milton Keynes Hospitals NHS Foundation Trust argued that HMRC’s power to make an assessment under section 73 (2) of the Value Added Tax Act 1994 did not apply where the person to whom the refund was made under section 41 (3) is not a taxable person as regards the supplies which were the subject of the refund. They contended that the effect of the Principal VAT Directive and the domestic legislation implementing it is to put a public body performing statutory (non-business) functions outside the scheme of VAT.

The Court of Appeal dismissed the Trust’s appeal.

Valentina Sloane QC represented HMRC at all stages. A link to the decision by the Court of Appeal is here.

An Immigration Exemption within the Data Protection Act 2018, which allowed the Government and others within the private sector a blanket power to refuse information and use it secretly has been ruled unlawful. The court of Appeal was unanimous in concluding that the Government’s “Immigration Exemption” is incompatible with the requirement for such exemptions as outlined under Article 23(2) of the EU General Data Protection Regulation (GDPR). A further hearing will take place later in the summer to determine how to fix the unlawfulness.

The appeal was brought by Open Rights Group, a digital rights organisation that seeks to promote and uphold privacy and data protection rights and the3million, a grassroots organisation of EU citizens resident in the UK, with an intervention in the Court of Appeal case brought by the Information Commissioner.

Open Rights Group and the3million had argued that the Immigration Exemption is unlawful because it is overbroad and there are no legislative safeguards in place to protect against unnecessary and disproportionate interference with the fundamental rights of data subjects.

Julianne Kerr Morrison, led by Ben Jaffey QC of Blackstone Chambers, and instructed by Waleed Sheikh and Erin Alcock of Leigh Day, represented the appellants Open Rights Group and the3million.

See Leigh Day news release and judgment for further information.

The Court of Appeal has handed down its judgment in the long-running saga about the ownership of the original gearbox of a 1962 Ferrari 250 GTO sold for US$ 44m in 2018. The GTO was sold and delivered by the Appellant seller, Mr Carl, to the Respondent buyer, Gregor Fisken Limited (“GFL”) but, as the sale contract recognised, without the original gearbox which had gone missing. The contract contained various provisions concerning the seller’s obligations to deliver up the gearbox to the buyer should he be able to find and retrieve it. In certain circumstances, he was entitled to a fee of US$ 500,000 for his efforts in so doing. The gearbox was subsequently discovered, the parties fell out, and GFL sued the seller for specific performance of the obligations to deliver up the gearbox.

The seller had argued at first instance that GFL was not a proper party to sue on the contract, lacking standing on the alleged basis that it had acted at all times as an agent for a disclosed but unidentified principal. GFL had been described as an agent in the header to the contract, but had signed it in an unqualified manner. As a matter of fact, GFL was not an agent: it had resold the GTO to a third party.

The seller also maintained that, if GFL was a proper party, it had repudiated the contract and could not enforce the seller’s obligations to deliver up the gearbox. In the alternative, if the contract remained in force, the seller claimed entitlement to the US$ 500,000 in exchange for delivering up gearbox.

The High Court held that GFL was a proper party to sue, there had been no repudiation, the seller was obliged to deliver up the gearbox and was not entitled to the US$ 500,000. The seller’s principal argument on appeal was that GFL lacked standing. The Court of Appeal rejected that argument, affirming GFL’s right to sue on the contract and to the gearbox. The Court of Appeal further confirmed that there had been no repudiation by GFL, but that the seller was to be paid the US $500,000 for his efforts in locating and retrieving the gearbox, as well as the shipping costs for sending the gearbox to GFL. Otherwise, the Court dismissed the appeal.

The Court of Appeal’s judgment will be of particular interest to car enthusiasts, the motor industry, and commercial practitioners alike. It also includes detailed analysis of the signature principle which dates back 150 years, and shows that when, as to apparent capacity, there is a mismatch between description and signature in a contract, it is the signature which prevails. The Court expressly affirmed that principle.

The Court of Appeal’s judgment is available here.

William Hooper appeared for GFL, instructed by Simon Walton and Nick Leigh of Rosenblatt.

The Grand Chamber of the European Court of Human Rights has handed down a landmark judgment on the compatibility of bulk surveillance regimes with the ECHR.

In the joined cases of Big Brother Watch, 10 Human Rights NGOs and Bureau of Investigative Journalism v United Kingdom the Court held that the former UK bulk interception regime in the Regulation of Investigatory Powers Act 2000 was incompatible with Articles 8 and 10 of the European Convention on Human Rights. The Court found that the regime was incompatible with the right to privacy more generally and specifically as regards the right of journalists to the protection of journalistically confidential information.

The Grand Chamber’s judgment marks a significant evolution of the court’s case law on these issues and has potential implications for the UK’s current surveillance legislation, the Investigatory Powers Act 2016.

The Court held that while it is, in principle, within a state’s margin of discretion to operate a bulk surveillance regime, it must have detailed and effective safeguards to ensure that any interference with Convention rights is necessary and proportionate.  The safeguards must be “end- to-end”, covering the entire process from the interception of information through to its destruction. The Court laid down detailed new guidance as to what these safeguards must entail, including as regards judicial or independent authorisation and supervision of the surveillance process. The Court found that the Regulation of Investigatory Powers Act 2000 did not provide for adequate safeguards and was therefore incompatible with the Convention.

As regards journalistically confidential information and the right to source-protection, the Court said that specific additional protections are required.  The Court held that judicial or independent authorisation is required prior to the use of selectors or search terms which would make the obtaining of confidential journalistic material highly probable. The use of such search terms could only be “justified by an overriding requirement in the public interest”. Where journalistic material is obtained inadvertently, the continued storage and examination of such material is only permissible where approved by a judge or independent body on grounds of overriding public interest. As the UK regime lacked these safeguards the Court found that it was inconsistent with Articles 8 and 10 ECHR.

Conor McCarthy was instructed by the Bureau of Investigative Journalism before the Chamber and Grand Chamber.

Eric Metcalfe was instructed by Liberty, the ACLU and 5 other international human rights groups before the Chamber and by ARTICLE 19 as third party intervener before the Grand Chamber.