Judgment Call 16 September

Administrative law

R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice

2013 WL 3994940 QBD (Admin) Haddon-Cave J. Judgment Date: 15 August 2013

Where exhumed human remains were found to be those of Richard III, it was plainly arguable that in such remarkable and unprecedented circumstances the Secretary of State for Justice had a common-law duty to consult widely as to how and where the remains should be reburied.

Permission granted

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For the claimants the Plantagent Alliance:

Gordons partner Matthew Howath, instructing Blackstone Chambers’ Gerard Clarke and Tom Cleaver

For the first defendant, the Secretary of State for Justice

Treasury Solicitors, instructing 11KBW’s Joanne Clement

For the second defendant, the University of Leicester

In-house counsel Penny McConnell, instructing 11KBW’s Anya Proops and Heather Emmerson

For the first interested party, the Cathedral of Saint Martin Leicester

Latham & Co lawyer Kay Hewitt, instructing 9 Stone Buildings’ Vivian Chapman QC

Employment

East Midlands Trains Ltd v National Union of Rail, Maritime & Transport Workers

2013 WL 3994941 CA (Civ Div) Arden LJ; Jackson LJ; Tomlinson LJ. Judgment Date: 15 August 2013

Amendments made by a train company to the start times of the hours of its staff because of planned engineering work constituted “cancellation” of the original rosters within the meaning of collective agreements incorporated in the staff’s contracts, entitling the company to make the changes without agreement with the staff.

Appeal allowed

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For the claimant East Midlands Trains Ltd

Cloisters’ Robin Allen QC and Jason Galbraith-Marten of the same set, instructed by Kennedys Law partner Matthew Leake

For the defendant National Union of Rail, Maritime & Transport Workers

Old Square Chambers’ John Hendy QC, leading Ijeoma Omambala and (15 August only) 3 Paper Buildings’ Christopher Edwards, instructed by Thompsons Solicitors trade union law national coordinator Richard Arthur and employment rights lawyer Richard Todd

VAT

Wildfowl & Wetlands Trust v HM Revenue & Customs Commissioners

2013 WL 3994966 FTT (Tax) Judge Swami Raghavan; Shahwar Sadeque Judgment Date: 6 August 2013

Wildlife sites operated by the Wildfowl and Wetlands Trust were “zoos” within the meaning of the Value Added Tax Act 1994 Sch.9 Pt II Group 13 which provided exemption from supplies for certain cultural services.

Preliminary issue determined in favour of appellant

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For the appellant Wildfowl & Wetlands Trust

Pump Court Tax Chambers’ David Milne QC instructed directly

For the respondents HMRC

39 Christiaan Zwart, instructed by the general counsel and Solicitor to HMRC

Insolvency

MF Global UK Ltd (In Special Administration), Re

2013 WL 3994943 Ch D David Richards J. Judgment Date: 16 August 2013

The contractual claim of a client proving in the insolvency of a broker-dealer had to be reduced by the amount received by the client by way of distribution of client money from the client money pool pursuant to Ch7 and 7A (CASS 7 and 7A) of the Clients Assets Sourcebook section of the Financial Services Authority Handbook.

Judgment accordingly

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For the applicants MF Global

South Square’s Antony Zacaroli QC leading Adam Al-Attar of the same set, instructed by Weil, Gotshal & Manges partner Paul Bromfield and senior associate Mark Lawford

Planning

R (on the application of Cherkley Campaign Ltd) v Mole Valley DC; Interested party: Longshot Cherkley Court

2013 WL 4411309 QBD (Admin) Haddon-Cave J. Judgment Date: 22 August 2013

A decision to grant planning permission for the development of a luxury golf course on an estate in an area of great landscape value was quashed where the local authority had erred in considering the requirement in local and national policy to show that there was a “need” for the new course. The word “need” meant required in the interests of the public and the community as a whole, and not simply desired by private demand.

Application granted

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For the claimant Cherkley Campaign Ltd

Francis Taylor Buildings’ Douglas Edwards QC leading Sarah Sackman of the same set, instructed by Richard Buxton Solicitors named partner Richard Buxton

For the defendant Mole Valley DC

Cornerstone Barristers’ James Findlay QC, instructed by Sharpe Pritchard partner Trevor Griffiths

For the interested party Longshot Cherkley Court

Landmark Chambers’ Christopher Katkowski QC and Robert Walton, instructed by Berwin Leighton Paisner senior associate Michael Dempsey

Civil procedure

R (on the application of Miranda) v Secretary of State for the Home Department; (2) Commissioner of Police for the Metropolis

2013 WL 4411328 DC Beatson LJ.; Kenneth Parker J. Judgment Date: 23 August 2013

The secretary of state could inspect material seized from a journalist’s aide detained whilst in transit at a London airport under the Terrorism Act 2000 Sch.7, pending a hearing for interim relief in his claim for unlawful detention, if the material could be used for the purpose of protecting national security.

Judgment accordingly

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For the claimant Miranda

Matrix Chambers’ Matthew Ryder QC, Edward Craven and Raj Desai instructed by Bindmans associate Gwen Morgan

For the first defendant Secretary of State for the Home Department

39 Essex Street Steven Kovats QC leading 6KBW’s Julian Blake, instructed by The Treasury Solicitor

For the second defendant Commissioner of Police for the Metropolis

2 Hare Court’s Jonathan Laidlaw QC and Three Raymond Buildings’ Ben Brandon,  instructed by The Treasury Solicitor

 Negligence

(1)The “Wembridge Claimants”; (2) The “Wicker Claimants”; (3) Timothy Austin v Winter; (2) East Sussex Fire and Rescue Service; (3) Alpha Fireworks Ltd (In Liquidation)*

2013 WL 3994846 QBD Irwin J. Judgment Date: 30 July 2013

Firefighters were not prevented from recovering damages from their fire service employers for injuries sustained during the course of their work: they accepted the risks which were inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owed them a duty of care could avoid. Further, there was no “fireground immunity” at common law that would protect a fire service from suit.

Judgment for claimants

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For (2) Wicker Claimants

12 King’s Bench Walk barristers Frank Burton QC, Andrew Roy and Vanessa Cashman, instructed by Slater & Gordon principal lawyer Tristan Hallam

For (3) Austin claimants

Henderson Chambers’ Lawrence West QC and Adam Heppinstall, instructed by Goldbergs partner Matthew Ellis

For the second defendant East Sussex Fire and Rescue Service

One Chancery Lane’s Edward Faulks QC, Muhammed Haque and James Sharpe, instructed by Clyde & Co partner David Knapp

The third defendants were not represented and did not appear

Employment

R&M Gaskarth v Mooney

2013 WL 3994914 EAT Jeffrey Burke QC; DJ Jenkins; DM Palmer. Judgment Date: 5 August 2013

When determining whether a claimant should recover loss of earnings for unfair dismissal during a period when she was unable to work through illness, the correct test was whether the loss was caused to a material extent by the dismissal. Accordingly, a tribunal had not erred in concluding that a claimant should recover loss of earnings where her depression had been caused by her dismissal, despite her suffering other physical ailments which would also have prevented her from working.

Appeal dismissed

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For the appellants R&M Gaskarth

Kings Chambers’ Nicholas Siddall, instructed by DWF associate Emma Deighan

For the respondents Mooney

Atlantic Chambers’ Timothy Grace, instructed by Richard C Hall & Partners partner Richard Hall

Featured case: Administrative law

King Richard reconstruction, based on recent discovery
King Richard reconstruction, based on recent discovery

R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice 

2013 WL 3994940 QBD (Admin) Haddon-Cave J. 

Judgment Date: 15 August 2013

Where exhumed human remains were found to be those of Richard III, it was plainly arguable that in such remarkable and unprecedented circumstances the Secretary of State for Justice had a common-law duty to consult widely as to how and where the remains should be reburied.

Permission granted

For the claimants the Plantagenet Alliance:

Gordons partner Matthew Howath, instructing Blackstone Chambers’ Gerard Clarke and Tom Cleaver

For the first defendant, the Secretary of State for Justice

Treasury Solicitors, instructing 11KBW’s Joanne Clement

For the second defendant, the University of Leicester

In-house counsel Penny McConnell, instructing 11KBW’s Anya Proops and Heather Emmerson

For the first interested party, the Cathedral of St Martin, Leicester

Latham & Co lawyer Kay Hewitt, instructing 9 Stone Buildings’ Vivian Chapman QC 

 

Featured case: commentary

Chris Alexander, associate solicitor, SA Law

”Let’s talk of graves, of worms, and epitaphs,” said King Richard in Shakespeare’s Richard III, and 500 years on we are doing precisely that.

Legal cases without any precedent are few and far between, but the judicial review (JR) application concerning the remains of Richard III is just such a case. 

A group containing the collateral descendents of the last Plantagenet king has challenged the decision to reinter the remains in Leicester in judicial review proceedings brought against the Secretary of State for Justice, the University of Leicester and both Leicester and York cathedrals.

The Plantagenet Alliance wanted consultation to take place on where Richard III’s remains should be reinterred, with a preference for York over Leicester.

I spent some time looking for a case on similar facts and having had a word around the office the closest I could manage was a dispute concerning ownership of the corpse of a dead cat (which settled without proceedings and had no royal connections).

While the facts of this case are unique the principles being applied are reassuringly familiar. The Ministry of Justice (MoJ) granted a licence to the University of Leicester to exhume six sets of human remains, which it was hoped would include those of Richard. DNA analysis showed beyond reasonable doubt that some of those remains were indeed the king’s and it was indicated that they would be reinterred at the Cathedral of St Martin, Leicester.

Procedural unfairness appears to be the central thrust of the Alliance’s argument. In a judgment with an entertaining conclusion Mr Justice Haddon-Cave concluded that there was an arguable case that the MoJ should have consulted on the location of reinterrment both before the licence was granted and once it became clear that Richard III’s remains had been found. 

Further, it was also arguable that the University of Leicester should not have progressed plans to reinter the remains in Leicester without appropriate consultation.

The court will now consider whether the decisions taken by the MoJ and University of Leicester were procedurally unfair and, if successful, that could lead to an extensive consultation with the interested parties on where Richard III will end up, Leicester or York.