Latest Cases

Solemn procedure – Defective representation – Misdirection – Sentencing. High Court of Justiciary: Refusing an appeal against conviction by an appellant who was found guilty of abducting his 11 year old son, the court rejected contentions that a miscarriage of justice had occurred as a result of defective representation, that the defence of necessity should have been argued at the trial, and that the sheriff had a duty to direct the jury on the question of lawful authority despite counsel conceding that that defence was not being advanced, however it upheld a submission that the 2-year custodial sentence imposed on the appellant excessive and substituted one of 9 months. 

Extradition – Passage of time. High Court of Justiciary: In appeals concerning two separate European Arrest Warrants (EAWs) in which the Polish authorities sought an individual's extradition to stand trial on charges relating, inter alia, to theft and attempted theft of petroleum, the court refused the appeal in respect of the first EAW, holding that there was no error of law in a sheriff's decision that it would not be oppressive to extradite the individual by reason of the passage of time, and it allowed the Lord Advocate's appeal in respect of the second EAW, holding that a different sheriff had erred in concluding that the actions of the requesting court 'in deliberately not pursuing the offence' were oppressive and that there was a risk of prejudice to the respondent were trial to take place now. 

European Union – Freedom of establishment. The Court of Justice of the European Union gave a preliminary ruling concerning the interpretation of arts 15, 15a and 15b of Council Directive (EEC) 92/49 (on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance, as amended by Directive (EC) 2007/44. The request had been made in proceedings between CO Sociedad de Gestion y Participacion SA and others and Netherlands Central Bank, concerning the requirements to which the latter had subjected the approval of proposed acquisitions of the qualifying holding in the capital of Atradius NV. 

Particulars of claim – Services. The claimant company brought proceedings against the defendants, who were former directors and advisors to it. It served proceedings out of the jurisdiction on the second defendant, W, and the fourth defendant, M. W and M made applications for further time to make applications under CPR Pt 11, and to have the service of the claimant's claim form struck out. The Chancery Division held that, in the circumstances, it would be appropriate to allow the applications. 

Medical practitioner – Appeal against determination of disciplinary committee. The appellant appealed against the decision of the respondent Nursing and Midwifery Council's Conduct and Competence Committee (the Panel) that his fitness to practise was impaired and that a striking-off order should be made. The Administrative Court, in dismissing the appeal, held that it was without merit. The Panel's findings were unassailable and the appellant come nowhere near establishing, still less with reasonable certainty, that the Panel's findings were wrong. In particular, there was absolutely nothing in the allegations that the Panel had been biased and dishonest, and the suggestion of racial discrimination was unsupported by any evidence. 

Minor – Medical treatment. The Family Division, in an emergency application by the applicant NHS Trust held that it was in the child's best interests to withhold invasive ventilation despite the wishes of the parent to have such treatment administered. 

Negligence – Duty to take care. The claimant had suffered burns when his uncle, who had unknowingly been suffering with florid paranoid schizophrenia, had set fire to himself. He sought damages in negligence under his uncle's household insurance policy. The judge found that his uncle's actions had not been voluntary, therefore he had not owed a duty of care. The Court of Appeal, Civil Division, allowed the claimant's appeal. It held that the actions of a defendant, who was merely impaired by medical problems, whether physical or mental, could not escape liability if he caused injury by failing to exercise reasonable care unless his condition entirely eliminated his responsibility. 

Trust and trustee – Removal of trustee. The Chancery Division considered an application to remove the trustees administering the testator's will, where tension had arisen between the testator's family and workers in a company that he had established. The court held that it was appropriate to remove the trustees, who were perceived as having close links with the company, and to appoint the testator's daughters in their place. 

Food and drugs – Food unfit for human consumption. The issue for determination was whether there was a right of appeal against an official veterinarian's assessment of the fitness of meat for human consumption. The Administrative Court, in dismissing the claimants' application for judicial review, held that a right of appeal was entirely inconsistent with the applicable European Union regulations. Further, as the EU regulations had not made clear or indicated that member states should enact rights of appeal, there was no duty to interpret any provision of domestic law so as to give full effect to EU law and there was no infraction of the right to property. 

Motor insurance – Compulsory insurance against third party risks. The prosecution appealed by way of case stated against the justices' decision, dismissing a summons alleging use of a motor vehicle on a road without a policy of insurance on the basis that there had been no insurance for a business use of the respondent's van. The Divisional Court, in dismissing the appeal, held that the prosecution bore the onus of proving that the van had been used for business use. The state of the van alone had not been enough to enable a reasonable tribunal to be sure of the business use and the justices had been entitled to their conclusion.