Public Interest Litigation Update:

31st October 2014

 

Welcome to the PILS Project's Public Interest Litigation Update. The Update provides you with information on current public interest cases, judgments, news and events.
 
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Community Care 
  • Decision to close elderly care home not unlawful
Karia, R (on the application of) v Leicester City Council (2014) EWHC 3105 (Admin) 

Leicester City Council has successfully defended a High Court challenge brought on behalf of a 101 year old resident over its decision to close her care home.

The resident is a British Asian woman of Gujarati descent who has lived in Herrick Lodge care home since 1999. 

 The arguments included that the Council had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination against British Asian residents in the provision of its service.  The applicant also argued that the Council had failed to take into account the impact of closure on her Article 8 rights.

The Court dismissed the arguments holding that the decision-maker had due regard to the statutory objectives of the Equality Act.  Moreover the Court stressed that the applicant’s Article 8 rights had not been infringed.  It referred to the fact that the Council had ensured that there would be places to which she could be moved where she would have access to Gujarati food and Gujarati-speaking social workers and care workers.   

Click here for an article from The Human Rights Blog    

 

Legal Aid
  • Another successful challenge to LAPSO
Whitston (Asbestos Victims Support Groups Forum UK), R (On the Application Of) v Secretary of State for Justice (2014) EWHC 3044 (Admin)
 
The Asbestos Victims Support Groups Forum UK, represented by Richard Stein of Leigh Day, our newest solicitor member, have won a High Court challenge to the British government’s plans to subject mesothelioma claims to the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO).
 
The act prevents the recovery of success fees and insurance premiums from losing defendants who, in mesothelioma cases, are often insurance companies.  This would result in mesothelioma sufferers having to pay up to 25% of their damages for costs previously paid by insurers.
 
The High Court held that the Ministry of Justice had not conducted a proper review of the likely effects of the LAPSO reforms on cancer sufferers.  The Court stated:
 
‘It is now for the Lord Chancellor to carry out a proper review…..in whatever manner he concludes will permit him reasonably to achieve the required purpose.’
 
Richard Stein’s commentary on the case can be found in an article by The Law Gazette here.

 

Criminal Law
  • Stephen Gough loses right to public nudity case
Gough v. The United Kingdom (Application no. 49327/11)

Stephen Gough, aka the Naked Rambler, has lost his case before the European Court of Human Rights.  Mr Gough claimed that his repeated convictions and imprisonments for offences associated with being nude in public violated his rights under Articles 8 and 10 of the European Convention of Human Rights.
 
Mr Gough, from Eastleigh Hampshire, has walked naked throughout the UK. His numerous convictions include breach of the peace and contempt of court (for refusing to dress for his court appearances).  Consequently, between 2003 and 2012 he spent a cumulative total of over 7 years in detention in Scotland, the majority of the detention having been spent in segregation.
 
On 28th October the European Court dismissed his case.  Although it accepted that the cumulative impact of the measures imposed upon him were severe, they were in accordance with domestic law and pursued the legitimate aim of preventing disorder and crime.  The Court held
‘Article 10 does not go so far as to enable individuals…..to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression…’
 
The Court also held that Article 8 had not been violated for essentially the same reasons given by the Court in its analysis of Mr Gough’s complaint under Article 10.
 
Commentary from The Guardian can be found here.

 

Local Cases – LGBT, Family Law and Judicial Reviews
  • LGBT - Stena Line unfair dismissal case to be reheard
Martin Sheil v Stena Line Irish Sea Ferries Ltd (2014) NICA 66
 
In a case covered in a previous Update, the Northern Ireland Court of Appeal has ordered a new hearing in the Industrial Tribunal finding last year that Martin Shiel was unfairly dismissed.
 
The Industrial Tribunal had awarded Mr Shiel £37,500 for unfair dismissal and a further £7,500 for unlawful harassment on the grounds of his sexual orientation.  While the finding of harassment was not appealed, Stena Line appealed the unfair dismissal aspect and on 8th October the Court of Appeal ordered a fresh hearing in front of a different panel after ruling that a flaw identified in the investigatory and disciplinary process was not properly backed by facts or reasoning. 
 
The Court of Appeal also identified a failure by the Industrial Tribunal panel to resolve a clear factual conflict about what happened during the incident that led to Mr Shiel’s dismissal. 
 
The Court stated that the question of whether or not Mr Shiel was subjected to homophobic comments is likely to remain ‘a live issue’.
 
Click here for an article by the Belfast Telegraph. 

Featured in an earlier Update, the decision of the High Court to remove a girl to a facility for seriously troubled children in the Republic of Ireland was upheld by the Court of Appeal on 21st October. 
 
The Court of Appeal agreed with the High Court ruling that it was in the girl’s best interests to be separated from her mother and live in the specialist facility in Dublin.  There is no equivalent facility in Northern Ireland.
 
The appeal was brought by lawyers acting for the mother of the teenage girl.  They argued that the High Court had wrongly held that the mother withheld her consent and that the ruling was incompatible with Article 8 ECHR. 
 
The Court of Appeal rejected all arguments concluding
“Only separation and expert treatment can secure the welfare of this child in the future and no reasonable parent would withhold consent to that step.”
 
A judicial review hearing over the Environment Minister’s decision to approve the £77m Casement Park redevelopment ended on 13th October.  The complexity of the case is highlighted by the fact that the High Court heard 13 days of legal submissions.  Mr Justice Horner has reserved judgment to allow time to study all of the arguments before delivering his verdict.
 
Mooreland and Owenvarragh Residents’ Association (MORA), who issued the proceedings, oppose the redevelopment as they argue that it will dwarf surrounding homes, block out light and compound traffic congestion. 
 
The lengthy proceedings show the importance of securing Protective Costs Orders (PCO) at the earliest opportunity.  Regardless of the outcome, MORA will not face a huge legal bill having securing a PCO limiting their potential liability for opposition fees to £10,000.
 
We will update you on this case once the judgment has been delivered.  In the meantime to read more about the case you can visit MORA’s Facebook page here.

 
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PILS Events – Date for the diary

Our Annual Members’ Forum will take place on 26th November.  The annual meeting is for all solicitor and NGO members of PILS.  The forum will include presentations from the Equality Commission for Northern Ireland and the Integrated Education Fund.  Further details will be emailed to each member shortly.  You can express your interest in attending the event by emailing development@pilsni.org
 
Pro Bono

The PILS Project has a register of legal practitioners who are interested in undertaking pro bono work with the PILS Project.  Opportunities range from writing an initial opinion to involvement in a test case, contributing to publications on public interest cases/issues and delivering training and talks to NGOs and legal practitioners. If you would like to join the register and find out more about opportunities to do pro bono work, please email development@pilsni.org to request an application form.
 

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