Tag Archives: UK Supreme Court

Arnold v Britton: Lord Neuberger abolishes common sense

Lord Neuberger, President of the UK Supreme Court, has issued one of his presidential proclamations – which is what he does when he wishes to change the law from his lofty but unaccountable position. Nominally the case he was considering, Arnold v Britton & Others, was a simple enough matter regarding service charges for a set of chalets on the Gower peninsula: clause 3(2) of the lease said the price for work such as mowing grass, maintaining roads through the site and sewers &c was to be £90 in 1974 rising by 10% a year; how should this be interpreted nearly 40 years on when the annual figure was more than £3,000 per chalet and rising? (Inflation would produced a figure of less than £800 by 2012.)

If the charge were truly to rise by 10% a year the lessor would be making a very substantial surplus over the term of the lease thanks to compounding (Year 2: £90 + £9 = £99; year 3: £99 + £9.90 = £108.90 and so on annually.) As Davis LJ in the Court of Appeal noted:

 “The figures before us are illustrative of the consequences. For a lease on a one year compounded uplift, the annual service charge payable was, for the year end 2012, some £3,060. At the same compounded annual rate of increase, the projected annual sum payable for service charges in the last year of the term stands to be some £1,025,004: this for modest holiday chalets, the use of which is restricted to half of each year.”

That’s a million pounds per chalet. There were 25 involved in the litigation but 91 in total, some with a less onerous system of payment for services. The outcomes would vary depending on when the leases were issued. Nevertheless, if the clause in the lease were allowed to stand, the lessors would have pulled in hundreds of millions in pure profit over the 99 years of the lease. This on a term of the lease which, it is axiomatic, should not be profit-making since it is merely for the lessor to recover expenditure on ongoing maintenance of the common facilities (see Lease – though holiday chalet leases aren’t covered by legislation for homes).  Continue reading

2 Comments

Filed under Analysis, Business, Business law, Comment, Consumer Law, Financial Law, Law, Legal, UK Law

Deprivation of Liberty Safeguards descend into costly chaos

Is Britain’s Deprivation of Liberty Safeguards regime, intended to protect people receiving state care in care homes, hospitals and supported living schemes, turning into an expensive legalistic shambles as a result of a controversial human rights case in the UK Supreme Court? The case, Cheshire West ([2014] UKSC 19 ), was intended to deal with a very real problem: that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights (right to liberty) – even though they are put in place in the interests of the disabled person and even if they are living in a family home. But a couple of bizarre recent cases in the lower courts suggest there is a real problem.

Critics of the Supreme Court position on Deprivation of Liberty Safeguards (DoLS) talk of “gilded cages” and argue that human rights should not intervene too rigidly in the discretion of social workers acting in the best interests of clients lacking capacity. Nevertheless, to have no protections in place or to deny them to people without capacity would clearly be wrong and specifically a breach of Article 5 and Article 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination”.) The Supreme Court came up with a new definition of deprivation of liberty:

“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.”

Compliance or even agreement by the person involved did not prevent the arrangements being a deprivation of liberty. It followsed from this that social services staff had to put care plans under more intense review and particularly that social services departments could not authorise their own social workers’ schemes when they involve domestic supported living arrangments or complex cases – which require the sanction of the Court of Protection. (Note on the judgment here) Once a court has found deprivation of liberty, a regime of expensive legal safeguards must be put in place with oversight by the courts. This is the real issue of controversy as far as local authorities are concerned.
Continue reading

Leave a comment

Filed under Analysis, Comment, ECHR, European Convention on Human Rights, Human rights, Law, Legal, Politics, Public law, Social welfare, UK Law, UK Politics, Welfare law

Newhaven Port: Why UK Supreme Court ruled beach cannot be village green

There was bad news and worse news for village green campaigners in the long UK Supreme Court judgment in R (Newhaven Port & Properties Ltd) v East Sussex County Council. The council and locals have lost the use of West Beach on the Sussex coast as the local port authority seeks to develop the port. The worse news is that the court has sought to close off all hope of turning beaches into village greens to protect them from development.

The reasons for rejecting the Newhaven village green claim are complex and rather narrow – though they will stymie many village green claims against public authorities or companies acting on their behalf with statutory duties and powers.

But the Supreme Court justices also allowed themselves free rein to preempt any wider bathing beach claims that fall outside the limited Newhaven definitions. Although they didn’t come to a final conclusion on this, Lord Carnwath did much of the spadework that would suggest village green applications on beaches would not be entertained. Consideration of the wider points will require another post at some time. Here the specifics of Newhaven are examined.

The Supreme Court case 2015
East Sussex County Council decided to register West Beach as a “town or village green” under the Commons Act 2006. Such registration gives certain planning protections to land and has been used to prevent development. Anyone can apply for registration for land where (according to Section 15(2) the Act

“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 [the prescription period]; and 

(b) they continue to do so at the time of the application.” 



Crucially “as of right” means without specific permission from the owner: “nec vi, nec clam, nec precario” (not by force, nor stealth, nor the licence of the owner – precario meaning a permission that can be easily withdrawn). In April 2006, before the Act came into force, the owner of the beach, Newhaven Port and Properties Ltd (NPP), a statutory port authority, fenced it off to keep people away. Objectors said the public had established the required 20 years of use before the fencing went up. They said their use must have been “as of right”, meaning they behaved as if they had the right to be there even though they didn’t. There had previously been no fences or warning notices for example.

Continue reading

Leave a comment

Filed under Analysis, Comment, Law, Legal, Politics, UK Law, UK Politics

Barkas case: Judicial anarchy on the village green

Was the Supreme Court right to overrule the leading village greens case of R (Beresford) v Sunderland City Council (2003) in its recent judgment in R (Barkas) v North Yorkshire County Council (2014; pdf)? There is a strong argument to suggest Lord Neuberger et al have overstepped the mark in declaring Beresford no longer good law – in a gross breach of the rules of judicial precedent on which our law relies. The result will be that it will be far more difficult from now on to have land designated as village greens, protecting it from development.

  The Supreme Court is supposed to accept earlier judgments of the same court, even if the current incumbents think they are wrong, unless there are very good reasons not to, such as a material change in circumstances or strong public interest. That allows for legal certainty, so people can act according to the known law, as examined and approved by the highest court in the land, rather than seek to rerun a similar case a few years later in the hope that the judicial dice might fall a different way. That is the principle that Neuberger et al have thrown to the four winds in disapproving Barkas.

   There are supposed to be limitations on the rare occasions when the Supreme Court can breach precedent and overrule itself. In particular the overruling must help to resolve the case before them. That was not so in Barkas. Lower courts and the Supreme Court itself had all resolved the case (rejecting the application to turn a piece of land in Whitby into a village green) by distinguishing it from Beresford – different facts, different law. There was no requirement to then go on to overrule Beresford – indeed the rule is that they should not go on to overrule the earlier case. But the Supreme Court Justices did so anyway.

Continue reading

4 Comments

Filed under Constitution, Law, Legal, Politics, UK Constitution, UK Law, UK Politics

Can Pepper v Hart save Julian Assange?

The UK Supreme Court Julian Assange European Arrest Warrant case has been delayed for two weeks for new legal arguments to be put regarding the meaning of the UK legislation that enacted the EAW system. Those arguments may draw on the minority pro-Assange judgment of Lord Mance who made interesting use of the principle in Pepper v Hart [1992] UKHL 3 (summarised below) – that judges may consult speeches in Parliament to establish the purpose or meaning of statutes.

The issue at stake is whether “judicial authority” (the words used in the 2003 Extradition Act) for the purpose of issuing the arrest warrants can include mere prosecuting authorities, as is the practice in some European countries.

Sweden’s prosecutors are seeking Assange’s arrest to question him on allegations of sexual offences. If UK law requires a court or judge to issue the warrants, then Sweden cannot have him. It is a question of how the words “judicial authority” are interpreted, and Mance cited parliamentary debate on the Extradition Bill in Hansard to suggest that MPs were clear in their minds that they were voting for judges and courts, not for prosecutors. Continue reading

2 Comments

Filed under Constitution, Law, Legal, Politics, Public law, UK Constitution, UK Law, UK Politics