Sunday, 22 March 2015

Pre Referendum but Post Election Scottish Devolution Madness

You will recall that there are some Vows re Scottish Devolution to be made good.  They were made by the Unionist parties in a desperate attempt to avoid referendum defeat.  The HoC Political and Constitutional Reform Committee has rightly criticised some proposed clauses for amendment to the Scotland Act which are said to be the means of implementing some of the vows. They are in legal and constitutional terms utterly vacuous and frankly a bit bonkers:

For example a new sub-section 1A to be added section 1 of the Scotland Act:

(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom's constitutional arrangements.
Recognised by who?  Does not actually say it is permanent because one Parliament cannot bind another.  The Scottish Parliament is no more permanent than anything else declared to exist by a Act of Parliament; it can be repealed at any time by simple majority.  What makes the Scottish Parliament permanent is politics not law.  Even if the Scottish Parliament was entrenched in a Federal UK Constitution, it would still not be permanent, because even constitutions can be amended and overthrown.

& then it gets worse - the Sewel Convention says that the UK Parliament will not legislate on a devolved matter except with the agreement of the Scottish Parliament - that can only be a convention, because again, the supreme sovereignty of the UK Parliament cannot be fettered by any such rule.  So then we get this proposed as a clause:

"(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."

What does normally mean?  What does "will" mean when the said Parliament can repeal this sub-section in the blink of an eye?

Bonkers, meaningless and of no legal effect.  

This is all politics, not law.

Thursday, 19 March 2015

Scottish Judicial more automatic right of appeal in civil cases to UKSC....

Never quite got my head around the Scottish Legal System, never had to.  But have noticed that the Scottish Parliament has passed an Act to reform it recently.  As far as I can tell (which may be not very far at all) there is to be a new Sheriff Appeal Court to sit between the first instance criminal and civil Sheriff and Justice of the Peace Courts and the Court of Session/High Court of Justiciary which will become a second tier of appeal in such cases.  One other major reform is to abolish the automatic right of appeal from the Court of Session to the UK Supreme Court in civil cases (you cant' appeal in criminal cases - the High Court of Justiciary in Edinburgh is your last stop bar Europe).  Currently if two Advocates sign a Notice of Appeal then the UK Supreme Court have to hear the case, no need for permission from the Court below or above; which is very much not how the Supreme Court works re the rest of the UK.  Section 117 Courts Reform (Scotland) Act 2014 is going to put an end to that historical asymmetry:

Appeals to the Supreme Court (1) An appeal may be taken to the Supreme Court against a decision of the Inner House mentioned in subsection (2), but only— (a) with the permission of the Inner House, or (b) if the Inner House has refused permission, with the permission of the Supreme Court. 

Don't know whether this is an attempt by the SNP to keep more appeals in Scotland, but we'll see......

Saturday, 14 March 2015

Now that's how to end a judgment... with a beer and some latin....

This is how Justice Neville Owen ended his 2614 page judgment in Bell Group v Westpac [2008] WASC 239 - Australia’s longest running corporate insolvency case (404 days of hearing over a 5 year period at legal costs of over $300M and involving 80,000 documents.)

You have to feel for the chap

The trial: a final reflection

9759 I am not so naïve as to believe that the handing down of these reasons will mark the end of the litigation. But stranger things have happened. It is still not too late for the parties to put an end to this saga by a negotiated settlement, guided (perhaps) by the findings I have made. If formal judgment is never entered, or of there is a consent judgment on negotiated terms (whether or not they accord with what is contained in these reasons) I will be the last person to complain.

9760 Whatever the parties decide to do from here, my role in the litigation will come to an end in the near future. Selfish though it may seem, for me that is the primary concern. I will try to engender sympathy for those who come after me: but I make no promises.

9761 From time to time during the last five years I felt as if I were confined to an oubliette. There were occasions on which I thought the task of completing this case might be sempiternal. Fortunately, I have not yet been called upon to confront the infinite and, better still, a nepenthe beckons. Part of the nepenthe (which may even bear that name) is likely to involve a yeast based substance. It will most certainly involve a complete avoidance of making decisions and writing judgments.

9762 For the moment, in the words of Ovid (with an embellishment from the old Latin Mass): Iamque opus exegi, Deo gratias.

Sunday, 15 February 2015

That's the spirit....

The Prosecution have to prove that you did it....not enough that you actually did it...

Tuesday, 3 February 2015

Robust but unfair case managment

One for the files, to be dragged when the local circuit judge is having a bad day and is being robust but unfair.  Judgment here.

A Circuit Judge (His Honour Judge Dodds) sitting in the Fam Ct in Liverpool thought he would cut through the red tape by making a final care order at the first case management hearing - here is a flavour:

All the parties crumbled under the judge's caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews). At one stage the judge referred to the mother as looking "upset and bewildered". It is hard to see how she could have looked otherwise given the course the proceedings were taking.  The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children.

The Judge thought he was on safe ground because MacFarlane LJ had refused permission to appeal a similar approach in an earlier case, but on this occasion he gave permission.  Robust, but not fair, said the Court of Appeal.

In the same week the Court of Appeal dealt with another case concerning this judge.  This is taken from the Lawtel summary (RE A (CHILDREN) (2015) CA (Civ Div) (Aikens LJ, Black LJ, King LJ) 29/01/2015):

The judge's unrestrained and immoderate language had to be deplored. The appeal would be allowed and the application remitted. It was to be hoped that the judge would read the transcript of the hearing and be embarrassed. Appointment as a judge was not a licence to be gratuitously rude to those appearing before him. It was to be emphasised that the instant comments related only to the instant matter.

Further I found this from 2014 about the same judge: T (A Child) [2014] EWCA Civ 929

 I conclude that the judge failed on this occasion to grapple with and engage upon a proper analysis of the issues here. He did not help himself by failing to have regard to the statutory structure.

Looks like there is a local problem which needs to be sorted out...............

In the instant case, Lewison LJ has some fine things to say which are worth keeping up your sleeve for deployment from time to time:

It has long been a fundamental principle of English law that justice must not only be done, but must be seen to be done. Where a judge has apparently made up his mind before hearing argument or evidence that principle has undoubtedly been breached. A closed mind is incompatible with the administration of justice. But in such cases it is always possible that justice itself has not been done either. As Lord Neuberger MR recently put it in Labrouche v Frey [2012] EWCA Civ 881 at [24]:

"Any experienced judge worthy of his office will have had the experience of coming into court with a view, sometimes a strongly held view, as to the likely outcome of the hearing, only to find himself of a very different view once he has heard oral argument."
Longer ago in John v Rees [1970] Ch 345, 402 Megarry J said:

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
Moreover where parties arrive at court expecting to participate in a hearing that is to deal only with procedural aspects of progressing a case towards a final hearing, it is quite wrong for the court, on its own initiative and without prior notice to the parties – let alone any invitation from any of them – to treat the procedural hearing as if it were the final hearing and to make such a drastic order as the judge made in the present case. Had a party invited the judge to make the order that he in fact made without notice to the other parties one would have described it as "an ambush". The fact that it came from the court makes it worse, not better.

Parties are also entitled to know why judges make the decisions that they do. This necessarily entails giving reasons for decision, not merely announcing conclusions. The reasons may be brief but they must be explanatory. Justice will not be done if it is not apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16].

In both civil and family cases the Court of Appeal has said on more than one occasion that it will uphold robust but fair case management decisions by first instance judges: Cherney v Deripaska [2012] EWCA Civ 1235 at [17], [30]; Re TG (a child) (care proceedings: biomechanical engineering evidence) [2013] EWCA Civ 5, [2013] 1 FCR 229 at [35], [36]. Both adjectives are important. Robustness cannot trump fairness.

Family cases, however inquisitorial and streamlined they may be, are not exempt from these basic principles. As the President put it in Re TG at [37]:

"The task of the case-management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention)."
It was for these reasons, as well as those given by the President and Eleanor King LJ, that I joined in the decision to allow the appeal.

Sunday, 18 January 2015


I was wondering when the Purdah Period would kick in this year - that special pre-election period when HMG almost grounds to a halt, because making any big decisions which would prejudice an incoming govt of a new stripe (or at least different configuration in these times of coalition) is put on hold until a new Govt is formed.  I consulted the closest we have to a written constitution, The Cabinet Manual, but that is as clear as mud as to timing  (extract below) because the Cab Office issues guidance bespoke to each election.

Looking at previous guidance, 6 weeks before the election looks to be about the norm - so 26th March looks about right - which is 4 days before Parliament dissolves (which is now fixed by section 3 Fixed Term Parliaments Act 2011 as amended in 2013 by the Electoral Registration and Administration Act 2013) we have 9 weeks to go.......

Government activity between the start of an election period and polling day

2.28 In the period immediately preceding an election, the Cabinet Office publishes guidance on activities in the run up to polling day.

The Prime Minister writes to ministers in similar terms.

During this period, the government retains its responsibility to govern, ministers remain

in charge of their departments and essential business is carried on.24 Ministers continue

in office and it is customary for them to observe discretion in initiating any action

of a continuing or long-term character. This means the deferral of activity such

as: taking or announcing major policy decisions; entering into large/contentious

procurement contracts or significant longterm commitments; and making some

senior public appointments and approving Senior Civil Service appointments, provided

that such postponement would not be detrimental to the national interest or

wasteful of public money. If decisions cannot wait they may be handled by

temporary arrangements or following relevant consultation with the Opposition.

Friday, 16 January 2015


retires today:

His Honour Judge Brian John Barker QC retires as Senior Circuit Judge and the Recorder of London with effect from 16 January 2015.His Honour Judge Barker QC (70) was called to the Bar (G) in 1969, took Silk in 1990 and elected a Bencher in 1999. He was appointed a Recorder in 1985 and a Legal Member of the Mental Health Review Tribunal, Restricted Patients Panel, in 1993. He was appointed a Senior Circuit Judge in 2000, Common Serjeant of London in 2005 and the Recorder of London in 2013.

As Judge Barker did before, the current Common Serjeant will take up the reins:

The City of London Corporation has announced the appointment of His Honour Judge Nicholas
Hilliard QC as the next Recorder of London. Judge Hilliard, the current Common Serjeant, will take office in January 2015, in succession to His Honour Judge Brian Barker QC, who has served as Recorder of London since February 2013. In addition to duties as the senior judge of the Central Criminal Court (known as the ‘Old Bailey’), the Recorder of London is the Senior Law Officer of the City of London and officiates at key City elections. He also has official duties on State occasions where the City acts as host.