Legal News

When does the ‘right to be forgotten’ as established through case law ( Google Spain v AEPD ( Marion Costeja Gonzalez) arise and what does it aim to achieve? The so‑called ‘right to be forgotten’, crystallised in Google Spain, Case C‑131/12, [2014] All ER ( D) 124 ( May), recognises that data subjects may ask search engine operators processing personal data in the context of an EU establishment to remove links to their personal data from indexes and results for particular search queries. Whether such removal must extend to every domain run by a search engine remains disputed. This entitlement applies where, taking all the circumstances into account, personal data is: inadequate irrelevant or no longer relevant excessive in relation to the purposes of the processing undertaken by the search engine operator. In Google Spain, the European Court of Justice concluded that, as a...

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] All ER ( D) 47 ( Feb) What are the practical implications of the decision? In this ruling, the Supreme Court confirmed there is no blanket immunity excluding police liability in the context of preventing and investigating crime. The police owe a duty of care, consistent with orthodox tort principles, not to inflict foreseeable personal injury on others by their affirmative acts. Defence practitioners have called it the most significant police case in a generation. Because the Court articulated wide principles regarding duties of care in tort and the accountability of public bodies, the ramifications extend well beyond the traditional bounds of civil claims against the police. The Court therefore reasserted conventional tort doctrine over the more recent judicial practice of resolving matters through...

R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 The Supreme Court upheld a trade union’s appeal, deciding that the Lord Chancellor’s scheme requiring fees from claimants in employment tribunals and appellants to the Employment Appeal Tribunal must be quashed because it obstructed access to justice. What was the background to the case? Employment tribunals were set up as an informal, low-cost and accessible forum for resolving workplace disputes. Their jurisdiction covers a broad array of matters, including enforcement of key rights that attract little or no financial compensation, such as the right to a statement of terms and conditions and the right to rest breaks. Many tribunal claims have their origins in EU law, although a substantial number are solely domestic. Claimants are often in a vulnerable situation—typically the weaker party in the contractual...

What is Australia’s approach towards international free trade agreements? Australia is a proactive participant in global trade. In recent years, its commercial ties have centred on Asia, having lately finalised free trade agreements ( FTAs) with China, Japan and South Korea. Shortly after the 2016 EU referendum, the Australian Government signalled its readiness to negotiate an FTA with the UK. To advance this, a trade working group was established with a remit to ‘scop[e] out the parameters of a future ambitious and comprehensive’ FTA. The group first met in late November 2016. However, talks may not start until the UK has left the EU. How does Australia’s market compare to the UK? UK– Australia trade has taken place within the EU framework. The EU is Australia’s third-largest trading partner. Australia’s sales to the EU are dominated by mineral commodities (fuels and mining products) and...

In brief: When is an expedited trial appropriate in a public procurement case? ( Joseph Gleave & Son Ltd v Secretary of State for Defence) Original news Joseph Gleave & Son Ltd v Secretary of State for Defence [2017] EWHC 238 ( TCC) What should public procurement lawyers take note of? The judgment offers a helpful recap of the principles for deciding applications for an expedited trial, together with the core questions when considering a stay. It also makes plain that, despite Directive 89/665/ EEC as amended (the Remedies Directive), there is no presumption in favour of speeding up proceedings in procurement disputes, whether the challenge arises before or after the tender process has concluded. Applied to the facts, two practical lessons stand out: First, any party contemplating expedition should alert the opponent at the earliest opportunity to evidence genuine urgency. Second, a...

Original news R (on the application of Hicks and others) v Commissioner of Police for the Metropolis [2017] UKSC 9, [2017] All ER ( D) 129 ( Feb) The Supreme Court dismissed the appeals brought by four individuals arrested and detained during a royal wedding and subsequently released without charge, ruling that preventative detention followed by swift release fell within the exception to the prohibition on deprivation of liberty set out in Article 5(1)(c) of the European Convention on Human Rights in this context. What are the practical implications of the decision for lawyers and their clients? This ruling may indeed also prompt greater reliance on mass arrests rather than containment in the setting of public protest activity overall in practice. Similarly, that shift carries further consequences for data collection, as a formal arrest ordinarily results in the recording of the arrestees’ names and usually the taking of...

Original news Brexit must not trade away environmental protections, Committee warns, LNB News 04/01/2017 90 The Environmental Audit Committee has cautioned ministers that safeguards for the environment must not be diluted during the UK’s exit from the EU or thereafter, and urges the introduction of a new Environmental Protection Act alongside Article 50 TEU talks to preserve the UK’s high environmental benchmarks. Such legislation would limit the danger of ‘zombie legislation’—that is, EU-derived rules carried into domestic law but left unrefreshed, vulnerable to being whittled away via statutory instruments with scant parliamentary oversight. What prompted the Committee to issue this report? Titled ‘ The Future of the Natural Environment after the EU Referendum’, it forms part of a suite of inquiries by the Committee into the real‑world consequences for UK environmental policy once we leave the EU. This work follows an earlier...

The UK remains the global frontrunner in offshore wind, with 5GW already operating and a goal of 10GW of installed capacity by 2020. The scale of schemes is growing steadily, helping to capture significant economies of scale. For example, in February 2016 DONG Energy announced plans to proceed with construction of the 1.2GW Hornsea Project One offshore wind farm, set to become the world’s largest offshore wind farm (and expected to use Siemens 7MW turbines). The UK’s referendum decision to leave the EU has sent shockwaves through political and investment communities. Regarding offshore wind, ministers rapidly signalled after the vote their intention to maintain investment in clean energy, including offshore wind. For instance, on 29 June 2016 Amber Rudd, then Secretary of State for Energy and Climate Change, stressed the ongoing intention to bring forward more offshore wind, subject to further cost...

Original news Vukota- Bojic v Switzerland ( Application no 61838/10) What were the key issues considered by the European Court of Human Rights ( ECt HR)? In Vukota- Bojic v Switzerland, the ECt HR addressed two principal matters: whether covertly obtaining surveillance material amounted to a violation of ECHR, art 8 (‘right to respect for private life and family life’), and if such material was relied upon in legal proceedings, whether that would result in a breach of ECHR, art 6 (‘right to a fair hearing’) In considering whether security camera footage obtained through covert surveillance constituted an interference with the claimant’s art 8 rights, what were the main factors taken into account (the permanence of the records, refusal of the courts to destruct tapes, etc)? In essence, the court held that acquiring secret surveillance infringed ECHR, art 8. It confirmed that the scope of...

Introduction Most observers consider that, on its own, Brexit is unlikely to materially alter the regulation of the UK oil and gas sector, including activities on the UK Continental Shelf ( UKCS). This stems largely from the UK government’s longstanding control of energy policy, encompassing the development of oil and gas reserves. Core policy areas—such as licensing and taxation of exploration, appraisal, development and production—have always been, and continue to be, determined by the UK government, though elements of the industry have been shaped by the EU. Nevertheless, the referendum has set in motion other significant shifts that may have a substantial effect on the UK’s oil and gas industry and the wider energy industry for the reasons set out below. Does European law still apply? Will the current legal and regulatory framework change once withdrawal from the EU is complete? The...

Original news R (on application of Ingenious Media Holdings plc and another) v Revenue and Customs Commissioners [2016] UKSC 54, [2016] All ER ( D) 118 ( Oct) The Supreme Court ruled that statements made about the appellants by HMRC’s then Permanent Secretary for Tax to journalists at an off-the-record briefing were not justified under section 18(2)(a)(i) of the Commissioners for Revenue and Customs Act 2005 ( CRCA 2005). The court concluded that CRCA 2005, s 18(1) was designed to mirror the general principle of taxpayer confidentiality and that, properly construed, CRCA 2005, s 18(2)(a)(i) — read strictly — operates only as a limited carve-out, allowing disclosure solely where it is reasonably required for HMRC to carry out its core function. What was the background to the case? The Permanent Secretary for Tax had provided an off-the-record interview to two reporters from The Times about the...

What is the ideology behind CICs? What advantages do they have over local authority control of services? At its core, the rationale for transferring a council-run service into a community interest company ( CIC) is that establishing an autonomous, community‑orientated body—protected so that assets are applied for community benefit—releases potential for the service to grow and develop in ways that may not be possible if it remains under the local authority’s control. Placing management within a new entity is expected to free the CIC from inflexible managerial and pay frameworks associated with local authorities, together with stark financial constraints and the limited scope to secure third‑party funding. In turn, the CIC is anticipated to be more agile and to possess greater capacity for innovation. In many cases, services that are spun out could instead be operated by an independent charity. A key perceived reason for...

In brief what did Lord Dyson say about judicial review and in its place in a democratic society? In his speech, Lord Dyson maintains that judicial review is a cornerstone of a democratic society. He regards it as self-evidently a vital safeguard, offering an effective way to ensure executive public authorities meet their statutory duties and do not act unlawfully. As those duties arise from the democratic process, he argues, their enforcement is an essential handmaiden to democracy itself. Accordingly, judicial review is, in his view, the very antithesis of anything that weakens or poses a threat to democracy... How does Lord Dyson address the increase in the number of judicial reviews in England and Wales? Lord Dyson identifies three chief reasons for the growth in judicial reviews in England and Wales: He suggests the standard of review has been relaxed, in part because judges are no...

Original news Canary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks [2015] EWHC 1588 ( Ch) What is this case about? This matter concerns an appeal brought by Canary Wharf Group ( CWG), a London-based property company, against a ruling of the UK Intellectual Property Office ( IPO) that rejected the registration of CWG’s application to register the word mark CANARY WHARF, lodged in March 2013. The specification spanned printed matter (class 16) and services connected with real estate, building construction and design, car parking, landscape design and security (classes 36, 37, 39, 42, 44 and 45). By Decision O-423-14, the Hearing Officer refused the application on ‘absolute grounds’ under the Trade Marks Act 1994 ( TMA 1994), namely: trade marks lacking distinctive character must not be registered ( TMA 1994, s 3(1)(b)) trade marks consisting solely of signs or indications which may, in trade,...

Why are the protocols being amended? In his Final Report on Civil Litigation Costs ( January 2010), Lord Justice Jackson proposed retaining the pre-action protocols, while introducing targeted changes to improve how they work and to keep pre-action costs proportionate. He also advised creating a specific protocol for debt claims where a business pursues an individual. In response, a CPRC sub-committee was established to review and recommend any necessary amendments to the pre-action protocols. Although the sub-committee is still considering drafts of some protocols, several have been issued and, subject to ministerial sign-off, are expected to commence on 6 April 2015. Below is a summary of the protocols being revised and the stage each has reached, with links to the latest drafts where available. We will provide further updates as the CPRC publishes more material and will revise our Practice Notes once the...

News analysis Emerald Supplies Ltd v British Airways plc [2014] EWHC 3513 ( Ch), [2014] All ER ( D) 340 ( Oct) During proceedings about the defendant airline’s alleged participation in a cartel, the European Commission adopted a decision. A dispute arose over whether a redacted version of that decision should be made available to the parties for inspection and use in the case. The Chancery Division determined that a confidentiality ring between the parties ought to be established, permitting circulation of the decision among its members, together with a safeguard preventing the claimants from using it to launch any further proceedings. What is the background to this matter and the competing interests concerning disclosure of the Commission’s decision? The claim is brought by 565 claimants, following the European Commission’s air cargo cartel decision. In a press release dated 9 November 2010, the...

Original news Digital TV streaming service found guilty of copyright violations, LNB News 26/06/2014 New York Times, 26 June 2014: The US Supreme Court held that Aereo, a television streaming platform, breached copyright by capturing broadcast signals with miniature aerials and forwarding them to subscribers for payment. The ruling was a significant victory for US broadcast networks, which argued Aereo had used a high-tech method to pilfer their content. What is the state of unauthorised online streaming in the US? The Aereo judgment adds to a global discussion about third parties distributing broadcast programmes, stepping in between broadcasters and viewers. The case turned on whether US copyright law required permission from broadcasters when Aereo picked up their programmes off-air and sent them online to its users. As a general rule, retransmitting a broadcast to the public in a Berne Convention country will infringe the...

Original news Kohler Mira Ltd v Bristan Group Ltd [2014] EWHC 1931 ( IPEC), [2014] All ER ( D) 130 ( Jun). After the Patent County Court (as it then was) found that the defendant had infringed the claimant’s UK unregistered design rights, the Intellectual Property Enterprise Court held that the claimant should receive a sum equivalent to a royalty of 6.7% of the price at which the defendant sold the infringing shower units to its customers. Moreover, exercising its discretion with reference to policy considerations, the court ruled that the defendant could not invoke the defence of innocence under the Copyright, Designs and Patents Act 1988, s 233(1), when it was advanced for the first time during the damages inquiry. Briefly, what was the background to this judgment? This ruling concerns a damages inquiry following last year’s liability decision— Kohler Mira Ltd v Bristan Group Ltd...