These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq.  The first set (“the Challenger claims”) arise from a “friendly fire” incident involving British tanks. The second set (“the Snatch Land Rover claims”) arise from the deaths caused by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling. The third (“the Ellis negligence claim”) is based on various alleged failures on the part of the MoD.

The following issues were before the Supreme Court: In relation to the Snatch Land Rover claims, whether at the time of their deaths, the two British servicemen were within the jurisdiction of the UK for the purposes of the ECHR. If they were, whether – and if so, the extent to which – ECHR, art 2 imposed positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fell within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances.

Held, in relation to the Snatch Landrover claims, the Supreme Court overturned its earlier judgment on the issue in R (Catherine Smith) v MoD [2011] 1 AC 1, holding unanimously that soldiers were under the personal jurisdiction of the UK at all times when serving out of the UK by virtue of the fact that the UK exercised full authority and control over them.  It further held by a majority that the question of whether a positive obligation to protect their lives had been breached required examination of the facts and that neither combat immunity, public policy or non-justiciability precluded a duty of care existing as a matter of principle.

In relation to the Challenger and Ellis negligence claims, the Supreme Court by a majority rejected the MoD’s arguments that the claims should be struck out, allowing the claims to proceed. The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy.

For judgment, please download: [2013] UKSC 41
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The post New Judgment: Smith & Ors v Secretary of State for Defence; and two other cases [2013] UKSC 41 appeared first on UKSC blog.

The respondent solicitor’s practice is on a main road, in a property originally built as a dwelling. The garden at the front of the property was turned into a forecourt for use as a car park for staff and clients. In order to enter and leave the forecourt cars are required to cross a footpath. The appellant local authority informed the respondent that the movement of vehicles across the footpath was dangerous, and it intended to erect barriers to prevent cars from driving over the footpath.

At first instance, the respondent’s request for an injunction restraining the council from erecting the barriers was refused, with the county court holding that the Highways Act 1980, s 80 permits a highway authority to erect fences or posts for the purpose of preventing access to a public highway in certain circumstances. The Court of Appeal held that s 80 was not applicable because the situation was covered by s 66(2) of the 1980 Act, which empowers a highway authority to erect fences, posts etc. if necessary for the purpose of safeguarding persons using a highway, and would (unlike s 80) require compensation to be paid to the respondent.

The Supreme Court unanimously allowed the appeal. The local authority was entitled to rely on the clear wording of s 80 in order to erect barriers in front of the respondent’s property. It did not matter that s 66(2) could be used to achieve the same objective. However, a highway authority’s use of s 80 could be challenged if it circumvented the specific prohibitions of the use of the power conferred by s 66(2).

The Human Rights Act 1998 did not preclude the local authority from relying on s 80 as it amounted to a control of the use of property, not a deprivation of property. Also, this case concerns land development and town planning, in relation to which the state enjoys a wide margin of appreciation.

For judgment, please download: [2013] UKSC 40
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The post New Judgment: Cusack v London Borough of Harrow [2013] UKSC 40 appeared first on UKSC blog.

The respondent Treasury made an order under the Counter-Terrorism Act 2008, which effectively shut down the operations of the appellant Iranian bank. The bank made an application under s 63 of the 2008 Act to set aside the order, and the Government argued that some of the evidence relied on to justify the order was of such confidentiality and sensitivity that it could not be shown to the bank or its representatives.

The High Court accepted the Government’s case that the evidence in question had to be dealt with by a closed material procedure, and handed down an open judgment that dismissed the bank’s application, and a closed judgment only seen by the Treasury. The Court of Appeal held a largely open hearing, with a short closed hearing which considered the previous closed judgment, and dismissed the bank’s appeal.

The Supreme Court appeal was split into two issues: the first concerned the use of a closed material procedure in the SC; the second concerned the bank’s appeal against the decision to dismiss the application to set aside the order.

The Supreme Court handed down two judgments. In the first ([2013] UKSC 38) it was decided by a majority of six to three (L Hope, L Kerr and L Reed dissenting) that it was possible for the SC to adopt a closed material procedure on appeal, and was appropriate to do so in this instance.

The Constitutional Reform Act 2005, s 40(2) provided that a route of appeal lies to the SC from any Court of Appeal judgment, and that must extend to wholly or partially closed judgments. Appellate courts can only consider closed judgments in a closed hearing, at least at first sight. S 40(5) of the 2005 Act gives the Supreme Court the power to determine any question necessary for the purposes of doing justice. Not considering the closed material would, in many cases, not be doing justice. In this case there was found to be nothing in the closed material that would have affected the Supreme Court’s reasoning in the substantive appeal.

The dissenting minority considered that Parliament had not conferred the power to conduct a closed material procedure on the SC. There was a strong presumption that Parliament did not intend to interfere with the exercise of fundamental rights, and for the SC to conduct a closed trial would be contrary to fundamental principles of the common law right to a fair trial. The Supreme Court did not have the structure or safeguards deemed essential for those courts which are expressly permitted to conduct such hearings.

In the second judgment ([2013] UKSC 39) the Supreme Court allowed Bank Mellat’s appeal on the procedural ground by a majority of six to three (L Hope, L Reed and L Carnwath dissenting), and on the substantive grounds by a majority of five to four (L Neuberger, L Hope, L Dyson and L Reed dissenting).

On the procedural ground the bank succeeded as it had received no notice of the Treasury’s intention to make the order, and therefore had no opportunity to make representations before it was made.

The interruption of Bank Mellat’s commercial dealings in the UK did not bear a rational and proportionate relationship to the purpose of hindering the pursuit of nuclear weapons by Iran. The risk was not specific to Bank Mellat but an inherent risk of banking, and the risk posed by Bank Mellat’s access to certain markets was no different to that posed by comparable banks.

For judgment, please download: [2013] UKSC 38 and 39
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The post New Judgment: Bank Mellat v Her Majesty’s Treasury (Nos. 1 and 2) [2013] UKSC 38 and UKSC 39 appeared first on UKSC blog.

 “All four essays were in their differing ways intelligent and perceptive; it is not surprising that each was short-listed.”

Congratulations to Daniel Isenberg, whose essay on dissent and collegiality amongst Supreme Court judges (by way of the FA Rule book!) has been selected as the winning entry. First runner up was Michael Green, who wrote about the place of dissent in the future of common law. Second and third runners up were Lucas Ford and Adam Coomer respectively.

Although the essay question on “rogue justice” proved popular, there were some notable entries on the subject of the Supreme Court as a constitutional entity, frequently discussing the influence of Europe on the Court. There were some interesting metaphors employed in the entries including Supreme Court judgments as a tube of Smarties, law as overgrown ivy, the judiciary as a tree, and the personification of the essay title into a superhero.

Thanks to everyone who submitted an entry, and we’ll be posting a selection of essays soon.

The post UKSC Blog Essay Competition 2013 – We have a winner! appeared first on UKSC blog.

The case concerned an arrangement involving the first appellant (WHA) to minimise the overall VAT liability in relation to the supply of repairs and parts pursuant to motor breakdown insurance (“MBI”).

The case is interesting because, despite the range of arguments deployed by both sides, the court based its decision solely on the reasoning in its most recent VAT decision in HMRC v Aimia Coalition Loyalty UK Ltd (formerly known as Loyalty Management UK Ltd) (the case comment for which is here).

Facts

WHA was party to an arrangement that was designed to overcome the fact that an insurance company would not normally be able to recover the VAT it incurs on the supply to it of repairs and parts because it is making VAT exempt supplies of insurance.

The facts of the arrangement were highly complicated, but in essence what happened is as follows. National Insurance & Guarantee Corporation plc (“NIG”) supplied MBI to individual customers. NIG entered into an agreement with a company incorporated in Gibraltar, Crystal, for the reinsurance of its liabilities under these MBI policies. Crystal then retroceded 85% of the reinsurance to another Gibraltar company, Viscount (the second appellant). Viscount contracted with WHA to enter into agreements with garages for the making of any repairs required under the MBI policies. WHA and the Gibraltar companies were all in the same group of companies.

When a customer made a claim under its MBI policy, WHA would directly invoice the garage making the motor repairs for the cost of those repairs (and any necessary parts). That supply was subject to VAT. WHA would invoice Viscount for the services it provided to Viscount.

WHA argued that it was entitled to recover as input tax the VAT on the supply to it of repairs (and any necessary parts) by the garages (under the Value Added Tax Act 1994, s 24(1)).

HMRC argued that the supply by the garages was to the individual customers whose car was being repaired, and not to WHA.

Additionally, HMRC argued that, even if this was not correct, the EU law doctrine of “abuse of rights”, developed by the CJEU in Halifax plc v Customs and Excise Commissioners, should apply on the facts, such that the arrangements involving NIG, WHA and Viscount should be redefined in order to prevent WHA recovering this VAT as input tax, because to allow it to do so would be an abuse of the right of input tax recovery provided under the VAT Directive.

The decision of the Supreme Court

The Supreme Court ruled that the arrangements fell at the first hurdle. Lord Reed (who also gave the majority decision in Loyalty Management) considered that the economic reality of the arrangements was that WHA was simply agreeing to make a payment to the garage to cover the cost of the repairs.

Following Loyalty Management, the payment by WHA to discharge an individual’s legal obligation to make a payment in respect of these repairs was not sufficient for the payment to be treated as consideration for a supply of goods and services to WHA, such that WHA could recover the VAT in relation to that payment as input tax.

This was supported by the fact that the economic burden of the supply of goods and services was not borne by WHA; whatever it had to pay to the garage (including VAT) it recovered from Viscount.

The Supreme Court therefore did not need to consider the effect of the abuse of rights doctrine, as WHA was not entitled to recover the VAT as input tax under general VAT principles.

Comment

The decision is interesting as it shows how the judgment in Loyalty Management can be applied to, in effect, strike down tax avoidance arrangements without the need to resort to the abuse of rights doctrine.

By focussing on the economic reality of the arrangements it was relatively straightforward for the court to determine that little had happened through the insertion of WHA other than to pass NIG’s obligation to pick up the cost of the repairs through a chain of related companies to WHA.

Had NIG simply met the cost itself then it would not have been able to recover the VAT as input tax for the same reason – it is not receiving a supply of goods and services from the garage itself, rather it is simply meeting the cost of the supply which is made to the individual. The outcome should be no different because the obligation to meet this cost was passed to WHA.

The post Case Comment: WHA Ltd & Anor v HM Revenue and Customs [2013] UKSC 24 appeared first on UKSC blog.

At issue in Cusack v London Borough of Harrow is whether, given a choice of apparently overlapping powers, a public authority is entitled to proceed under the power which is most economic to the public purse – or whether it is confined to the power most pertinently aligned to the object sought to be achieved.

The question arose in the context of a local authority’s proposed obstruction of the private right of access to the highway of the owner of land abutting the highway (“the frontager”). The Court of Appeal (in a judgment by Lewison LJ, with whom Ward LJ and Aikens LJ concurred), held that the local authority was confined to the statutory provision specifically tailored to the object of securing the highway safety objectives it sought to achieve. In this case, that entailed the payment of compensation to the property owner for damage sustained by reason of the works the Council proposed to undertake. The appeal against the Court of Appeal decision was heard by Lords Neuberger, Mance, Sumption, Carnwath and Hughes on 23 April 2013.

The relevant statutory provisions

The statute at issue in Cusack is the Highways Act 1980 (“the Act”). Section 66 of the Act confers on a highway authority a range of powers for the purpose of safeguarding persons using the highway. In particular, section 66(2) allows a highway authority to

 “provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.”

 By virtue of section 66(8), a highway authority is obliged “to pay compensation to any person who sustains damage by reason of” works undertaken by the highway authority under section 66(2).

As a matter of statutory construction, it is clear from a close reading of section 66 of the Act that the compensation to be paid under section 66(8) is not primarily contemplated as compensation for interference with property rights. Section 66(8) makes provision for compensation for any damage sustained by reason of works undertaken under section 66(2) or section 66(3). Section 66(5) makes it clear that section 66(3) cannot be exercised so as to obstruct private access to premises. No such limitation applies to the power under section 66(2). Hence it is clear from section 66 read as a whole that the power under section 66(2) can be exercised so as obstruct a private right of access to any premises. The inference must be that the compensation contemplated in section 66(8) is intended to cover any damage sustained by reason of the works – including, but not limited to, damage caused by obstructing a private right of access to premises.

Section 80(1)(a) of the Act allows a highway authority to “erect and maintain fences or posts for the purpose of preventing access to…a highway maintainable at public expense by them”. From the provision as a whole it is clear that this power cannot be used to obstruct a public right of way, but can be used to obstruct a private right of way.

Unlike section 66, however, section 80 contains no provision requiring compensation to be paid to any person who sustains damage by reason of the exercise of the power in question.

The facts

Mr Cusack is a solicitor whose practice is located at a former dwelling at 66 Station Road Harrow.  He, his staff and his clients park in the forecourt in front of the building, which is open to the highway – the A409 -  which at that point is a single carriage road in each direction, flanked by a pedestrian footway; colloquially, a pavement. In order to enter the forecourt, cars must drive over the payment, and in order to leave, they must reverse over the pavement and into the road. Mr Cusack has used this method of access to and egress from the property for many years.

In early 2009, the London Borough of Harrow, as highway authority, (“the Council”) wrote to Mr Cusack asserting that the movement of vehicles over the pavement “causes danger to both pedestrians and other motorists”.  This was followed by a letter from the Council’s contractors in March 2009, advising that the Council was planning to erect barriers from 36 to 76 Station Road to prevent vehicles from driving over raised kerbs and footways. In response, Mr Cusack sought an injunction in the County Court restraining the Council from erecting the proposed barriers outside 66 Station Road.

Decision of the Court of Appeal

The County Court and the High Court accepted the Council’s contention that it could choose to proceed under section 66(2) or under section 80(1)(a) of the Act, and that, as the custodian of public funds, a public authority is entitled to invoke a power that does not entail the payment of compensation in preference to one that does. Hence each court in turn upheld the Council’s contention that it was entitled to erect the barriers pursuant to section 80 of the Highways Act, in terms of which no compensation was payable to Mr Cusack for any damage he sustained by reason of the works undertaken by the Council.

The Court of Appeal took a different view. Lewison LJ invoked the maxim of statutory interpretation: generalia specialibus non derogant (a general provision does not derogate from a specific one).  In application, as the Court of Appeal explained at paragraph 19, this means that

“Where there is a general provision and a more specific provision, and a course of action could potentially fall within both the court will usually interpret the general provision as not covering matters covered by the specific provision. “ (Cusack v London Borough of Harrow  [2011] EWCA Civ 1514.

It was the Council’s case that the purpose of the proposed barriers was to safeguard pedestrians and motorists using the A409.  That purpose – “safeguarding persons using the highway” – was exactly what was contemplated by section 66(2). The Court accepted that the language of section 80 of the Act also gave a highway authority a power to obstruct a frontager’s private right of access to the highway, but held that the Council was required to proceed in terms of the power whose object was most closely aligned with the purpose which the Council sought to advance.

The Court of Appeal therefore held that the power under section 80 did not apply to the facts of the case, and granted Mr Cusack a declaration to that effect. To the Council, the Court granted a declaration that it had the power to undertake the proposed works under section 66(2) of the Act. If the Council chose to do so, compensation would be payable to Mr Cusack. The Court of Appeal declined to grant Mr Cusack an injunction, or to hold that section 80 can never be used to curtail a frontager’s right of access to the highway.

The Court of Appeal reached its decision without reliance on the interpretative obligation in section 3 of the Human Rights Act 1988 to read and give effect to legislation in a way which is compatible with Convention rights, so far as it is possible to do so. Hence it did not give detailed consideration to Mr Cusack’s claim that the application of section 80 of the Act would infringe his right to property under Article 1 of Protocol 1 to the Convention. It gave a brief indication of its view that section 80 of the Act was compatible with Article 1 of Protocol 1 (“A1P1). This was because the right of a frontager of access to the highway is one of the bundle of rights that ownership of a particular property carries with it.  The Court considered that the exercise of the power under section 80 does not constitute a deprivation of property, but a control of use. Hence a wide margin of appreciation would apply, and the absence of compensation would not render the control unjustified or disproportionate.

The Court of Appeal granted permission to appeal on the point of statutory construction and the compatibility of section 80 with A1P1 – although the latter part of the judgment was obiter given the Court’s decision that the Council was required to undertake the proposed works pursuant to section 66.  Should the Supreme Court take a different approach to the question of statutory interpretation, and decide that it is open to the Council to proceed under section 80, the A1P1 point and the interpretative obligation in section 3 of the Human Rights Act 1988 will need to be considered.

The post Case Preview: Cusack v London Borough of Harrow appeared first on UKSC blog.

On Wednesday 19 June 2013 is the matter of R (Modaresi) v Secretary of State for Health. The appellant was detained under the Mental Health Act 1983 s 2; and applied to the First-tier Tribunal to challenge this decision, but it was held that the limitation period had been exceeded. The respondent refused to exercise his discretion under s 67 of the Act to refer the matter to the Tribunal on the grounds that other avenues of appeal were open to the appellant – by then she was being detained pursuant to s 3 and could make an application in respect of this detention, and if the tribunal were to uphold her detention, a further request under s 67 would be considered. The Supreme Court will determine the lawfulness of the respondent’s refusal.

On Wednesday 19 June 2013 the Supreme Court will hand down judgment in the following: Bank Mellat v Her Majesty’s Treasury (Nos. 1 and 2); Cusack v London Borough of Harrow; Smith & Ors v The Ministry of Defence; Ellis & Anor v Ministry of Defence; and Allbutt & Anor v The Ministry of Defence.

There are two Privy Council hearings: from Monday 17 until Wednesday 19 June 2013 is the matter of Lundy v The Queen, on appeal from the Court of Appeal of New Zealand. The Judicial Committee will determine whether the appellant, a man convicted for the murder of his wife and daughter, suffered a substantial miscarriage of justice stemming from the jury’s consideration of evidence in terms of the Crimes Act 1961 (NZ) s 385(1)(c).

On Thursday 20 June 2013 are the linked Bermudian appeals of Selassie v The Queen and Pearman v The Queen. Both appeals relate to criminal sentencing – in Pearman the issue is whether the trial court was entitled to impose on the appellant, in addition to a sentence of life imprisonment, a minimum term before possible release in excess of fifteen years; and in Selassie the issue is whether a maximum term that must be served before release in life sentences exists, and whether that term is unconstitutional.

The following Supreme Court judgments remain outstanding:

Benedetti v Sawiris & Ors, heard 26 – 28 February 2013.

R v Brown, heard 7 March 2013.

Abela & Ors v Baadarani, heard 10 – 11 April 2013.

Booth v The Parole Board, Osborn v The Parole Board and In the matter of an application of Reilly for Judicial Review (Northern Ireland), heard 16 – 18 April 2013.

Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly known as Contour Aerospace Ltd), heard 29 – 30 April 2013.

R (AA) v Secretary of State for the Home Department, heard 6 – 7 May 2013.

R (Sturnham) v Parole Board for England and Wales & Anor, heard 9 May 2013.

Apollo Engineering Ltd v James Scott Ltd , heard 13 May 2013.

Re Nortel Companies; Re Lehman Companies; and Re Lehman Companies (No 2), heard 14 – 16 May 2013.

Re an application by Central Craigavon Ltd for Judicial Review, heard 15 May 2013.

North & Ors v Dumfries and Galloway Council, heard 20 – 21 May 2013.

R v Hughes, heard 5 – 6 June 2013.

R (New London College Ltd) v Secretary of State for the Home Department, and R (West London Vocational Training College) v Secretary of State for the Home Department, heard 5 – 6 June 2013.

R (Chester) v Secretary of State for Justice, and McGeoch v Lord President of the Council & Anor, heard 10 – 11 June 2013.

Kapri v Lord Advocate representing the Government of the Republic of Albania, heard 13 June 2013.

The post In the Supreme Court w/c 17 June 2013 appeared first on UKSC blog.

The SFO added yet more barristers to its team of 25 counsel already involved in reviewing documents relating to the damages claims brought against the office by the Tchenguiz brothers. At last week’s pre-trial hearing it was revealed that the SFO has already spent over £100k on the disclosure review process. The brothers’ damages action was brought after they were arrested in dawn raids in March 2011 and the SFO’s investigation into their affairs failed. As it stands, the cost bill the SFO faces amounts to around 10% of its annual budget.

The second whole-life tariff of 2013 was handed down in Preston Crown Court. Dale Cregan pleaded guilty to four counts of murder and three counts of attempted murder, including the murders of two female police officers. The use of firearms was held to be an aggravating factor. Mr Justice Holroyde also stated that although the use of explosives attracted the same starting point in terms of sentencing as firearm murders, hand grenade murders were not something the courts were used to sentencing and highlighted the high tariff in this case as a deterrent. Other aggravating features included the high degree of premeditation and planning that went into the murders, including making a false report of an attempted break-in to lure the unarmed police officers to a residence for the purpose of killing them.

Retired footballer Paul Gascoigne brought a defamation and invasion of privacy action against the Daily Star after the tabloid published a video on its website (Caught on film: Gazza’s descent into booze and drugs madness) which was allegedly stolen from a mobile phone in his flat. The defamation claim relates to the paper’s allegation that Gascoigne was caught injecting cocaine, something he strongly denies.

A homeless man caught impersonating BBC television presenter Louis Theroux pleaded guilty in South Somerset Magistrates’ Court to dishonestly making a false representation. The defendant had booked a room at a pub under Theroux’s name, giving a telephone number for the BBC finance department as security. When he asked for two bottles of cava “and some fags” to be left outside his room, management became suspicious of the use of the word “fags” and investigated further.

The post The Week That Was appeared first on UKSC blog.

The appellants were questioned by the police in 1998 in relation to a murder, but due to a lack of evidence at the time proceedings were not commenced against them. They were eventually charged in 2005 and found guilty of the murder in 2010. Before their 2010 trial the appellants were found guilty of a series of sexual offences relating to children, and after the verdicts the trial judge referred to their records and commented that they were “evil, determined, manipulative and predatory paedophiles of the worst sort”. They were later tried by the same judge on the murder charge.

The issues for the Supreme Court were whether the appellants were ‘charged’ for the purposes of their right to a trial within a reasonable time in terms of ECHR, art 6 (the appellants argued that the clock started to run when they were first questioned in 1998); and whether the comments and conduct of the trial judge amounted to a breach of their right to a fair trial by an impartial tribunal under art 6(1).

The Supreme Court held that the date when the reasonable time began for the purposes of the appellants’ rights under art 6 was 5 April 2005; and that the trial judge’s conduct was not incompatible with the appellants’ right to a trial before an independent and impartial tribunal.

For the purposes of art 6 the rationale is that the person should not remain too long in a state of uncertainly; time runs from the date which the suspect’s position is substantially affected. In the UK this could be some time after a suspect is first questioned. Their preliminary questioning did not amount to an official notification that they were likely to be prosecuted.

On the issue of bias, the test in Porter v Magill [2001] UKHL 67 states that a judge would have to express outspoken opinions about the appellants’ character that were entirely gratuitous and plainly outside the scope of the proper performance of their duties for a fair minded and informed observer to doubt the judge’s ability to perform their duties with an objective judicial mind.

For judgment, please download: [2013] UKSC 36
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The post New Judgment: O’Neill (No 2) v Her Majesty’s Advocate; Lauchlan v Her Majesty’s Advocate [2013] UKSC 36 appeared first on UKSC blog.

The Court considered whether the English Court had jurisdiction to grant an anti-suit injunction pursuant to the general power in the Senior Courts Act 1981, s 37, thereby preventing the appellant hydroelectric power plant owner from bringing foreign proceedings against the respondent plant operator, in circumstances where no arbitration (pursuant to an arbitration agreement between the parties) was intended.

Unanimously dismissing the appeal, the Court held that English courts have a long-standing and well-recognised jurisdiction to restrain foreign proceedings brought in violation of arbitration agreements, even where no arbitration is in contemplation. There was nothing in the Arbitration Act 1996 that removed that power.

For judgment, please download: [2013] UKSC 35
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The post New Judgment: Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorstk Hydropower Plant LLP [2013] UKSC 35 appeared first on UKSC blog.