UK Supreme Court Blog

EDITORS: Dan Tench, Laura Coogan, Cathryn Hopkins & Sophie Lalor-Harbord (Olswang)
Hugh Tomlinson QC, Matthew Ryder QC, Anthony Fairclough & Anita Davies (Matrix)

This post is part of a regular series published in the New Law Journal of quarterly reviews of the UKSC’s case law and newsworthy events, reproduced here with kind permission. 

Whilst the UK Supreme Court continues to see a high proportion of human rights and public law cases, its caseload for the Hilary Term was notably diverse.  Amongst other issues, the Justices were asked to consider noise levels in the knitting industry, the rights of nesting bats, collapsing oil rigs, and the characteristics of a barn as opposed to a dwelling house. 

Alongside these more esoteric cases, there were also some more traditionally “Supreme Court” decisions, such as whether it is still justified in law to grant immunity to expert witnesses in civil proceedings, and the remedies available in cases of unlawful detention by government power.  www.ukscblog.com has continued to review and provide commentary on the Court’s decisions: set out below are some of the highlights of the term, both in and out of the Court room.  

Statistics

At just over 14 weeks, the Hilary term was unusually long.  The UK Supreme Court heard 29 appeals and handed down 22 judgments (including conjoined appeals), meaning that since its inception in October 2009, the Court has heard 114 appeals and decided 96 of them.  The average of around 70 appeals each year is broadly similar to the old Judicial House of Lords.  However, the statistics do suggest that the new Court, which cost around £60m to set up and a reported £13m a year to run, is delivering on its manifesto aim to provide rapid access to justice.  Once permission to appeal has been granted, the Court typically renders judgment in around 7 to 8 months, with appellants succeeding in between 40 to 45% of cases.   At first glance that seems like a relatively high chance of success, though the ratio would be much higher if all those cases which are refused leave were included: our analysis on www.ukscblog.com suggests that around 60% of cases fall at the permission stage.  

Immunity of Expert Witnesses

For civil practitioners, one of the most interesting and potentially far reaching decisions of the term was Jones v Kaney [2011] UKSC 13.  The Supreme Court held that expert witnesses, giving evidence in legal proceedings, should no longer enjoy immunity from prosecution from their instructing client if they are found to be in breach of their contractual or tortious duty of care to that client.  Expert witnesses have enjoyed absolute immunity from suit under English law for over 400 years: however, following on from the decision of the House of Lords in Hall v Simons [2001] 1 AC 615 (advocates not immune from negligence claims), by a majority of 5 to 2 the Supreme Court held that the rule could no longer be justified. 

The starting point for the majority (Lords Phillips, Brown, Collins, Kerr and Dyson) was that every wrong should have a remedy, unless it was in the public interest to grant immunity: whilst the minority (Lord Hope and Lady Hale) were concerned of the chilling effect that abolishing immunity might have, and felt that such a fundamental rule change should be left to Parliament, the majority were undeterred by such considerations, pointing to the fact that since Hall v Simons there has been no shortage of barristers coming forwards to accept instructions.  The Court were quick to distinguish the position for witnesses of fact, for whom immunity still exists, but as Clare Montgomery QC has commented on www.ukscblog.com:

“The primacy given to the principle: “Where there is a wrong there must be a remedy” also suggests that other witnesses may be threatened by a loss of immunity.  What of the person who owes contractual duties of confidence; are they to be liable for any breach of confidence?  If police officers owe a duty of care to a person, could this effect the immunity of any officer who gives evidence or makes a witness statement in circumstances giving rise to an actionable breach of that duty? The process of whittling away the scope of immunity available to protect the participants in judicial processes appears to be far from over.”

Unlawful Detention

In a judgment described as being “a landmark victory in upholding a rule of fundamental constitutional importance“, the Supreme Court held by a 6-3 majority in WL (Congo) & KM (Jamaica) v SoS Home Department [2011] UKSC 12 that if an individual is detained by executive power in breach of public law duties, that individual may have a cause of action in the tort of false imprisonment.  The case arose from a period in which the Home Secretary published a policy on immigration detention pending deportation that included a presumption favouring the release of foreign national prisoners prior to removal.  Despite the official policy, the Home Office in fact applied an unpublished policy applying the opposite presumption, which was in breach of public law duty, and therefore the detention of the appellants constituted false imprisonment. 

Notwithstanding this, the Court only awarded the appellants nominal damages of £1 since, on the evidence, they would have been lawfully detained on other grounds, and so had suffered no loss.  The minority (Lords Phillips, Roger and Brown) went further, finding that this lack of causation should have prevented a cause of action accruing at all.  However, as Samantha Knights put it on www.ukscblog.com, “had the minority view prevailed, it would have been a dismal day for justice with the result that the state could wilfully ignore published policy on detention with impunity“. 

New Appointments

Undoubtedly the biggest news story of the term came away from the Court room.  After much press speculation, on 4 May Downing Street announced that Jonathan Sumption QC had been appointed as Justice of the Supreme Court following Lord Saville’s retirement.  Lord Justice Wilson’s appointment, following the retirement of Lord Collins, was also announced, but the column inches amongst the legal press tended to focus on the news that a practising barrister was being elevated from bar to the highest bench in the land without ‘serving time’ in the High Court or Court of Appeal. 

Whilst Mr Sumption’s appointment is the first time such a ‘leap frog’ has taken place under the Constitutional Reform Act 2005 (which now permits applications to sit in the Supreme Court from any barrister or solicitor with 15 years experience in practice, as well as from judges with a minimum of 2 years experience of “high judicial office”), it is not in fact without precedent.  In 1948 Lord Reid (formerly James Reid KC), and in 1949 Lord Radcliffe (formerly Cyril Radcliffe KC) were both made Lords of Appeal in Ordinary without previously serving as judges, and both went on to make famous contributions to English common law.

Nevertheless, the appointment has attracted some controversy.  Some senior judges are reported to be concerned that a precedent was being set for the most able barristers to swap their lucrative careers at the bar for the Supreme Court (itself a well remunerated post, compared to other judicial offices), without first spending time in the High Court and Court of Appeal, which is the traditional route for the country’s top judges to hone their judicial skills.  Such concerns may not have been assuaged by the news that Mr Sumption will not be taking up his post until later in the year, as he is reportedly honouring an existing brief acting for Roman Abramovich in the tycoon’s multi-billion dollar dispute with Boris Berezovsky, due to be heard over 12 weeks beginning in October. 

On the other hand, the new appointments regime was designed to promote openness and diversity in the judiciary, which, as is frequently argued on www.ukscblog.com, is of fundamental importance if public confidence in the rule of law is to be maintained.  Appointments direct from other areas of the legal profession, based on merit, will be welcomed by many as an important step towards furthering this goal.  Whichever perspective you take, the debate over appointments clearly shows that the Supreme Court, in common with most new institutions, is not immune from growing pains. 

Other Highlights of Hilary Term