Immigration – Appeal. The Court of Appeal, Civil Division, declared that it had and had always had no jurisdiction to hear the appellants' appeal against the decision of the Upper Tribunal (Immigration and Asylum Chamber) in Glasgow, dismissing their appeal against the respondent Secretary of State's refusal of leave to remain as a Tier 1 (Entrepreneur) Migrant. Although Form IA 157 was, in relation to appeals heard in Scotland or Northern Ireland, both a trap for the unwary and defectively drafted, the Court of Session had been specified as the court to which a renewed application for permission to appeal should be brought.
Immigration – European Economic Area nationals. The effect of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, was that an extended family member acquired a right of permanent residence under reg 15(1)(b) only if he had resided in the UK with the relevant EEA national for a continuous period of five years since being issued with a residence card. The Court of Appeal, Civil Division, in allowing the Secretary of State's appeal, rejected the respondent's contention that time began to run from the start of residence in a durable relationship with an EU citizen partner.
Extradition – Passage of time. The appellant's extradition would not be a disproportionate interference with his rights under art 8 of the European Convention on Human Rights, be unjust and oppressive due to his health conditions and/or so barred by the Extradition Act 2003 ss 14 and/or s 25. Accordingly, the Administrative Court dismissed his appeal against the order for his extradition to the Netherlands serve the remainder of a sentence of 26 months in relation to four offences described as participation in a criminal organisation and swindling.
Personal injury – Exposure to asbestos – Liability. Court of Session: In an action in which the relatives of a woman who died of mesothelioma sought damages, contending that the defender exposed her to asbestos dust in the course of her employment negligently and/or in breach of statutory duty, the court held that the pursuers had established liability both under s 63(1) of the Factories Act 1961 and at common law as they had proved that the processes undertaken in the defender's foundry during the period of the deceased's employment there created substantial dust, including asbestos dust, to which the deceased was regularly and frequently exposed; her exposure was to an extent likely to be injurious to her, as it ultimately was; that injury was reasonably foreseeable and the defender did nothing to prevent it.
Civil procedure – Service of summons – Unsigned citation form. Court of Session: Allowing a reclaiming motion in which the issue was whether the failure by an English process server to sign a form 13.7 citation rendered the service of the form and a copy summons incurably invalid, or whether relief might be available under the court's general dispensing power in rule of court 2.1, the court held that the commercial judge had erred in granting declarator that the summons had not been validly served; that it was open to it to exercise its dispensing power; and that the power should be exercised in the reclaimer's favour, thus allowing her ordinary action to proceed as if there had been no defect in the form 13.7 served on the defenders in that action.
Criminal evidence – Admissibility of evidence – Pilot – Excess alcohol in blood – Blood specimen. High Court of Justiciary: Allowing appeals by two pilots who were each indicted for the offence of performing an activity ancillary to an aviation function when the proportion of alcohol in their blood was in excess of the prescribed limit, who provided A' and 'B' samples of blood, the B' samples having been placed with their property, transferred to prison whilst they were remanded in custody and subsequently destroyed, the court held that that the sheriff erred in repelling objections to the admissibility of evidence relating to the 'A' samples on the basis that the 'B' samples had not been supplied to appellants: in the circumstances of the case there was no effective supply of the 'B' samples to them in terms of s 15(5) of the Road Traffic Offenders Act 1988.
Criminal law – Human Trafficking and Exploitation (Scotland) Act 2015 – Compatibility with EU Directive. High Court of Justiciary: In proceedings in which a Vietnamese man, who was prosecuted for, inter alia, producing cannabis, presented a compatibility minute, and a reference from the sheriff at Glasgow, posed three questions, the court held that the Human Trafficking and Exploitation (Scotland) Act 2015 was not incompatible with Directive 2011/36/EU in the absence of a statutory defence to the effect that the minuter had been compelled to act as he did as a direct consequence of being subject to human trafficking; in the absence of a statutory defence the continued prosecution of the minuter was not incompatible with the Directive, Article 47 of the EU Charter of Fundamental Rights and art 6(1) of the European Convention on Human Rights; and, the 2015 Act and continuation of the proceedings being compatible with the Directive, the court did not require to give directions additional to the standard directions so as to give effect to the Directive.
Immigration – Asylum – Fear of persecution – Fresh claim – Expert evidence. Court of Session: Refusing a petition by a Chinese national who challenged a decision that her further submissions did not amount to a fresh asylum and human rights claim on the basis of her religion as a Jehovah's witness and breach of Chinese family planning policy by having two children, the court held that the respondent's decision that the petitioner would not be entitled to rely, in support of her own hypothetical appeal, on evidence given by an expert witness in another case, was one that she was entitled to reach and not therefore unreasonable or irrational.
Solicitors – Complaints – Vexatious complaint. Court of Session: Refusing an appeal against the Scottish Legal Complaints Commission ('SLCC')'s determination that the appellant's complaint against a solicitor was vexatious and accordingly not eligible for investigation, the court rejected the contention that the SLCC's decision was not supported by the facts it found to be established: on the basis of the facts it found to be established the SLCC was entitled to conclude that there was no basis for the appellant's complaint and that the complaint was vexatious.
Contract – Consumer contract. The defendant company's challenge to jurisdiction failed, in a case concerning an investment the claimant had made through Bitcoin. The defendant, relying on art 25 of Regulation (EU) No 1215/2012, contended that A was bound by its standard terms and conditions, which provided that the courts of Cyprus were to have exclusive jurisdiction over all disputes and controversies arising out of, or in connection with, her customer agreement. The issue concerned whether A was a 'consumer'. The Commercial Court held that the purpose of A's contract had been outside of any business of hers and fell within art 17 of the Regulation. On that basis, the challenge to jurisdiction was dismissed.
Mental health – Persons who lack capacity. The Court of Protection, applying s 4 of the Mental Capacity Act 2005 (MCA 2005), approved, in part, the applicant's treatment plan concerning the first respondent, a 78-year-old man who suffered from advanced vascular dementia, and whose physical condition had significantly deteriorated.
European Union – Environment. By the adoption of Implementing Decision C(2016) 3549 final, the European Commission had granted three waste recycling companies an authorisation for uses of bis(2-ethylhexyl) phthalate (DEHP) under Regulation (EC) No 1907/2006. ClientEarth, established in London unsuccessfully sought an internal review of the authorisation decision. In the present proceedings, ClientEarth sought annulment of the Commission's decision to reject its internal review request and annulment of the authorisation decision. The General Court of the European Union dismissed ClientEarth's action on the basis that all the arguments relied on by ClientEarth in support of its application were unfounded.
Minor – Custody-. A retention which took place other than in a contracting state was a retention which was justiciable, under the Hague Convention 1980, in a contracting state. Accordingly, the Court of Appeal, Civil Division, dismissed the mother's appeal against an order made by a judge in England, requiring the return of a child (C) to Australia, where C had been habitually resident, and in circumstances where the wrongful retention had occurred in Uganda, a non-contracting state, before the parties had travelled to the UK. The court held that the judge had been right to determine that the wrongful retention in Uganda continued to be a justiciable retention.
Family Proceedings – Orders in family proceedings. In an appeal from a decision dismissing care proceedings in respect of two children at an interim stage and recommending private proceedings as a means of resolving the issues, the Court of Appeal, Civil Division, allowed the local authority and the Children's Guardian's appeal. It held that the trial judge should have affirmed that the threshold was to be approached from the perspective of the children. Further, the judge should have appreciated that delay in bringing proceedings, however lamentable, could not, of itself, be determinative of the threshold under the Children Act 1989.
Extradition - Extradition order – Fugitive offender. The district judge had discharged the respondent pursuant to s 14 of the Extradition Act 2003 on the ground that extradition to Poland would be oppressive. The respondent was facing prosecution in Poland for 18 offences of fraud. In allowing the appellant Polish district court's appeal, the Administrative Court held that the judge erred in her conclusion that extraditing the respondent would be oppressive by reason of the passage of time. The judge had further erred in her approach to the question of whether respect for the respondent's family and private life and that of her partner had been outweighed by the public interest in extradition.
Company – Scheme of arrangement. The applicant companies' applications for the approval of a scheme of arrangement succeeded. The Companies Court held that, in the circumstances, there was no reason why the scheme should not proceed. Meetings of the scheme creditors would be convened as sought.
Disclosure and inspection of documents – Legal professional privilege. The applicant company's applications were allowed in part, in a dispute concerning the funding and ownership of Sheffield United Football Club. The Chancery Division held that, while the applicant (SUL) would be permitted to amend its claim to a limited extent, its application for further disclosure was refused. The defendant parties had made good their claim to legal professional privilege in other categories of documents. Further, none of SUL's disclosure applications were necessary for the just disposal of the proceedings and were reasonable and proportionate.
Negligence – Personal injury. The appellant's appeal against a judge's decision dismissing his medical negligence claim, concerning two of three knee operations that had been carried out at the respondent's hospital, was dismissed. In dismissing the ground of appeal based on informed consent, concerning the second operation, the Queen's Bench Division agreed with the judge below that the departure from the NICE guidelines had not been prima facie evidence of negligence. The court held that there was no public law duty to expressly inform a patient that an operation was not in accordance with the NICE guidelines, and that the judge had come to conclusions open to him on the evidence. The court further held that, on the facts, there was no ground for overturning the judge's conclusions concerning the third operation.
Social security – Child tax credit. In an action by the claimants, who were members of families affected by the two child limit under the Welfare Reform and Work Act 2016, the Court of Appeal, Civil Division, held that the limit of two children in respect of whom child tax credit and universal credit were payable, was not incompatible with arts 8, 12 and 14 of the European Convention on Human Rights. The aims and measures of the legislative provisions was legitimate and it could not be said that any difference in treatment was manifestly not a proportionate means of pursuing legitimate aims.
Extradition – Right not to be subjected to inhuman or degrading treatment or punishment. The conjoined appeals related to European arrest warrants for drink-driving offences, concerned with the potential infringement of art 3 of the European Convention on Human Rights. The Divisional Court held that the district judge: (i) in the case of the first respondent extraditee, had wrongly discharged him on the basis of the conclusion that the assurances given by the Romanian court as to a minimum 3m2 of personal space, so as to ensure compliance with the standard laid down by the European Court of Human Rights, had been inadequate; and (ii) in the case of the second appellant extraditee, had correctly ordered his extradition on the basis that the assurances offered by the Romanian court had been sufficient. Accordingly, the Divisional Court allowed the Romanian court's appeal against the first respondent's discharge but dismissed the second appellant's appeal against his extradition.