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Merlin has no magic wand to gag theme park safety campaigner

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A judge has backed the right of a critic of Merlin Entertainments’ theme park safety record to continue his “robust” campaign against the owners of Alton Towers and Chessington World of Adventures. The High Court judgment has asserted the obligation companies have to endure criticism even if it is upsetting or senior employees feel harassed by it.

Merlin Entertainments had sought a court injunction against a mass emailing and internet campaign on theme park safety by Dr Peter Cave and alleged he was harassing their staff. But Mrs Justice Laing said:

“An almost inevitable consequence of occupying a position of responsibility in a plc, the business of which affects many members of the public, is that, at times, a person will be exposed to robust, and occasionally upsetting, criticism. Its officers should, of course, be protected from real harassment. But they are not immune from criticism, even if that is misguided and intemperate.” (Para 56)

The judge took no view on the validity of Dr Cave’s criticisms but said that if they were unjust, the proper recourse for Merlin was the libel courts, not an injunction. “If such a claim succeeds, the level of damages will reflect the distress caused by the defamation.”

Dr Cave’s interest in theme park safety was prompted by the accident at Chessington in which Jessica Blake, 4, was seriously injured in 2012. Dr Cave and his company, Peer Egerton Limited (PEL) were hired to do a condition survey on the park after the accident.

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Libel juries: How Tim Yeo and Warby J buried the Seven Bishops

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It is ironic – and perhaps a little shocking – that an early high-profile beneficiary of Britain’s abolition of the right for juries to try libel cases should be a Member of Parliament – one who will doubtless have supported the Defamation Act 2013 that removed the long-standing right. So, step forward Tim Yeo, who will not (thanks to the new law and a sympathetic judge) have 12 jurors facing him in court who need to be persuaded that he did not show willingness “to abuse his position in Parliament to further his own financial and business interests in preference to the public interest“.*

Yeo succeeded in challenging Times Newspapers’ attempt to have a jury empanelled – but might be mortified that Mr Justice Warby in Tim Yeo MP v Times Newspapers decided the case could do without a jury because Yeo is just not an important enough figure to warrant one. Some public figures (government ministers or judges, perhaps, rather than footballers or celebs) might have to face a libel trial jury, but the moderately high and not-so-mighty-now Mr Yeo doesn’t quite cut the mustard.

More significantly, Warby’s decision about a jury has ditched centuries of legal and constitutional  principle, denying any public interest right for defamation cases involving senior public servants to be tried by those representatives of the public who constitute juries. But some background is needed.

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Bank error in your favour? Santander may be coming for you

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Santander Bank in Britain has been given the right to identify and pursue by telephone and email the beneficiaries of erroneous payments – even though the thousands of pounds-worth of errors were made as a result of Santander’s own failings.

The High Court has rejected privacy concerns and ruled that Santander can force other banks to reveal the details of mistaken beneficiaries by issuing a “Norwich Pharmacal” order – usually used to reveal fraudsters and other wrongdoers – even though wrongdoing may not have occurred in these cases. 

The unwitting beneficiaries can now have their names, addresses, emails and telephone numbers revealed to Santander which can use them to press customers to repay the money or ultimately take legal action against them. Mr Justice Birss in the High Court Chancery Division has concluded that privacy rights are trumped by property rights. The orders are supposed to be issued only in exceptional cases but Birss has in effect created a rubber-stamping mechanism for issuing the orders whenever banks make errors and cannot trace the beneficiaries.

The case undermines the right to privacy by suggesting that in future there need not be real evidence of wrongdoing (eg fraud or internet piracy) or of a wrongdoer before such orders are issued. They can be issued on the assumption of wrongdoing without an arguable case being put in open court that wrongdoing has occurred.

Hundreds of such transfer errors occur each month and Santander has recently set up a Refunds and Recoveries team to deal with them. Typical errors include duplicate payments, the selection of an incorrect mandate and the insertion of an incorrect account number. In some cases the bank is stymied when trying to get money back from customers of other banks because the beneficiaries – whose names and details are unknown to Santander – are protected by the other banks’ confidentiality.

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Ministry of Justice’s 2½-year legal wrangle over ‘bullying’ Court of Appeal Master

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The UK Ministry of Justice has been caught up in a two and a half year legal wrangle with senior Court of Appeal lawyer accused of bullying conduct.

Robert Hendy, a Master in the Civil Appeals office, has been suspended on full pay in excess of £65,000 since December 2011 when two female lawyers made complaints about him. His conduct was said to be bullying and undermining of colleagues. Hendy denies all the allegations against him.

His dispute about disciplinary procedures reached the High Court this week where Mr Justice Mann said: “There were also allegations of casual racism, alcohol misuse, absenteeism and neglect of his official duties, both managerial and substantial” – though these have since been dropped.

The High Court had heard that after compiling a 70-page report on the matter, an investigations officer appointed under the MoJ disciplinary procedure, Stephen McAllister, concluded there was enough evidence to prove the bullying and harassment allegations against Hendy and that they should be considered serious and that specific allegations of bullying particular people should be regarded as gross misconduct. He made comments about his power to sack people and “He [McAllister] found that Mr Hendy made a number of sexual innuendo remarks over time, meant in jest but having an adverse effect on the recipient.”

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Court wrangle for Drax over renewable energy subsidy

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Note: since this piece was posted DECC has won its appeal against Drax (7 August 2014) and the power generator has abandoned further legal action (with its share price duly dropping). See “The Court of Appeal judgment” below.

Shares in UK energy company Drax leapt more than 40p after it won a High Court victory against the Department of Energy  and Climate Change (DECC) over renewable energy subsidies (14 July 2014). It is the second court win against DECC mishandling of the green energy business sector announced within days. (See previous post)

DECC had failed to accept one of Drax’s biomass conversion projects as eligible for a subsidy scheme involving contracts for difference (CfDs), intended to provide certainty on prices for renewable generation.

Mrs Justice Andrews ruled that: “When properly understood, Drax’s application did satisfy the Key Criterion [for the CfD subsidy] and no decision maker, properly informed, who accepted that Drax was telling the truth …  could have concluded that it had failed to do so or that the information given by Drax was insufficient to satisfy him that it passed the test.” She added: “The matter will have to be remitted to DECC for reconsideration in the light of this judgment.”

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Contractual rights are property rights: Government blunder on feed-in tariffs

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The UK Government faces a bill for up to £200m in compensation to green energy installers that suffered losses as a result of former energy secretary Chris Huhne’s 2011 announcement on proposed cuts in environmental subsidies. The announcement led to many organisations and individuals dropping plans to install solar power with feed-in tariff (FIT) equipment that feeds electricity generated by small-scale solar panel systems into the grid, producing a payment.

A legal ruling in the High Court (Breyer Group plc & Others v DECC issued 9 July 2014 ) is the second time in a week that the government has been show to have fallen foul of the principle that the law should not be retrospectively changed if it damages people’s interests. (See the Poundland case: UK Human Rights Blog)

Are contracts property?
The High Court established in its ruling on preliminary legal issues that pre-existing contracts to supply the solar micro-generation equipment constitute “property” for the purposes of protection of property rights under the European Convention on Human Rights. Furthermore, Huhne’s announcement, which proposed bringing forward a reduction of the subsidised payment, constituted an “interference” with those property rights. This should potentially be compensated, said Mr Justice Coulson.

The 31 October 2011 announcement that cuts in the feed-in payment might be brought forward amounted to a retrospective change in legislation without passing new legislation through Parliament. “The proposal would have taken away existing entitlements without statutory authority.” The announcement damaged businesses and hit consumers who had planned to install the equipment on the basis of the higher payments. As such it breached ECHR Article 1 Protocol 1 (A1P1) on protection of property rights regarding contracts concluded on or before the day of the announcement.

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Mass surveillance in the UK: Charles Farr’s flawed arguments

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Hang on! Just because UK government security official Charles Farr says GCHQ et al have done nothing unlawful in their mass digital surveillance, that’s no reason to believe him. You wouldn’t believe a burglar rifling through your drawers; why believe the spokesmen for the people rifling through your personal emails and internet searches?

Farr has put in a defence in the case brought by Privacy International against the Government, not a statement of the law, yet it is being treating as gospel truth. In particular people are demanding the law be changed – conceding that the surveillance is currently lawful (among them pro-security services types such as Lady Neville-Jones).

In fact a judge has not ruled in the case yet, and there are fundamental flaws in Farr’s argument that UK-originated digital material on overseas servers is fair game even though it originated in or returned to the “British Islands” (in the quaint formulation of the 2000 Regulation of Investigatory Powers Act).

For starters it is strongly arguable in law that nothing in the Act can sanction unreasonable mass surveillance – since that was not the purpose of the Act. RIPA was intended to enact a European Directive banning such downloading and storing of personal material and a judge will interpret it in that light. He or she is likely to take a dim view of any alleged “loopholes” in it. (This argument is made briefly below and at length here.)

But Farr’s case is further flawed – not least by a disingenuous attempt to claim parliamentary sanction for mass surveillance on the basis of an arcane exchange in the House of Lords one July evening in the year 2000.

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