United Kingdom Supreme Court Research Articles

Finality and Certainty in the Integrated National System of Chapter III Courts: Judge Vasta v Stradford

Australian authority holds that there is a critical distinction between superior and inferior courts when it comes to the legal force of judicial orders affected by jurisdictional error. It is said that such orders, when made by a superior court, have legal force unless and until set aside but that, when made by an inferior court, they lack legal force from the outset. This distinction — recently consigned to pre-1846 history by the United Kingdom Supreme Court — does not align with the contemporary reality of the integrated system of courts established under Ch III of the Australian Constitution. The appeals in Commonwealth v Stradford, Judge Vasta v Stradford and Queensland v Stradford present an opportunity for the High Court of Australia to set a new approach that reflects the constitutional context for Ch III court operation. Specifically, the appeals may be upheld on the basis that any purported order made by a Ch III court acting as a repository of judicial power has legal force unless and until set aside.

Judicial Backpedaling on Trade Union Rights in the Gig Economy: Deliveroo in the United Kingdom Supreme Court

Judicial Backpedaling on Trade Union Rights in the Gig Economy: Deliveroo in the United Kingdom Supreme Court

Psychiatric Illness and Clinical Negligence: When Can "Secondary Victims" Successfully Claim for Damages? Recent Developments from the United Kingdom.

On January 11, 2024, the United Kingdom (U.K.) Supreme Court rendered its judgment in Paul v Royal Wolverhampton NHS Trust, restricting the circumstances in which "secondary victims" can successfully claim for damages in clinical negligence cases. This ruling has provided welcome clarity regarding the scope of negligently caused "pure" psychiatric illness claims, but the judgment may well prove controversial. In this article, I trace the facts and opinion from the majority and also discuss an important dissenting opinion. I then reflect on what the ruling means for psychiatric illness claims by secondary victims, and more broadly on the implications for clinical negligence law. I suggest that while much-needed clarity has been injected in this area of the law, it is difficult, reading the majority of the Supreme Court's emphasis on the restricted scope of a medical practitioner's duty, to envision a scenario in which secondary victim could ever succeed in a clinical negligence context.

Cracking a nut with a sledgehammer: the Lord Advocate’s Reference on a second Scottish independence referendum in constitutional context

The UK Supreme Court’s judgment in the Reference by the Lord Advocate of Devolution Issues under Paragraph 34 of Schedule 6 to the Scotland Act 1998 [2022] UKSC 31 not only confirms that holding a second referendum on Scottish independence is outside the Scottish Parliament’s legislative competence but raises a series of important constitutional issues. These include the constitutional status of referendums, the importance of sub-state democracy and the sovereignty of the United Kingdom (UK) Parliament. Whilst the Court gives referendums more significance than they were previously thought to have, its reasoning invoking democracy and on parliamentary sovereignty suggests it has adopted a vision of the UK constitution in which UK-level authority is privileged over sub-state authority, to the detriment of subsidiarity and devolved autonomy.

What level of respect does opposition to same-sex marriage deserve in a democratic society?

The opening of marriage to same-sex couples shifted the legal debate from whether that should be done to the extent to which individuals and organisations can lawfully refuse to engage with same-sex marriage or can continue to argue against such marriages. This raises the question of the level of respect that needs to be shown to anti-LGBT (lesbian, gay, bisexual, transgender) views in a democratic society, a question that ought to have been, but was not, the central issue in Lee v Ashers Baking Company Ltd. By focusing on the right not to express a view that the defendants in that case did not hold, the United Kingdom(UK) Supreme Court avoided examining the views that they did, in fact, hold. The defendants’ belief that LGBT people are sinful, manifested in their opposition to same-sex marriage, is in essence a belief in heterosexual superiority, which is a form of homophobia and therefore inconsistent with the values underlying the European Convention on Human Rights (ECHR), especially that of dignity. This article explores the level of respect such beliefs and their expression can expect to receive in the UK. It concludes that it should be no higher than ‘toleration’. It will identify as the central flaw in the Supreme Court’s approach that it afforded a higher level of respect than toleration, that it allowed the belief in heterosexual superiority to exempt the defendants from a legal obligation that would have to be met by those whose views on homosexuality were more in line with the values of the ECHR.

Principle and Policy in Malicious Prosecution

Judicial consideration by the Judicial Committee of the Privy Council, and the United Kingdom Supreme Court, of the tort of malicious prosecution – historically confined to criminal prosecution and limited civil proceedings – demonstrates considerable confusion in Common Law systems over the roles of principle and policy in judicial reasoning. As judgements extending malicious prosecution to maliciously motivated civil claims demonstrate, the principles and policies underpinning malicious prosecution and abuse of process, and the relationship between these torts – regarded by judges and jurists as anomalous – remain unclear. Other common law jurisdictions are yet to positively affirm the revised malicious prosecution tort’s applicability to civil proceedings, and the few plaintiffs to plead the expanded tort to date have been unsuccessful. While the harms arising from maliciously brought civil proceedings understandably excite sympathy, this article contends that expanding malicious prosecution to civil claims via common law reform is a problematic solution resting on unsound jurisprudential foundations, which faces potentially insurmountable evidentiary barriers and necessitates further litigation. We suggest that a better alternative is to encourage greater use of the court’s existing inherent jurisdiction to award compensatory costs and propose introduction of punitive statutory costs powers, available in extreme cases, to deter litigants from initiating civil claims prompted by malice.

Reading Supreme Courts from afar: Topic modelling judgements of the Supreme Courts of Sri Lanka and the United Kingdom

In legal scholarship, court judgments are pivotal in shaping jurisprudence. Situated within the field of digital humanities as it applies to legal texts, this article takes a closer look at the underlying themes in Supreme Court judgments by applying topic modelling to the judgments delivered by the Supreme Court of Sri Lanka (LKSC) and the United Kingdom Supreme Court (UKSC). Using two custom datasets curated by (web) scraping the respective LKSC and UKSC websites, this article employs Latent Dirichlet Allocation (LDA) with the Machine Learning for Language Toolkit (MALLET), a commonly used tool for topic modelling by digital humanists, to identify topics (themes) that represent the main areas of law in each jurisdiction primarily dealt with by the respective courts. 25 was selected as the number of topics after experimentation, and the topics identified in each jurisdiction were manually labelled. The results reveal the composition and evolution of judicial workloads, the shifting socio-political priorities in each jurisdiction, as well as the similarities and differences between the two courts. The findings have several implications for legal research and practice. These suggest that topic modelling can be used as a tool to organize and categorize judgments based on their themes, which can facilitate access and retrieval of relevant cases, and identify priority areas for judicial and legal training. They also challenge conventional legal taxonomies and classifications, and demonstrate the potential of computational methods for enhancing the understanding and analysis of law.

Sanctity of Oral Agreements: MWB Business Exchange Centres Ltd v Rock Advertising Ltd

The founding principle of contracts is the freedom of the parties. The parties are free to choose their terms and follow any modality of communication, oral or written. As they can freely make a contract, they can freely modify or unmake it. Written contracts have a clause, No Oral Modification Clause (NOM Clause), precluding oral modifications of the contract. Irrespective of it, business persons make oral agreements modifying the contract, and later, dispute its validity. If the parties are free to contract, why should the oral agreement not be binding? In a NOM Clause then, ineffective? The United Kingdom Supreme Court, in MWB Business Exchange Centres Ltd v Rock Advertising Ltd, explores this fundamental question on contract law.

Robinson v. Chief Constable of West Yorkshire Police: Taking Duty Back to Basics

Abstract In the United Kingdom, as in some other parts of the Commonwealth, the courts have long embarked on a search for a general formula which can be applied to determine whether a duty of care arises in any given negligence case. In 2018, the United Kingdom Supreme Court delivered its judgment in Robinson v. Chief Constable of West Yorkshire Police, in which a plurality strikingly rejected as misconceived attempts to identify such a general test. Duty cases, the Supreme Court held, are to be decided by reference to precedent where applicable, or (where no such precedent applies) by analogy with the existing authorities. This approach curtails the role of policy in the duty of care enquiry. In this article, the decision in Robinson is put in context and its significance explained. It is argued that the approach to the duty question adopted in Robinson should be welcomed. Not only is that approach the best of the alternatives available, but it is the only one that is consistent with the methodology of the common law and the rule of law.

The Interconnection of Human Rights and Diplomatic Immunity as Seen by the United Kingdom Supreme Court

The Interconnection of Human Rights and Diplomatic Immunity as Seen by the United Kingdom Supreme Court

Judicial Backpedalling on Trade Union Rights in the Gig Economy: Deliveroo in the United Kingdom Supreme Court

Judicial Backpedalling on Trade Union Rights in the Gig Economy: Deliveroo in the United Kingdom Supreme Court

Religious-based discrimination in the commercial context on the basis of sexual orientation: A comparative perspective

This paper considers how three jurisdictions, Canada, the United States and the United Kingdom, have sought to reconcile freedom of religion with equality rights, particularly in the commercial context, and particularly in relation to sexual orientation. The recent decisions of the United Kingdom Supreme Court and United States Supreme Court form the backdrop for that discussion. It is argued that the former made piecemeal, and misleading, use of American case law, and a fuller consideration of that jurisdiction’s position was warranted, and would have led to a different view of the recent American decision. It argues that the United Kingdom Supreme Court was in error in viewing a message on a cake ordered from a baker as an example of the baker's expression, leading it to an incorrect conclusion at odds with statutory mandates in the commercial sphere around refusals of service. Both high court decisions risk undermining progress on the equality front.

Deciding Matters of General Public Importance in South African Law: Guidance from the United Kingdom Supreme Court

Abstract The South African Constitutional Court is now conferred with the authority to decide matters of general public importance. Of course, the mere statement that the highest court should assume the authority to decide broad public matters does not assist litigants to fully understand which matters may be appealed to that court. Similarly, the Constitutional Court cannot accept appeals without consideration of its new appellate jurisdiction. The court should accept appeals with proper regard of its appellate jurisdiction; otherwise the extension of its jurisdiction could be rendered meaningless. The term “matters of general public importance” is rather novel in South African law; thus it is quite difficult to frame exactly what is implied by the term within the South African context. This article undertakes a comparative study to assess the term. A perusal of the jurisdiction of the United Kingdom Supreme Court may perhaps elucidate what is meant by the words “matters of general public importance”.

State of the Judiciary: In Contempt of Judges

The legal uncertainties and legal disputes raised by Brexit have indirectly led to a growing use of judicial review and a more assertive judiciary. The tenth anniversary of the United Kingdom Supreme Court (UKSC) – officially set up in October 2009 – was a time to look back on its work reflecting on some of its key rulings as well as on its constitutional position. A special series of lectures were delivered by a judge from each of the four nations - represented in the Supreme Court – in November and December 2019 to reflect on the court’s work over the last ten years (2009-2019). The first Welsh speaking judge of the UKSC David Lloyd-Jones entitled his lecture “Wales: Law in a small nation.” That very year Brexit gave proposal to “ensure that it [judicial review] is not abused to conduct politics by another means or create needless delays” – as written in the 2019 Conservative manifesto. Such a proposal, they fear, would seriously undermine judges’ check on the lawfulness of the acts and decisions of the executive as well as judges’ authority.

A Study on the Treatment of Unjust Insurance Claims in the English Law under Marine Insurance Contracts: Focused on the Case of the DC Merwestone

Purpose This paper analyzes the reasoning of the judgment of the United Kingdom Supreme Court in the Versloot Dredging BV and another v. HDI Gerling Industrie Versicherung AG and others (The DC Merwestone) (2016) in finding that there is no remedy or sanction for the use of fraudulent devices (so-called “collateral lies”) in insurance claims and to consider potential implications for insurers. Design/Methodology/Approach The methodology is a literature analysis starting from case facts and the reasoning with short comments on legal implications. Findings Despite no sanction provided by law for the use of fraudulent devices, the room still opens for the insurers to stipulate the consequence of using the fraudulent devices by the express term in the insurance contract. Research Implications The case of the DC Merwestone may have wide implications for insurers in the future, where there is uncertainty over whether a fraudulent device has had any material effect on their ability to claim. The result of this study raises awareness of the marine insurance industry (especially insurers) as to the approach of the English law towards the use of fraudulent devices. It will need to wait and see what further decisions are made in this area in order to see how these will affect the insurance industry as a whole.

Judges and Academics, and the Endless Road to Unattainable Perfection

This article is a lightly revised version of the Lionel Cohen Lecture 2021 given by the author in October 2021. It looks at the relationship between legal academics and judges. The title of the article derives from one of the judgments of the great Lord Goff. The article has three main parts. First, it explores the increased influence of legal academics on judges in England and Wales towards the end of the twentieth century. Secondly, it examines how academic work can assist judges and makes a plea for recognition of the importance of ‘practical legal scholarship’. Finally, drawing on the author's own recent experience, the article examines how being a judge of the United Kingdom Supreme Court differs from being an academic.

Values diversity in the United Kingdom Supreme Court: abandoning the ‘don't‐ask‐don't‐tell’ policy

AbstractThe case for greater judicial diversity has generally been constructed in terms of the need to appoint more women and those from minority ethnic groups. This article shifts the focus from demographic to cognitive diversity. Drawing on new insights and methodologies from the behavioural sciences on judges’ personal values and analysing the relationship between demographic diversity and values diversity, it sets out the case for the potential benefits of values diversity on the United Kingdom Supreme Court. The article argues that values are already implicitly taken into account in judicial appointments and challenges the claim that seeking values diversity among the Justices would inevitably lead to a United States‐style partisan political court. It proposes greater openness around values in the judicial appointments process to make explicit what is currently tacit and to lift the judicial values blackout, which has given rise to a ‘don't‐ask‐don't‐tell’ approach to the role of Justices’ values in decision making.

Can there be an unintentional estoppel by convention: the UK Supreme Court (incorrectly) says yes

Abstract In a previous article, I discussed estoppel by convention. To summarize, that doctrine permits one person (the “estopper”—usually the plaintiff in a cause of action) from stopping another person (the “estoppee”—often the defendant) from asserting the truth of a fact or the correctness of a principle of law. The point I tried to make was that the estoppel is not nullified simply because the parties knew when entering into the contract or transaction that the fact or principle agreed on was not true; it is because they agreed to proceed on the basis of the convention, not the convention’s veracity, that the estoppel applies. In Tinkler, the United Kingdom Supreme Court held that the estoppel applied. In my respectful view, for the reasons discussed in this article, it erred in doing so.

Apparent bias. The arbitrator’s duty of disclosure when accepting multiple appointments in related arbitrations with only one common party. Duty of disclosure and confidentiality The United Kingdom Supreme Court. Halliburton Company v. Chubb Bermuda Insurance Ltd (Formerly Known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, J. 27.11.2020. Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones and Lady Arden

View Apparent bias. The arbitrator’s duty of disclosure when accepting multiple appointments in related arbitrations with only one common party. Duty of disclosure and confidentiality The United Kingdom Supreme Court. Halliburton Company v. Chubb Bermuda Insurance Ltd (Formerly Known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, J. 27.11.2020. Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones and Lady Arden by Ana Paula Montans,Cherie Blair - Revista Brasileira de Arbitragem

Torture by Non-state Actors

Abstract In legal discourse, ‘torture’ is a term used to describe the deliberate infliction of severe physical or mental pain and suffering upon a person. One controversial aspect of the legal definition of torture has been the status of the perpetrator, whose acts are relevant for the purposes of the torture definition under international law. This ambiguity came to the forefront in the judgment of the United Kingdom (UK) Supreme Court in R v. Reeves Taylor, where the Court ruled that the category of persons ‘acting in an official capacity’ (under section 134 of the Criminal Justice Act 1988, which implements the United Nations Convention against Torture) included members of armed groups, if those groups exercise governmental authority over a civilian population in a territory under their control. This article relies on R v. Reeves Taylor as a gateway for a wider analysis of four fundamental inquiries into the definition and operation of the crime of torture: (i) the rationales underlying the international criminal repression of torture; (ii) the rules (including the UN Convention as well as other rules) which give expression to different rationales; (iii) the spectrum of actors whose acts can constitute torture under different rationales and rules; and (iv) the wider implications of expanding the spectrum of possible perpetrators.