Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.     

Taking Abortion Rights Seriously: Whole Woman's Health v Hellerstedt

In Whole Woman's Health v Hellerstedt the Supreme Court of the United States passed down its most important decision on abortion for just under a decade. By a majority of 5‐3, the Court ruled that two provisions in a Texas law regulating abortion on grounds of women's health were constitutionally invalid, placing a ‘substantial obstacle’ in the way of women seeking to exercise their right to abortion. This comment delineates the key ways in which the Court's application of the standard of constitutional review under Planned Parenthood v Casey (1992) to the Texas provisions marks a landmark development for the protection of the constitutional right to abortion established in Roe v Wade, not the least by making clear that state abortion regulations which cite ‘women's health’ justifications should not pass constitutional review where those justifications lack a credible factual basis.     

Unjust Enrichment in the ‘Fairchild Enclave’ International Energy Group Ltd v Zurich Insurance plc

In International Energy Group v Zurich Insurance, the Supreme Court considered the implications of the special rule in Fairchild v Glenhaven Funeral Services Ltd for insurers’ for employers’ liability. The question for the Court was whether, in the light of its earlier decision in Durham v BAI (Run off) Ltd, insurers could be held liable for employees’ mesothelioma claims, even if the employer was not insured throughout the period of employment. The seven Justices unanimously held that insurers’ liability was proportionate to the period of insurance. In reaching that result, the majority recognised that the insurers were entitled to ‘equitable recoupment’ from insured‐employers in respect of periods during which they were uninsured. This note critiques the recoupment right with an unjust enrichment lens.     

The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication

In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision-making and of scientific/policy uncertainty which lie in the background of climate change legislation.     

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.     

The Possibility of Lawful Act Economic Duress: Pakistan International Airlines Corp v Times Travel (UK) Ltd

The voidability of a contract procured by ‘economic duress’ is now well-established, but the precise boundaries of the doctrine remain contested. In Pakistan International Airlines Corp v Times Travel (UK) Ltd [2021] UKSC 40, the Supreme Court confronted the longstanding controversy as to whether a threat to perform a lawful act can provide grounds for a threatened party to avoid a contract for economic duress. This note argues that the Court's decision to affirm the existence of ‘lawful act duress’ is welcome. It is further argued that the specific kind of lawful act duress identified by the majority and relevant to determining the appeal, described as ‘deliberate maneuvering via illegitimate means’, provides helpful (and defensible) clarification of the content of this doctrine, and that the Court was correct to hold that the contract in Times Travel was not voidable on this basis.     

Ex Turpi Causa: Reformation not Revolution

Seldom has an area of law been so afflicted with uncertainties and contradictions as the illegality defence and rarely have judicial opinions been so sharply divided as in the Supreme Court decision in Patel v Mirza where nine Justices examined the issue of the correct approach to the illegality defence. Six of them endorsed the ‘range of factors’ approach, whereas three condemned it. This paper defends the majority's approach against the minority's criticisms but argues that refinements should be made to it in order to address the uncertainty that may arise from its application.     

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights

In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.     

On the Relations between Agent and Principal: Angove's Pty Ltd v Bailey

In Angove's Pty Ltd v Bailey the Supreme Court faced ‘two important and controversial questions of commercial law’: whether an agent's authority could ever be ‘irrevocable’, and whether the receipt of money by an imminent insolvent could ever give rise to a constructive trust of that sum. It answered both in the affirmative, albeit subject to heavy qualifications. This note supports these conclusions in principle, however it will argue that the court's reasoning, especially in answering the second question, leaves much to be desired. In particular, it ignored the central role of fiduciary law in regulating the conduct of agents.     

CERCLA Arranger Liability: Town of Islip v. Datre: What Intent is Required?

In Town of Islip v. Datre, the court dismissed a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claim based on failure to allege that the defendant knew that the waste it disposed of was hazardous. The court based its decision on language in the Supreme Court's decision in Burlington Northern that indicated that to be liable under CERCLA as one who arranged for disposal, there is a knowledge or intent element. This article questions the Datre decision and argues that the “knowledge” required by the Burlington Northern Court is knowledge that the transaction is a disposal, not knowledge that the waste disposed of is hazardous.     

Koushal v Naz: Judges Vote to Recriminalise Homosexuality

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.     

A Riddle Whose Answer is ‘Tort’: A Reassessment of International News Service v Associated Press

The decision of the US Supreme Court in International News Service v Associated Press (1918) has variously been interpreted as recognising a ‘quasi‐property’ right in ‘valuable intangibles’, such as hot news; as turning on unjust enrichment; or as creating a novel tort of unfair competition by misappropriation. It is suggested that the case is more authentically understood as an incidental result of a process by which the Supreme Court extended the boundaries of tort liability, and the corresponding scope of property protection, in a series of decisions against organised labour. The argument is pursued with reference to the prima facie tort theory of Oliver Wendell Holmes, the American ‘labour injunction’, and the labour law record of the author of the majority opinion in International News, Justice Mahlon Pitney.     

Mavericks or misconstruction? A reply to Campbell and Allan

In a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.     

Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.     

Dryden v Johnson Matthey: The Boundaries of Actionable Damage

In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.     

Belize It or Not: Implied Contract Terms in Marks and Spencer v BNP Paribas

In Marks and Spencer v BNP Paribas, the Supreme Court restated the law on the implication of terms in fact, rejecting the previously authoritative approach taken by Lord Hoffmann in Attorney General of Belize v Belize Telecom Ltd. This article examines two major departures from Belize in Lord Neuberger's leading judgment: the treatment of implication as a process separate from interpretation, and a return to the ‘traditional tests’ for the implication of terms. It argues that these are retrogressive steps in our understanding of contract terms, which risk fostering an incoherent and unprincipled approach to the law.     

“Our People in General Have a High Degree of Freedom”

This article considers the United States Supreme Court’s ruling in National Federation of Independent Business et al v Sebelius, which questioned the constitutionality of President Obama’s signature healthcare reforms of 2009, which have become colloquially known as ‘Obamacare’. Although the Supreme Court upheld the Act as constitutional, this article contends that the Supreme Court’s reasoning can be read as another battle in the long-standing debate in American politics over the correct size and limits of the Federal Government. In upholding the healthcare reforms as a tax, rather than under the Constitution’s Commerce Clause, the Supreme Court has endorsed a view of limited government in line with the principles of classical liberalism. This has the potential to greatly restrict the scope of the Federal Government to pursue large scale expansive social welfare programmes in the future.     

The ‘Heathrow’ Case: Polycentricity,Legislation, and the Standard of Review

The recent Court of Appeal decision in the ‘Heathrow’ case, Plan B Earth v Secretary of State for Transport is an illustration of the challenges of reviewing polycentric and expert decision-making. The issues raised in the case concerning the Planning Act 2008 are an illustration of a court's expository role in such contexts. The Court tackled directly a series of interpretive questions concerning the Planning Act 2008's obligations regarding the consideration of climate change. The Habitats and Strategic Environmental Assessment (SEA) Directive issues raised in the appeal, in contrast, were presented with the question of the intensity of review foregrounded in legal argument. The Court therefore sought to articulate the ‘standard of review’ and to apply it to the government's decisions. This way of framing the issue unfortunately sidelined the courts’ expository role in relation to intepreting the Habitats and SEA Directives, leaving key provisions under-analysed.     

Attribution and the Illegality Defence

In Jetivia SA v Bilta (UK) Ltd (in liquidation) all seven judges of the Supreme Court affirmed the decision of the Court of Appeal by holding that the illegality defence could not be raised as a defence against the claim made by the company because the wrongdoing of the directors and shareholder cannot be attributed to the company. Although all the judges unanimously agreed on the outcome of the case, their reasoning concerning the approach to attribution and the different circumstances under which attribution should or should not take place differed. Further, the Supreme Court was divided on the issue of the correct approach to the illegality defence.