Court Updates: Q3 Round Up
12/05/2021
Welcome to our quarterly roundup of news and articles for July to September 2021.
The autumnal chill has started to creep into the air and every town is now lit up with festive lights. Adding to the pre-Christmas cheer is the news that several positive agreements and initiatives were signed/agreed to at COP26, including:
- A declaration to work towards all sales of new cars and vans being zero emission globally by 2040, and by no later than 2035 in leading markets.
- The news that 190 countries, banks, and organisations have agreed to phase out coal power and end support for new coal power plants.
- The world’s wealthiest nations pledged $100bn a year between 2020 and 2050 to poorer countries so they can deal with the damage wrought by climate change.
At Zurich, we have been working tirelessly to play our part in improving sustainability. Our efforts include:
- We have established a group wide climate approach to align our business with a 1.5°C future.
- Exceeding $5bn of impact investment portfolio. We are now focusing on reaching our impact targets (five million tons of CO2 avoided and benefiting five million people).
- Expanding the Zurich Flood Resilience Alliance to provide direct support to an additional 200 communities with the ambition of reaching four million people by 2024.
You can read our sustainability report and discover our climate change strategy here.
As always, we are focused on helping you stay abreast of new developments. Below you will find news pieces plus details and links to some of our articles published between July and September. These include discussions on the new Health and Social Care Levy, how local authorities and NGOs are using innovation to tackle the climate change crisis, several RTA appeals, and many others.
I would like to take this opportunity to thank you for your ongoing support. If there is anything you would like to see published in our News and Insights section, please do not hesitate to let us know.
Recent Developments
The UK faces challenges in energy supply
Many of us old enough to remember the 1970s spent September wondering if the country had entered a Twilight Zone-like parallel universe and returned to the days of fuel and energy supply (or rather, lack thereof) dominating the headlines and the whispers of a return to four-day weeks and carless days.
According to The Spectator, a thousand cubic meters of gas (the standard trading unit) cost just over $500 at the start of September. By the end of the month, the cost had doubled. At the time of writing (11 October 2021), it had crept up to $1,123.
For local authorities and charities, gas shortages will likely put a strain on resources over the coming months as the winter chill takes hold, especially given that 87% of households rely on gas for heating. Most experts believe we could be facing factory closures to balance out energy use and keep household boilers bubbling.
However, despite headlines dominated by pre-Christmas panic buying and queues at petrol stations, there has been a great deal of positive news this quarter.
Birmingham is to transform into a large-scale low-traffic neighbourhood
The UK’s second-largest city is leading the way in reducing emissions by developing a new plan that will see roads closed to motor traffic, zero-emission buses whizzing across the city, and cycleways upgraded. Birmingham will also pedestrianise further parts of the city centre and reduce the availability of car parking through the removal of spaces, steeply increased pricing, and clamping down on footway parking.
Birmingham city council’s transport lead, Waseem Zaffar told The Guardian:
“I’m the proudest Brummie there is, and this is where my kids will grow up. For the future [the council] has to take some radical, bold and brave steps – the transport plan is one of them.”
Electric brain implant to treat depression
Mental health is one of the biggest challenges facing local authorities and charities. According to the Office of National Statistics, one in five people (21%) experienced depression in the first quarter of 2021, more than double that observed before the Coronavirus pandemic.
In a breakthrough study at the University of California, San Francisco a woman with severe depression has been successfully treated with an experimental brain implant. The device works by detecting patterns of brain activity linked to depression and automatically interrupting them using tiny pulses of electrical stimulation delivered deep inside the brain.
The 36-year-old patient, Sarah, said the therapy had returned her to “a life worth living”, allowing her to laugh spontaneously for the first time in five years. The development proves that brain activity connected with mental ill-health can be detected and returned to a healthy state, even in cases where the patient has been unwell for many years.
Harmful emissions and human rights duties
R (Matthew Richards) v Environment Agency [2021] EWHC 2501
In a weighty decision concerning the duties of the Environment Agency in relation to a landfill site, The Hon. Mr Justice Fordham heard a claim by a five-year-old boy living near a former quarry and landfill site. Residents could smell the odour emissions of hydrogen sulphide gas from the site and the Claimant was subject to a particular risk. He was born prematurely and suffers from bronchopulmonary dysplasia (BPD). The evidence from a consultant respiratory paediatrician was that continued exposure to hydrogen sulphide was likely to lead to him developing chronic obstructive pulmonary disease (COPD) which would severely shorten his life. He argued that by failing to regulate the site, the Environment Agency had breached its duty to him under art.2 of the ECHR (right to life) and art.8 (right to private and family life).
The decision breaks several new grounds, including the fact it is the first UK case to clarify important principles of law applicable in environmental/industrial pollution cases involving both Article 2 and Article 8 rights, including that a reduction in life expectancy qualifies as a “real and immediate risk to life” for the purposes of the Article 2 operational duty. Furthermore, although The Hon. Mr Justice Fordham found that the Environment Agency had not complied with the operational duties it owed to the Claimant under section 6 of the Human Rights Act 1998 in respect of Articles 2 and 8, using his discretion, he declined to declare a breach. Instead, he made the following declaration:
“In order for the Environment Agency to comply with its legal obligations, the Agency must implement the advice of Public Health England as expressed in the Fourth PHE Risk Assessment (published 5 August 2021), by designing and applying and continuing to design and apply such measures as, in the Agency’s regulatory judgment, will and do effectively achieve the following outcomes in relation to emissions of hydrogen sulphide from Walleys Quarry Landfill Site: (1) the reduction of off-site odours so as to meet, as early as possible and thereafter, the World Health Organisation half-hour average (5PPB); and (2) the reduction of daily concentrations in the local area to a level, from January 2022 and thereafter, below the US EPA Reference Value (1PPB) as the acceptable health-based guidance value for long-term exposure.”
This lengthy judgment is a must-read for anyone who needs to understand the intersection between environmental issues and Article 2 and Article 8 rights and in the scope of the Article 2 right more broadly.
Published articles
Below are details and links to articles we published in Quarter Three.
In Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 1543 (Ch) the Court of Appeal ruled that litigation privilege once acquired could not be taken away, even if it was obtained by stealth.
The case of YXA v Wolverhampton CC [2021] EWHC 1444 (QB) is one of several ‘failure to remove’ cases that have recently come before the Court. Master Dagnell was asked to consider whether a local authority assumed responsibility for a child when placing them in accommodation using the powers granted by section 20 of the Children Act 1989. This case is the first time the issue of whether a local authority owes a duty of care to a child placed in accommodation under section 20 has been brought before the Courts. In striking out the claim, Master Dagnell concluded, following a thorough review of the authorities, that because parental responsibility remained with the child’s parents at all times, no duty of care beyond ensuring the child was returned home and that home was safe existed.
In September, we examined the Supreme Court’s limits on the scope of vicarious liability. Discussing the rulings in Catholic Child Welfare Society and others v Various Claimants and The Institute of the Brothers of the Christian Schools [2012] UKSC 56, Wm Morrison Supermarkets plc v Various Claimants [2020] UKSC 12, and Barclays Bank plc v Various Claimants [2020] UKSC 13 we looked at how the doctrine of vicarious liability has been clarified, allowing businesses to adjust their risk assessments and relevant policies and procedures accordingly.
In Secretary of State for Justice v Plaistow [2021] 7 WLUK 37 the Employment Appeal Tribunal (EAT) upheld the Employment Tribunal’s (ET) decision to calculate compensation for discrimination and harassment on the basis that the employee had sustained career-long losses.
His Honour Judge Pearce gave Counsel a firm rebuke regarding page discrepancies in the pagination of the Claimant's electronic trial bundles and emphasised the need for electronic page number references in bundles to match the number printed on the page.
He told Counsel in Hodgson v Creation Consumer Finance Ltd [2021] EWHC 2167:
“Whilst the Courts may have been willing to tolerate problems early in the COVID-19 pandemic, when solicitors were struggling with new challenges, including a lack of the traditional support from those who might assist with preparing bundles, as well as the sudden need to get to grips with the challenges of preparing electronic bundles in all cases, there has been plenty of opportunity by now to get to grips with those challenges. I repeat that most court users have done. Those who have not must realise that they are likely to be sanctioned for the problems caused by such failures.”
Oxfordshire County Council won an appeal against a cyclist who sustained injuries after he collided with a signpost on a cycle path owned by the local authority in Price v Oxfordshire County Council [2021] 7 WLUK 167. Judge Clarke stated that not every foreseeable risk gave rise to a duty to take remedial action.
We also looked at the exciting ways local authorities and NGOs are stepping up to fight climate change in the run-up to COP26.
In Harrison v Intuitive Business Consultants (t/a Bear Grylls Survival Race) [2021] EWHC 2396 (QB), the organisers of adventurer, writer, and television presenter, Bear Grylls’s Survival Race were found not to be liable for an accident in which a participant seriously injured her leg.
Providing a highly valuable summary of the case law concerning liability in cases where a car collides with a pedestrian, especially where the pedestrian in question is a child, Mr Justice Cavanagh in Chan v Peters [2021] EWHC 2004 (QB) concluded that the Defendant had “acted in the manner of a reasonably competent driver in the way that she reacted once she perceived that the Claimant was jogging into the road” and was therefore not liable.
Finally, following on from the Government’s announcement that a new Health and Social Care Levy to pay for the spiralling costs in these areas, we examined whether the levy would provide the funds needed to cope with the ever-increasing demands on health and social care over the next few decades.
