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I stand here. I can do nothing else. God help me!




In R(Brooks) v Independent Adjudicator, Secretary of State for Justice Intervening [2016] EWCA Civ 1033, handed down 28.10.16, McCombe LJ, with whom Jackson LJ agreed, found in favour of submissions by Simon P G Murray, counsel for the successful appellant, the Secretary of State. He allowed the appeal on the basis inter alia that, as with Martin Luther before the Diet of Worms in 1521, the Prison Governor could only say ‘Here I stand, I can do no other. God help me! ’ in the face of allegations that he had acted unlawfully in HRA terms in detaining B because the Governor was obliged to detain him by reason of provisions of primary legislation (see paragraphs 14, 18 and 23 of the judgment).  This point concerned the hitherto rarely used provisions of section 6(2)(a) of the Human Rights Act 1998 which provide that an act cannot be unlawful in HRA terms if the public authority could “could not have acted differently”. McComb thus accepted “the Luther Point”.

The Court of Appeal also found in favour of the SSJ’s submissions there was here no violation of Article 5(1) of the ECHR, in any event and, obiter, that it would notwithstanding the first two points have probably found that the Governor was a “second actor” and the case was one of the category where a decision quashed in judicial review proceedings was not void ab initio

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CN v Poole Borough Council: Application for Permission to Appeal

13th February 2018

The claimants have applied to the Supreme Court for permission to appeal against the decision of the Court of Appeal.  A detailed note on the Court of Appeal’s decision is available here.  The defendant’s solicitors have been told by the Supreme Court Registry that the...

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Enforcement of Adjudication Awards in Relation to Oral Construction Contracts. How Hard Can It Be?

8th February 2018

Maurice Rifat comments on his recent success in the TCC in the case of Dacy Building Services Ltd v IDM Properties LLP [2018] EWHC 178 (TCC).

This was the third Act in the saga that is Dacy Building Services v IDM Properties LLP.

On 6th February 2018 the Judgment of Fraser J in the TCC was...

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