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Vote Ban Not Breach of Human Rights

A campaigning ex-patriot has failed to convince the Court of Appeal that a ban on British nationals voting in domestic elections once they have lived outside the jurisdiction for 15 years violates his fundamental right to freedom of movement between European Union (EU) member states.

James Preston, who has for many years lived and worked in Spain, had asked the court to declare that the ’15-year rule’ laid down by the Representation of the People Act 1985 was incompatible with the UK’s obligations under the Treaty on the Functioning of the European Union.

However, whilst recognising that the case had raised issues of ‘general importance’, the court dismissed Mr Preston’s appeal against an earlier decision that the rule did not amount to a disproportionate obstacle or barrier to British ex-patriots exercising their right to move freely and reside in other EU member states.

Lord Justice Mummery, sitting with Lord Justice Sullivan and Sir David Keene, said that the rule was designed to achieve a legitimate objective by removing the right to vote from those whose links with the UK have diminished over time and who are not, for the most part, as directly affected by the laws passed by parliament and by the decisions of the UK government as British citizens who reside in the UK.

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Can a Scientology Chapel Be Used for Marriages?

The High Court is being asked to decide whether a Church of Scientology chapel should be recognised as a ‘place of worship’ at which marriages can be lawfully solemnised under the terms of the Places of Worship Registration Act 1855.

Louisa Hodkin, who is engaged to a fellow scientologist, is challenging the refusal of the Registrar General of Births, Deaths and Marriages to allow her to celebrate her marriage at the church’s chapel in Queen Victoria Street, central London.

Church of Scientology marriages are recognised in a number of other common law jurisdictions, including Scotland, New Zealand, Canada, the United States of America and Australia, and Miss Hodkin’s lawyers argue that the registrar’s refusal is discriminatory and in breach of the Equality Act 2010.

However, lawyers representing the registrar insist that Miss Hodkin’s challenge is misconceived.  They argue that the ‘essential ingredients’ of religious worship required by the act are absent from scientology meetings.

Recognising the importance and novelty of the issues raised by the case, Mr Justice Ouseley reserved his decision until a later date.

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Staff Shortage Blamed for Birth Injuries

A four-year-old girl, whose lawyers blame her devastating birth injuries on staff shortages on the maternity ward at a Norfolk hospital, has won the right to multi-million-pound compensation from the NHS.

Hollie Smith was born at Norfolk and Norwich Hospital on March 2 2008.  Her mother’s pregnancy had been uneventful and, following failed attempts at delivery using forceps and a ventouse extractor, she was born by emergency caesarean section.  Although she was in apparently good condition, she began fitting 24 hours after delivery and it emerged that she had a fractured skull.

Hollie suffered brain damage and, through her mother, sued the Norfolk & Norwich University Hospitals NHS Trust which (whilst denying responsibility for her injuries) agreed that she should be compensated on the basis of 85% liability.

The amount of Hollie’s damages has yet to be assessed.  However her lawyers confirmed outside the High Court that the extent of the care she will need for the rest of her life means that she is likely to receive a multi-million-pound award.

Her legal team argued that, following the expectant mother’s arrival at the hospital on March 1 2008, the decision was taken to cease inducing her labour ‘to postpone delivery for the convenience of staff in the delivery suite’.

The mother was said to have endured seven hours in the second stage of labour before her baby was delivered the following morning.  It was argued that the skull fracture was probably caused by the difficulty in delivering her head during the caesarean birth.

Hollie’s barrister said: ‘The delay in the maternity unit that night left my client to undergo a needlessly protracted second stage of labour.  There was a shortage of midwives that night and pressure of work.’

Observing that the hospital was under an obligation to provide Hollie and her mother with a reasonable standard of care, the barrister added: ‘It is not at all clear that enough midwives had been rostered that night in the first place.’

Defence counsel emphasised that there had been no admission of liability by the NHS Trust and told the judge: ‘At no point on either side have the actions of individual midwives on duty that night been criticised. They all did their level best in difficult circumstances’.

The judge said that he approved the 85% liability settlement ‘with reluctance and distaste’ before wishing Hollie and her mother all the best for the future.

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Judge Warns of Surrogacy Pitfalls

A High Court judge has warned of the pitfalls of foreign surrogacies after the Indian mother of twin boys ‘disappeared’ after the birth but before giving her formal consent for them to be brought up by a British couple.

The male couple, who are civil partners, contacted a clinic in Hyderabad, India, to find a woman willing to carry and bear a child for them.  However, when their efforts to obtain the mother’s written consent for them to raise the children failed because they were unable to trace her, the couple had to apply to the High Court Family Division to have the babies formally recognised as their children.

Under a surrogacy arrangement with the Indian clinic, a donor egg was transferred into the surrogate mother, together with the gametes of one of the couple, who was therefore the twins’ biological father.  The couple returned to Britain with the children three weeks after their birth but, since then, all attempts to contact the surrogate mother to obtain her consent had failed.

Granting the couple parental rights over the boys, Mr Justice Baker said that the mother’s agreement was ‘not required’ because she could not be found.  He also retrospectively authorised the payment of about £17,000, plus expenses, made by the couple to an Indian surrogacy clinic, saying that he was satisfied that they had acted in good faith and in accordance with public policy.

However, sending out a warning to prospective parents planning to use a surrogate, he added: ‘In future cases, applicants and their advisors should learn the lessons of this case and take steps to ensure that clear lines of communication with the surrogate are established before the birth to facilitate the giving of consent.’

Observing that ‘the act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life,’ the judge waived the requirement to obtain the mother’s consent on grounds that the couple had taken ‘all reasonable steps’ to contact her but that there was ‘no realistic hope of finding her’.

He concluded: ‘I accept that it is not the applicants’ fault that they found themselves in this position.  I am satisfied that they reasonably believed that the clinic and its staff would behave responsibly.  It seems that they and the twins have been badly let down.’

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Sir Elton John Loses Libel Claim

Sir Elton John has failed in a libel action against Times Newspapers Limited over articles that he argued linked him to immoral tax avoidance.  Sir Elton sued over the articles published over four pages in The Times on June 21 2012.  The newspaper published an apology the following day after accepting that it had inaccurately stated that the singer was a former client of an accountant said to have been involved in tax avoidance schemes.

However, Mr Justice Tugendhat said that, although Sir Elton was understandably incensed by the inaccuracy, it was not relevant to the issue of whether the words complained of were capable of being defamatory.

Sir Elton, who was named three times in the articles, argued that the natural and ordinary meaning of the words published was that there were grounds for investigating his affairs and that it was reasonable to suspect him of having engaged in immoral tax avoidance.

Times Newspapers Limited did not dispute that an imputation that a person is engaged in tax avoidance is capable of being defamatory.  Although the newspaper did not expressly state that Sir Elton had been so engaged, it was argued by his lawyers that this was an imputation that could be inferred from the repeated and inaccurate references to the singer being a client of the particular accountant.

The judge accepted that readers of the articles might have inferred ‘something to the discredit’ of Sir Elton.  However, there was nothing to support such an inference other than the allegation that he was associated with the accountant.

‘The words complained of are not capable of bearing the meanings attributed to them by the claimant (Sir Elton) or any other meaning defamatory of him’, the judge concluded.

 

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Family at War in £4 Million Will Dispute

The Court of Appeal is being asked to decide whether English or Italian law should be applied to a family dispute over the £4 million estate of an Italian businessman who spent more than 50 years living and working in England before his death.

Piero Curati, came to England in the 1950s and made a fortune as a restaurateur and property developer.  He died, aged 81, in 2007.  His elderly sister has since been at loggerheads with his niece and nephew over the disposition of his estate which includes substantial assets in both England and Italy.

At the heart of the dispute are two wills Mr Curati executed in 1980 and 1994, the first in England and the second in Italy.  If the earlier will was superseded by the latter, his sister will inherit all his assets worldwide. However, if the 1980 will remained valid on Mr Curati’s death, his wife’s niece and nephew will inherit the assets he held in England which are valued at around £1.8 million after inheritance tax.

The niece and nephew succeeded in persuading a High Court judge in 2011 that English law prevailed and that the 1980 will remained valid because Mr Curati was domiciled in England at his death.  However, that decision is now being challenged by the sister in the Court of Appeal.

Her lawyers argue that, if Italian law holds sway, the dispositions contained in the 1980 will were revoked on the execution of the 1994 will.  They submit that Mr Curati never thought of himself as British, pointing out that he remained an Italian citizen throughout his life and continued to speak his native Italian dialect fluently.  It is argued that Mr Curati may have forgotten about his English will and that, had he remembered it, he would have wanted it revoked.

Ruling in favour of the niece and nephew in 2011, Mr Justice Sales said that, despite Mr Curati’s powerful Italian roots, he regarded England as his home and considered himself to be British.  ‘I have reached the conclusion that the 1994 will did not wholly revoke the 1980 will. The material part of the 1980 will, which leaves the English estate of the deceased to his niece and nephew, continues to be valid and must now be carried into effect’, the judge said.

Lords Justice Pill, Munby and Tomlinson have now reserved their judgment on the sister’s appeal against that decision and will give their decision at a later date.

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Bogus Lawyer Jailed for Four Years

In a case which underlines the wisdom of clients checking the qualifications of the professionals they instruct, a bogus lawyer who stole from clients, regularly appeared in court and secured divorces for husbands without their spouses’ knowledge has failed to win a cut in his prison sentence on appeal.

Khuram Shazad Ali, 33, from Bradford, was jailed for four years and eight months at Bradford Crown Court in May 2012 after admitting assorted counts of theft, fraud, and using a false instrument with intent.  Although he had never qualified as a solicitor, he duped unsuspecting clients into believing he was a legal expert.

Judge Peter Rook QC, sitting at the Court of Appeal, said: ‘For more than two years he acted as a fully qualified solicitor and offered advice across a wide spectrum of different disciplines – none of which he was qualified to do. The prosecution case was that he was not motivated by altruism: he charged clients for his advice and also stole from some of them.’

Ali’s lawyers challenged the length of his sentence, citing his previous good character, his young family and his fragile health. Ali suffers from narcolepsy and chronic eczema which has flared up alarmingly in custody.

Dismissing the appeal, however, Judge Rook, sitting with Lord Justice Aikens and Mr Just’ce Burton, refused to accept that the sentence was manifestly excessive. He said: ‘A severe sentence was to be expected…his legal career is at an end.’

You can check the credentials of all practicing UK solicitors at the recently revamped Law Society website.

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Tobacco Imported ‘For Profit’ Seized

The First-Tier Tribunal has adopted a wide interpretation of the phrase ‘for profit’ in rejecting a plea by three travellers that dutiable tobacco goods they imported into the UK should not have been seized because they were intended for family members rather than for commercial supply.

Although it was accepted that, in their own minds, the appellants were not acting for profit in the established sense of the word, the tribunal said that contributions made by the end recipients of the goods to the costs of their journey abroad technically amounted to a profit in money or money’s worth.

The appellants were stopped by customs officials at Belfast Airport on their return from Spain with large numbers of cigarettes and quantities of rolling tobacco, which would normally attract excise duty, in their luggage. The goods were seized under the powers contained in section 139(10) of the Customs & Excise Management Act 1979.

The appellants argued that the importation could not be viewed as commercial in the ordinary sense of the word because they had bought the goods for their own use and on behalf of family members who had contributed towards the purchase price of the tobacco and the costs of the trip.

However, dismissing the appeal, the tribunal ruled that the appellant’s view that they were not engaged in a commercial transaction did not accord with either the law or the policy of the United Kingdom Border Agency. The contributions made by family members to the appellants’ flight and other costs were ‘technically a profit’ in the hands of the appellants and their intention to distribute the goods amongst their family amounted to a ‘commercial use’ of the goods.