text stringlengths 5 5.67k |
|---|
I turn to the second issue which was the subject of decision in the courts below. Ratio |
In this court Mr Westgate QC for Ms Poshteh supports the judgment of Elias LJ. Ratio |
In addition he relies on the public sector equality duty under section 149 of the Equality Act 2010 as underlying the sharp focus which should have been given by the officer to the effects of the applicants disability. Ratio |
For this purpose, he has subjected the decision letter to exhaustive critical analysis. Ratio |
In summary he says that letter fails to explain the link between the objective reasonableness or otherwise of Ms Poshtehs assertion that the round window reminded her of a prison cell, and the rejection of her claim that it would have a significant impact on her mental health. Ratio |
Nor did the letter-writer address adequately the subjective factors underlying her claim. Ratio |
In particular he should have addressed explicitly the panic attack suffered by her when she visited the property. Ratio |
This was a subjective fact, even if (as she was said to have admitted at the interview) the round window was not exactly like the one in her prison cell. Ratio |
In my view, the appeal on this issue well illustrates the relevance of Lord Neubergers warning in Holmes-Moorhouse (para 7 above) against over-zealous linguistic analysis. Ratio |
This is not to diminish the importance of the responsibility given to housing authorities and their officers by the 1996 Act, reinforced in the case of disability by the Equality Act 2010. Ratio |
The length and detail of the decision-letter show that the writer was fully aware of this responsibility. Ratio |
Viewed as a whole, it reads as a conscientious attempt by a hard-pressed housing officer to cover every conceivable issue raised in the case. Ratio |
He was doing so, as he said, against the background of serious shortage of housing and overwhelming demand from other applicants, many no doubt equally deserving. Ratio |
He clearly understood the potential importance of considering her mental state against the background of her imprisonment in Iran. Ratio |
His description of the central issue (para 39) has not been criticised. Ratio |
It is true that he did not in terms address her claim to have suffered a panic attack. Ratio |
But it is hard to criticise him for giving little weight to an incident which she had not mentioned at the time, either to the NHHG officer who accompanied or in her initial letter, nor apparently to either of her medical advisers. Ratio |
In this respect it was a very different case from El-Dinnaoui, to which Elias LJ referred (para 17 above), where the effect was immediate and obvious, and consistent with previous medical advice. Ratio |
Nor, on the other side, did he hold against her her admission at interview that, whatever her reaction during the visit, the flat would have been acceptable on a temporary basis. Ratio |
In any event, the issue for him was not her immediate reaction on one short visit, but how she would reasonably have been expected to cope with living there in the longer term. Ratio |
On that he was entitled to give weight to the medical evidence submitted by her, and to consider how far it supported her case. Ratio |
Taken in isolation the first sentence of para 45 could have been better expressed. Ratio |
But read in the context of the preceding paragraphs the tenor is reasonably clear. Ratio |
The medical evidence was based on a false premise; the assertions she had apparently made to them about the physical features of the property did not match the facts. Ratio |
This was a point he had fairly put to her at the interview, and she was unable to provide a convincing answer. Ratio |
It might well have been unreasonable to offer her (in the clinical therapists words) accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life. Ratio |
But that was not a reasonable description of this particular property, nor a sufficient ground for her not accepting it. Ratio |
Seen in that light there is no difficulty in understanding his reasoning overall. Ratio |
Nor does it disclose any error of law. Ratio |
Finally I should notice Mr Westgates invitation to the court to address questions related to the standard of review by the court. Ratio |
He developed an elaborate argument by reference to recent authorities supporting a more flexible approach in different contexts, particularly where fundamental rights are a stake (eg Pham v Secretary of State for the Home Department [2015] 1 WLR 1591). Ratio |
This issue was not one on which permission to appeal was given, nor has Mr Westgate offered any convincing reason for extending its scope. Ratio |
I bear in mind also Lord Neubergers comments on the potentially profound constitutional implications of a decision to replace the traditional Wednesbury tests for administrative decisions in general (R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355, para 132). Ratio |
I would agree with Mr Westgate that, since the creation of a statutory right of appeal to the county court, recourse to the highly restrictive approach adopted 30 years ago in the Puhlhofer case (R v Hillingdon London Borough Council, Ex p Puhlhofer [1986] AC 484) is no longer necessary or appropriate. Ratio |
However, the principles governing the right of appeal to the county court under the 1996 Act have been authoritatively established by the House of Lords in Runa Begums case and others following it (including Holmes-Moorhouse), and should be taken as settled. Ratio |
Proliferation of authorities Ratio |
Before leaving the case, I feel bound to say something about the volume of authorities presented in the court bundles. Ratio |
UKSC Practice Direction 6 deals with the form and content of such volumes (paras 6.5.2ff). Ratio |
The appellants are responsible for production of authorities in paper form in sufficient numbers for the court, subject in due course to the courts decisions on costs. Ratio |
Paragraph 6.5.5 states: I would accordingly dismiss the appeal on the second issue. Ratio |
The Court has on numerous occasions criticised the over- proliferation of authorities. Ratio |
It should be understood that not every authority that is mentioned in the parties printed cases need be included in the volumes of authorities. Ratio |
They should include only those cases that are likely to be referred to during the oral argument or which are less accessible because they have not been reported in the Law Reports. Ratio |
In this case the court was presented with eight bundles, including more than 90 cases, reproduced in full, together with 20 other items of statutory material, guidance and textbook extracts (extending in total to some 2,700 pages). Ratio |
The intervention of the Secretary of State was accompanied by two additional bundles, extending to more than 1,000 pages, and including 13 further authorities. Ratio |
The most relevant cases were helpfully, and correctly (PD6 para 6.5.2), brought together in the appellants volumes 1 and 2. Ratio |
Of the remainder the vast majority were not referred to in oral argument, and were unlikely on any view to be more than peripheral to the determination of the issues on which permission had been given. Ratio |
I take as an example volume 4 headed Precedent - whether to depart from previous/follow Europe (or not). Ratio |
This volume included no less than seven House of Lords or Supreme Court authorities, totalling almost 350 pages. Ratio |
The volume was not opened during the hearing. Ratio |
The propositions which the cases were apparently intended to support were familiar, uncontentious, and adequately summarised with appropriate citations, in the printed cases. Ratio |
Similarly, the subjects covered by volume 6 (absence of proper reasons and standard of scrutiny) can be taken as sufficiently familiar to the court not to require extensive citation; still less the inclusion in the bundle of the whole of the Wednesbury case [1948] 1 KB 223 (12 pages), Edwards v Bairstow [1956] AC 14 (2... |
It is essential that those involved in the preparation of these bundles, whether as counsel or solicitors, take full responsibility for keeping their contents within reasonable bounds and exercise restraint. Ratio |
The warning against proliferation of authorities is intended for the protection not just of the court, but more for the parties on whom the costs will ultimately fall. Ratio |
In many cases (as I assume in this case) they will be borne in one way or another from public sources. Ratio |
Conclusion RPC |
For these reasons I would dismiss the appeal, and confirm the decision of the reviewing officer. RPC |
This appeal is about whether the appellant, Nigerian National Petroleum Corporation (NNPC), should have to put up a further USD 100m security (in addition to USD 80m already provided) in respect of a Nigerian arbitration award which the respondent, IPCO (Nigeria) Ltd (IPCO), has been seeking since November 2004 to enfo... |
The enforcement proceedings have, therefore, a long history and it is necessary to set some of it out, to understand the context. Ratio |
The arbitration award has an even longer history. FAC |
It is dated 28 October 2004 and is for USD152,195,971 plus Naira 5m plus interest at 14% per annum. FAC |
The arbitration took place under a contract dated 14 March 1994 whereby IPCO undertook to design and construct a petroleum export terminal for NNPC. FAC |
The contract was subject to Nigerian law and contained an agreement to arbitrate disputes in accordance with the Nigerian Arbitration and Conciliation Act 1988. FAC |
The award once made was challenged by NNPC before the Nigerian Federal High Court. FAC |
Initially, the challenge was for what have been called non-fraud reasons. FAC |
As from 27 March 2009, NNPC, relying on evidence supplied by a former IPCO employee, Mr Wogu, has also challenged the whole award on the basis that IPCO procured it in substantial part by fraudulent inflation of the quantum of its claim using fraudulently created documentation. FAC |
Both Field J [2014] EWHC 576 (Comm) and the Court of Appeal (Christopher Clarke, Burnett and Sales LJJ) [2015] EWCA Civ 1144 concluded that the fraud challenge was made bona fide, that NNPC has a good prima facie case that IPCO practised a fraud on the tribunal and that NNPC has a realistic prospect on that basis of pr... |
It is unnecessary to describe the vicissitudes which befell the challenges before the Nigerian courts. Ratio |
Suffice it to say that they have been closely examined in the English courts on more than one occasion; and that the Court of Appeal has concluded (para 164, per Christopher Clarke LJ) that it would not be profitable to seek to determine which party (if either) is more to blame for the delay, which appears, to me in la... |
At the outset of the English proceedings, Steel J made an ex parte order for enforcement dated 29 November 2004. Ratio |
This led in turn to an application by NNPC for the ex parte order to be set aside under sections 103(2)(f) and 103(3) of the Arbitration Act 1996 (the 1996 Act), or alternatively for its enforcement to be adjourned under section 103(5), pending the resolution of the non-fraud challenges in the Nigerian courts. Ratio |
After an inter partes hearing, Gross J held on 27 April 2005 [2005] EWHC 726 (Comm) that NNPC should pay IPCO a sum of just over USD 13m (which, at that stage, when only the non-fraud challenge had been raised, appeared indisputably due), and that NNPC should provide security in the sum of USD 50m in respect of the adj... |
The USD 13m ordered was duly paid, and the security was also provided. Ratio |
At that stage, it was envisaged that the non-fraud challenge in Nigeria might be resolved with relative despatch. Ratio |
This was not to be, and on 17 July 2007 IPCO applied to have Gross Js order reconsidered on the basis that the Nigerian challenge appeared now to be unlikely to be determined for several years. Ratio |
Tomlinson J in a judgment dated 17 April 2008 concluded that the change of circumstances, catastrophic though it is did not justify a complete re-opening of the exercise undertaken by Gross J. Nevertheless, he ordered NNPC to pay a further net sum of around USD 52m (after taking account of USD 7.7m already paid), plus ... |
He gave permission to appeal and ordered a stay pending appeal, conditional upon NNPC providing additional security to the value of USD 30m. Ratio |
This additional security was also provided. Ratio |
Tomlinson J adjourned any decision regarding enforcement of the balance of the award under section 103(5). Ratio |
The Court of Appeal upheld Tomlinson Js order, but it was further stayed pending the outcome of a petition to appeal to the House of Lords. Ratio |
Before this petition was determined (by refusal of leave), NNPC on 2 December 2008 moved to stay Tomlinson Js order on the ground that it had now obtained evidence of fraud. FAC |
Flaux J on 16 December 2008 stayed Tomlinson Js order to enable NNPC to make an application under section 103(3) based on this new evidence and/or under section 103(5) for a further adjournment of enforcement. FAC |
He ordered that NNPC maintain the security totalling USD 80m which had been ordered by Gross J and Tomlinson J. By application dated 18 December 2008 NNPC applied to vary Tomlinson Js order so as to provide that recognition or enforcement of the Award dated 28 October 2004 be refused pursuant to section 103(3) of the A... |
The grounds given for refusal of recognition or enforcement were that there had been a material change of circumstances and/or Tomlinson J had been misled into believing that the Award had been properly obtained and/or public policy. Ratio |
The ground given for the alternative of adjournment was that the Nigerian courts would or might set aside the Award for fraud, false evidence or forgery. Ratio |
On 27 March 2009 NNPC applied to amend its pleadings in the Nigerian proceedings to raise the fraud challenge (an application adjourned by consent and never determined). FAC |
In this light, a consent order dated 17 June 2009 was made in the English proceedings, whereby inter alia, upon NNPC undertaking to maintain the USD 80m security until further order of the court, those parts of Tomlinson Js order dated 17 April 2008 ordering payment of sums were set aside (para 1), and the decision on ... |
Delay continued to dog the Nigerian proceedings, and on 24 July 2012 IPCO renewed its application to enforce the Award in England, again on the ground that there had been a sufficient change of circumstances to justify this. FAC |
By order dated 1 April 2014 made after a six day hearing in October 2013 Field J dismissed this application, but added that, even if it had been appropriate to reconsider enforcement in England afresh, he would have refused it, on the ground that NNPC had a good prima facie case of fraud, and that this case should cont... |
The security, which NNPC had undertaken by the consent order to maintain, in these circumstances continued. FAC |
The Court of Appeal took a different view. RLC |
It held that there had been a material change of circumstances, and decided to cut the Gordian knot caused by the sclerotic process of the proceedings in Nigeria (paras 172-173). RLC |
By order dated 10 November 2015 it therefore allowed IPCOs appeal, set aside Field Js order (by para 1) and ordered as follows (by paras 2 and 3): 2. RLC |
Upon condition that the respondent provides security as set out at paragraph 5 below: (a) the proceedings shall be remitted to the Commercial Court for determination, pursuant to section 103(3) of the Act, as to whether the arbitral award dated 28 October 2004 (the Award) should not be enforced in whole or in part beca... |
Upon any failure of the respondent to comply with the said condition the adjournment shall lapse and the appellant may enforce the Award in the same manner as a judgment or order of the court to the same effect and the appellant shall immediately be entitled to demand payment under the Guarantee and Further Guarantee (... |
5. RLC |
The security to be provided by the respondent must be provided by 4 pm on 4 December 2015 by way of first class bank guarantee issued in London in similar form to the Guarantee and the Further Guarantee in the sum of US$ 100,000,000. RLC |
This security is to be in addition to that provided by those Guarantees. RLC |
The parties have subsequently agreed that not only the fraud issue, but also the non- fraud issues should be decided should be decided in the English enforcement proceedings. RLC |
The order dated 10 November 2015 did not reflect the Court of Appeals initial conclusions as to the appropriate disposition. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.