Court : House of Lords
LORD STEYN My Lords, 1. I have read the opinions of my noble and learned friends Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry and Lord Carswell. I agree with those opinions. I would also allow the appeal. LORD PHILLIPS OF WORTH MATRAVERS My Lords, 2. Over a period prior to 1983 the respondent Mr Uttley committed a number of sexual offences, including three rapes. My noble and learned friend Lord Rodger of Earlsferry has described these in detail, together with the maximum sentence which, in 1983 could have been imposed for each offence. It suffices to note that rape carried a maximum sentence of life imprisonment. 3. The respondent was not prosecuted for these offences until 1995. He pleaded guilty to some of the offences, was convicted of the others and was sentenced to a total of 12 years imprisonment. The practical consequences of that sentence differed significantly from those that would have followed had the respondent been sentenced to 12 years imprisonment in 1983...
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LORD BINGHAM OF CORNHILL My Lords, 1. The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor's negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question? 2. I am indebted to my noble and learned friend Lord Hope of Craighead for his detailed account of the facts and the history of these proceedings, which I need not repeat. 3. For some six years beginning in 1988 the claimant, Miss Chester, suffered repeated episodes of low back pain. She was conservatively treated by Dr Wri...
Tag this Judgment!Court : House of Lords
LORD BINGHAM OF CORNHILL My Lords, 1. Sections 5(2) of the Road Traffic Act 1988 and 11(2) of the Terrorism Act 2000, conventionally interpreted, impose a legal or persuasive burden on a defendant in criminal proceedings to prove the matters respectively specified in those subsections if he is to be exonerated from liability on the grounds there provided. That means that he must, to be exonerated, establish those matters on the balance of probabilities. If he fails to discharge that burden he will be convicted. In this appeal by the Director of Public Prosecutions and this reference by the Attorney General these reverse burdens ("reverse" because the burden is placed on the defendant and not, as ordinarily in criminal proceedings, on the prosecutor) are challenged as incompatible with the presumption of innocence guaranteed by article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). Thus the first question for consideration ...
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LORD NICHOLLS OF BIRKENHEAD My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow this appeal and dismiss the cross-appeal. LORD HOFFMANN My Lords, 2. SABAF Spa ("SABAF") was the proprietor of a United Kingdom patent GB 2,100,411 for a burner for gas cookers and hobs. The application was filed on 12 June 1981 and the patent expired on 11 June 2001. In these proceedings it alleges that Meneghetti Spa ("Meneghetti") infringed the patent during its term by importing infringing products into the United Kingdom. Meneghetti counterclaims for a declaration that the patent was invalid because the invention was obvious. Laddie J held that Meneghetti had imported the products but that the patent was invalid. The Court of Appeal (Peter Gibson, Jonathan Parker and Longmore LJJ) [2002] EWCA Civ 976; [2003] RPC 264 held that the patent was valid but that Meneghetti had not import...
Tag this Judgment!Court : House of Lords
LORD NICHOLLS OF BIRKENHEAD My Lords, 1. The Human Rights Act 1998 introduced into the law of this country the concept of Convention rights. Section 12 made special provision regarding one of these rights: the right to freedom of expression. When considering whether to grant relief which, if granted, might affect the exercise of the Convention right to freedom of expression the court must have particular regard to the importance of this right: section 12(4). Additionally, section 12(2) set out a prerequisite to the grant of relief against a person who is neither present nor represented. The court must be satisfied the applicant has taken all practicable steps to notify the respondent or that there are compelling reasons why the respondent should not be notified. Further, section 12(3) imposed a threshold test which has to be satisfied before a court may grant interlocutory injunctive relief: 'No such relief [which might affect the exercise of the Convention right to freedom of express...
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LORD BINGHAM OF CORNHILL My Lords, 1. The point of law of general public importance certified by the Court of Appeal (Criminal Division) under section 33(2) of the Criminal Appeal Act 1968 in this case is: "Whether it is an abuse of process for the Crown to prosecute a charge of indecent assault under section 14(1) of the Sexual Offences Act 1956 in circumstances where the conduct upon which that charge is based is an act of unlawful sexual intercourse with a girl under the age of 16 in respect of which no prosecution may be commenced under section 6(1) of the 1956 Act by virtue of section 37(2) of, and Schedule 2 to, the 1956 Act". The Court of Appeal resolved that question in favour of the Crown and adversely to J, who appeals to the House against that decision. 2. In 1996-1997, when he was aged 35-37 and she was aged 13-14, J repeatedly had sexual intercourse with C and at his request she repeatedly had oral intercourse with him. He ran a business on land rented from C's father and ...
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LORD HOFFMANN My Lords, The proceedings 1. Kirin-Amgen Inc ("Amgen"), a Californian pharmaceutical company, is the proprietor of a European patent (EP 0148605B2) relating to the production of erythropoietin ("EPO") by recombinant DNA technology. EPO is a hormone made in the kidney which stimulates the production of red blood cells by the bone marrow. The discovery by Amgen of a method of making EPO artificially for use as a drug was a significant advance in the treatment of anaemia, particularly when associated with kidney failure. Amgen market it under the name Epogen and the patent (which will expire on 11 December 2004) has been very profitable. 2. These appeals arise out of a dispute concerning both the validity and infringement of the patent between Amgen and two other pharmaceutical companies. Transkaryotic Therapies Inc ("TKT") is a Massachusetts corporation. It has also developed a method of making EPO, which it markets under the name Dynepo. It uses a process which it calls "...
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LORD BINGHAM OF CORNHILL My Lords, 1. I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Steyn. I agree with it, and would make the order which he proposes. LORD NICHOLLS OF BIRKENHEAD My Lords, 2. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons he gives, with which I agree, I would dismiss this appeal. LORD STEYN My Lords, 3. On 19 February 2003 a judge in the Family Division of the High Court (Hedley J) dismissed an application for an injunction restraining the publication by newspapers of the identity of a defendant in a murder trial which had been intended to protect the privacy of her son who is not involved in the criminal proceedings: Re S [2003] EWHC 254 (Fam). By a majority (Lord Phillips of Worth Matravers MR and Latham LJ, with Hale LJ dissenting) the Court of Appeal dismissed an appeal against the order of Hedley J: [2004] Fam 43. I. The death of a child and the crimi...
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LORD SCOTT OF FOSCOTE My Lords, 1. On 29 July 2004, the Appellate Committee announced that this appeal should be allowed. I now give my reasons for reaching that decision. Introduction 2. The actual issue for decision on this appeal is an apparently simple one that can be very shortly stated. Do the communications between the Bank of England, their solicitors, Freshfields, and counsel relating to the content and preparation of the so-called overarching statement submitted on behalf of the Bank to the Bingham Inquiry qualify for legal professional privilege? It is contended by the respondents, and was held by the Court of Appeal, that they do not. But the broader issues that have been debated on this appeal are not in the least simple. They have required your Lordships to consider the policy justifications for the existence of legal professional privilege in our law and, generally, the permissible scope of the privilege. In relation to what sort of communications can legal professional ...
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LORD NICHOLLS OF BIRKENHEAD My Lords, 1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons he gives, with which I agree, I would allow this appeal. LORD STEYN My Lords, 2. I have had the advantage of reading the opinion of my noble and learned friend Lord Hoffmann. I agree with it. I would also allow the appeal and restore the decision of the tribunal and Collins J. LORD HOFFMANN My Lords, 3. The issue in this appeal is whether the personal administration of a drug such as a vaccine by a NHS doctor to a patient is a taxable supply for the purposes of value added tax. The European Sixth Directive (77/388/EEC) requires that the provision of medical care in the exercise of the medical and paramedical professions should be exempt from VAT: see article 13 A 1(c). On the other hand, the supply of goods (defined in article 5.1 as "the transfer of the right to dispose of tangible property as owner") is taxable. The question is...
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