New Zealand Law Society - Supreme Court roundup 23 - 29 July

Supreme Court roundup 23 - 29 July

Supreme Court roundup 23 - 29 July

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.

New Zealand Supreme Court

Self-represented appellant, strike-out rules

Zhang v District Court at Wellington [2021] NZSC 91

Unsuccessful leave application – Self-represented Z sought to file charging documents in DC to pursue proposed private prosecutions – Court did not accept charging documents not accepted for filing because evidence provided not sufficient to justify a trial – Z then sought to present documents for filing in HC seeking judicial review of DC decisions – HC Registrar did not accept documents for filing – Z sought review of that decision - Proceedings were referred to HC Judge who struck out both claims as abuse of process – Z sought leave to appeal out of time directly to SC from HC decision - First proposed private prosecutions based on allegations that YouTube CEO committed murder and manslaughter arising from the removal of a video about COVID-19 from YouTube - Second involved allegations that Secretary for Justice had conspired to defeat the course of justice - Alleged offence related to court registry officer rejection of an electronic evidence bundle – Z said this reflected more systemic issue not consistent with Evidence Act 2006 – Z said no proper basis for striking out claims, both of which he said complied with High Court Rules 2016 – SC said proposed appeal would challenge application of High Court Rules dealing with strike-out for abuse of process - Appeal would turn on Judge’s assessment that both claims were so deficient as to be incapable of remedy by repleading - No challenge to principles applied; rather, challenge is to outcome - Outcome turned on particular circumstances of case - No question of general or public importance arose - Nor did anything Z raised give rise to any appearance of a miscarriage of justice- Proposed appeal had no prospects of success and no exceptional circumstances warranting a direct appeal – Application dismissed.

Judicial Committee of the Privy Council

Age discrimination, constitutional law

Royal Cayman Islands Police Association and ors v Commissioner of Royal Cayman Islands Police Service and anor [2021] UKPC 21 (26 July 2021)

Partly successful appeal from Cayman Islands CA - Second to Ninth Appellants officers in  Royal Cayman Islands Police Service appointed before 22 November 2010 - Before 22 November 2010, police officers below Chief Inspector (non-gazetted officers) were automatically retired at the age of 55 under section 20 Police Law (2006 Revision) - Alternatively, could choose to be re-engaged but only at the rank of Constable and subject to the Commissioner's refusal (re-engagement policy) - On 22 November 2010, section 21 of the Police Law 2010 raised retirement age to 60 for non-gazetted officers appointed after 22 November 2010 (which did not include Appellants) - Re-engagement policy continued to apply when the non-gazetted officer reached retirement age - As a result of the law at the time, the Appellants were forced to retire aged 55 at a time when the retirement age for officers appointed after 22 November 2010 was aged 60 - Appellants brought a claim before Cayman Islands Grand Court for unlawful discrimination on ground of age as well as nationality (the claim based on nationality not appealed to the Judicial Committee of the Privy Council) - Claim relied on various sections of the Cayman Islands Bill of Rights (Schedule 2 Part 1 of the Cayman Islands Constitution Order 2009) -  GC and CA dismissed claim - CA said compulsory retirement on age grounds not enough to trigger section 9 Bill of Rights as Appellants did not suffer any particular and serious individual consequences - As section 9 not engaged, gateway to section 16 not opened - Had section 9 been engaged, CA would have decided that difference in  retirement age not justified under section 16 – CA said re-engagement policy should be considered as part of the retirement policy and could not be challenged as a free-standing policy (but if it had been free-standing, its rigid application was in breach of section 19) CA said did not need to consider standing but said that if it had, would have concluded that the Third and Ninth Appellants did not have standing under section 26 as they were not directly affected by the re-engagement policy.

Appellants appealed to the PC –  Three issues on appeal were: 1. Whether Appeellants discriminatory treatment of the Appellants on the grounds of age by requiring them to retire at the age of 55 fall within the ambit of section 9 of the Cayman Islands Constitution Order 2009, Part 1 of the Bill of Rights (such that there was an unjustified breach of section 16 of the Bill of Rights when read with section 9)? 2. Was the re-engagement policy a free-standing policy (such that its rigid application was a breach of section 19 of the Bill of Rights)? 3. Did Third and Eleventh Appellants have standing to challenge the re-engagement policy? PC agreed with CA that section 16 of the Constitution did not apply when read in conjunction with section 9 - Dismissed appeal regarding issue one - Allowed appeals on issues two and three, so that the second, third, fifth, sixth, eighth, ninth, tenth and eleventh plaintiffs’ cases were remitted to GC to reconsider their claims based on the re-engagement policy.

United Kingdom Supreme Court

Restraint of trade, solicitor’s undertaking

Harcus Sinclair LLP v Your Lawyers Ltd [2021] UKSC 32 (23 July 2021) 

Successful appeal from CA - On 26 January 2016 Your Lawyers LLP (Your Lawyers) issued a claim against the Volkswagen Group, intending to apply for a Group Litigation Order (GLO) - J, a solicitor at Your Lawyers, approached Harcus Sinclair LLP (Harcus Sinclair), a firm that had more experience of undertaking group actions, to propose collaborating on the emissions litigation - Your Lawyers sent a draft non-disclosure agreement (NDA) to P, a solicitor at Harcus Sinclair, which he signed on behalf of his firm on 11 April 2016 - NDA included a non-compete clause through which Harcus Sinclair undertook, for a period of six years, "not to accept instructions for or to act on behalf of any other group of claimants in the contemplated group action" without Your Lawyers’ permission - The firms began an informal collaboration, though no formal collaboration agreement was ever reached –

During the informal collaboration, Harcus Sinclair recruited claimants for its own group action - On 19 October 2016 Harcus Sinclair issued its own claim form in the emissions litigation and, on 28 October 2016, filed its own application for a GLO - On 21 December 2016 it agreed with another law firm, Slater and Gordon, to work together in the emissions litigation - On 6 January 2017 J emailed P saying Harcus Sinclair’s actions breached the non-compete clause - Your Lawyers also later contended the non-compete clause was a solicitor’s undertaking - Emissions litigation put on hold while the dispute between the two firms was referred to trial –

HC ruled non-compete clause enforceable and granted injunction requiring Harcus Sinclair to cease acting in the emissions litigation for six years - CA allowed Harcus Sinclair’s appeal – Said non-compete clause unenforceable. Your Lawyers appealed to SC –

SC unanimously allowed appeal – First issue whether non-compete clause unenforceable as an unreasonable restraint of trade - Parties agreed non-compete clause a restraint of trade - Issue  whether it was reasonable – Had to be both (i) reasonable between the parties and (ii) not contrary to public interest - To be reasonable between the parties had to protect legitimate interests of  party seeking its protection and go no further than reasonably necessary to protect those legitimate interests - Critical question on (i) was whether Your Lawyers’ legitimate interests limited to those in the NDA - SC said not so limited - That the parties intended or contemplated informal collaboration process could be considered even though NDA did not include any obligation to do so - Your Lawyers had legitimate interests protecting its own proposed group claim from Harcus Sinclair setting up a rival group claim - Non-compete clause reasonably necessary to protect those legitimate interests - Logical and necessary that it should last for a six-year period as that roughly equated to limitation period for claims in the emissions litigation - Non-compete clause therefore reasonable between parties - Regarding (ii), non-compete clause not unreasonable as being contrary to the public interest –

Second issue whether non-compete clause was a solicitor’s undertaking - For undertaking given by a solicitor to be a solicitor’s undertaking it had to be given in their "capacity as a solicitor"  - SC said helpful to consider two questions - First, whether what the undertaking required solicitor to do (or not do) was something solicitors regularly carried out (or refrained from carrying out) as part of their ordinary professional practice - Second, whether matter to which undertaking related involved sort of work solicitors regularly carried out as part of their ordinary professional practice - Harcus Sinclair’s promise not to compete with Your Lawyers in the emissions litigation did not involve the sort of work solicitors undertook not to do as part of their ordinary professional practice - Matter to which the promise related was potential business opportunity and reason for giving it was to further parties’ business interests rather than that of any client - In giving the undertaking, Harcus Sinclair acting in business rather than professional capacity - Non-compete clause not a solicitor’s undertaking –

Third and fourth issues were if non-compete clause was a solicitor’s undertaking, would courts’ supervisory jurisdiction apply to Harcus Sinclair and/or P? SC said not necessary to decide these issues given the conclusions on the first two issues – Also said court’s inherent supervisory jurisdiction over solicitors applied because of their status as officers of the court - Question over whether inherent jurisdiction should be extended to cover LLPs and limited companies providing legal services – Not appropriate to deal with issue here. Appeal allowed.

Royal Mail Group v Efobi [2021] UKSC 33 (23 July 2021)

Unsuccessful appeal from CA - Appellant, E, worked as a postman for Royal Mail - Born in Nigeria and identified as black African and Nigerian - Had qualifications in computing and wished to obtain a managerial or technical role within Royal Mail - Between December 2011 and February 2015 applied unsuccessfully for over 30 such jobs - In June 2015, E brought a claim against Royal Mail in employment tribunal alleging that rejection of his applications resulted from direct or indirect discrimination because of his race – Also alleged racial harassment and victimisation - Tribunal dismissed E’s discrimination claims - Appeal to Employment Appeal Tribunal succeeded on grounds that employment tribunal had wrongly interpreted section 136(2) of the Equality Act 2010 (2010 Act), which dealt with burden of proof in discrimination cases, and had made errors of law in assessing the evidence - CA reversed that decision - Permission to appeal to SC granted on  two questions of law: (i) whether change in wording of equality legislation altered the burden of proof in employment discrimination cases and (ii) when a tribunal may draw adverse inferences from the absence of a potential witness – SC unanimously dismissed appeal – Said no substantive change to law – Regarding adverse inferences SC said tribunals should be free to draw, or decline to draw, inferences in the case before them using their common sense - In deciding whether to draw an adverse inference from the absence of a witness, relevant considerations will naturally include whether witness was available to give evidence, what evidence the witness could have given, what other evidence there was bearing on the points on which the witness could have given evidence and significance of those points in the context of the case as whole - How such matters should be assessed could not be encapsulated in a set of legal rules – Appeal dismissed.

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