New Zealand Law Society - Supreme Court roundup December 2021

Supreme Court roundup December 2021

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

Supreme Court of Canada

Mediation, confidentiality, settlement exception

Association de médiation familiale du Québec v. Bouvier [2021] SCC 54 (17 December 2021)

Unsuccessful appeal from Quebec CA - Bi and Bo were common law spouses for more than three years - Had two children - After relationship ended, they participated in several family mediation sessions in 2012 with a certified mediator to resolve their disputes about children’s care, the family home and other matters - At end of process, mediator prepared a document known as “summary of mediated agreements” that explained how the parties had agreed to settle their disputes -   

In 2014, Bi filed in Quebec’s Superior Court for more money than set out in the summary. Bo said they should stick to terms of contract agreed in mediation, and set out in summary - Bi denied contract’s existence and objected to summary being admitted in evidence - Said summary protected by rule of absolute confidentiality -

Superior Court rejected Bi’s argument - In its reasons, court relied on commercial mediation case from 2014 - In that case, SC acknowledged confidentiality of mediation process, but recognised “settlement exception” - Exception allowed parties to settlement to prove it existed - Superior Court said Bi and Bo had a contract - Bi appealed to Quebec CA, which also sided with Bo – Bi did not appeal decision – However, Association de médiation familiale permitted to take her case to SC -

SC ruled for Bo – Majority said settlement exception outlined in commercial case also applied to family mediation cases - Said certainly true that confidentiality necessary in any mediation to allow for frank discussion between the parties in order to encourage settlements – Also true that, unlike in the case of civil or commercial mediation, negotiations following breakdown of  relationships often took place during period of personal upheaval that might heighten vulnerability of either spouse -

However, family mediation process included other safeguards beyond confidentiality to assure protection of vulnerable parties - Additional safeguards included certified and impartial mediator parties chose and judge who confirmed any agreement arising from mediation -

Due to these important safeguards, rule of absolute confidentiality not required - Meant people could use settlement exception to prove the existence and terms of what they agreed to during mediation – Appeal dismissed.

United Kingdom Supreme Court

Contempt of Court, SC jurisdiction

Attorney-General v Crosland [2021] UKSC 58 (20 December 2021)

Unsuccessful appeal -C publicly disclosed outcome of SC judgment while it was still in draft and subject to embargo, knowing disclosure  prohibited – Believed it was misleading and breaching embargo would generate higher level of publicity for his complaints - Attorney General applied to SC alleging C in contempt of court - On 10 May 2021, three–justice SC panel (First Instance Panel) said C in contempt of court, imposed £5,000 fine, and ordered him to pay proportion of Attorney General’s costs – C appealed -

SC saw two issues arising - First, whether SC had jurisdiction to entertain appeal against orders SC as court of first instance exercising its contempt jurisdiction - Second, whether First Instance Panel correct to hold C in contempt of court and to order the amount of costs it did –

SC majority said it had jurisdiction to hear appeal – Dismissed C’s appeal on merits – Majority said s 13 of the Administration of Justice Act 1960 gave right of appeal from SC exercising its contempt jurisdiction, acting at first instance - Section 13 gave this right of appeal from any court (subject to irrelevant exceptions) and expressly included SC within meaning of ‘court’ - Not a conceptual impossibility to appeal from one SC panel to another larger panel -

One Judge said SC did not have jurisdiction under s 13 to hear C’s appeal – Said SC had inherent jurisdiction to review an order should it consider that there has been an injustice of a particularly serious nature - Threshold of seriousness not passed here and inherent jurisdiction should not be exercised –

On merits First Instance Panel made no material error in considering context of C’s actions - Right to rule C’s conduct amounted a criminal contempt of court - Embargo and contempt finding interfered with C’s right to freedom of expression under Article 10 of the European Convention on Human Rights - However, interference justified because  prescribed by law and in pursuit of legitimate aim - Also proportionate because did not prevent C from expressing publicly his disagreement with  judgment at any point after its hand down -

First Instance Panel an independent and impartial tribunal - No apparent bias - Decision to bring contempt proceedings Attorney General’s, not SC’s - Further, First Instance Panel did not include any justice who sat on appeal relating to judgment which was disclosed -

Attorney General not in breach of any obligation to C  by failing to disclose to him that Government may have been in breach of a court embargo in July 2020 - Related to separate case and not relevant to C -

Costs ruling not oppressive or unjust – Cost award matter for discretion of First Instance Panel - Made no error of legal principle which would warrant setting aside order - Nor did court give reason to C to believe costs would be decided according to rules for criminal proceedings – Appeal dismissed.

Bank appointments, recognition of Head of State, Act of State doctrine

“Maduro Board” of Central Bank of Venezuela v “Guaido Board” of Central Bank of Venezuela [2021] UKSC 57 (20 December 2021)

Partly successful appeal from CA - In May 2018, a Presidential election took place in Venezuela -  incumbent, M, claimed to have won - Her Majesty’s Government in the United Kingdom (HMG) considered election deeply flawed - On 15 January 2019, Venezuelan National Assembly announced that G was interim Venezuelan President  - On 4 February 2019, UK Foreign Secretary declared UK recognised G  “as the constitutional interim President of Venezuela, until credible presidential elections can be held” – HMG reiterated statement in subsequent letter and in statements made to the Court on behalf of the Foreign Secretary in these proceedings -

M  Board and G Board both claimed to act on behalf of Central Bank of Venezuela (BCV) - M Board claimed M as Venezuelan President had appointed it to represent BCV - G Board claimed to be ad hoc BCV board G had appointed as interim Venezuelan President under ‘transition statute’ Venezuelan National Assembly passed - Venezuelan Supreme Tribunal of Justice (STJ) issued several judgments ruling transition statute null and void - M Board and G Board both claimed to be exclusively authorised to act for BCV, including in arbitration proceedings in London Court of International Arbitration and in respect of gold reserves of about US$1.95 billion Bank of England held for BCV - Central issue on appeal was which party entitled to give instructions for BCV –

Commercial Court ordered trial of two preliminary issues - First (recognition issue) whether HMG recognised M or G and, if so, in what capacity and on what basis - Second (act of state issue) whether courts in this jurisdiction might consider validity under Venezuelan law of (among other things) appointments to BCV board G made and transition statute Venezuelan National Assembly passed -

First instance Judge said, regarding recognition issue, HMG conclusively recognised G as Venezuela’s head of state - Judge further said validity of transition statute and G’s appointments engaged act of state doctrine and were non–justiciable - M Board appealed successfully to CA on both issues - On recognition issue, CA said HMG had recognised G as person entitled to be head of state (de jure) but left open possibility that it impliedly recognised M as in fact exercising some or all of the powers of head of state (de facto) - Said issue best determined by posing further questions of Foreign Commonwealth and Development Office - Remitted matter to Commercial Court for this purpose – CA said act of state issue could not be answered at that stage without considering both whether HMG recognised G as Venezuela’s head of state for all purposes and whether the STJ judgments should be recognised by courts in this jurisdiction –

G Board appealed to SC – SC unanimously allowed appeal in part –

On recognition issue  SC said under UK constitutional arrangements, recognising foreign states, governments and heads of states a matter for executive - Courts in this jurisdiction accepted executive statements as conclusive on whether individual to be regarded as head of state - Rule called ‘one voice principle’ - Rationale that certain matters peculiarly within  executive’s cognisance - Historically, courts had drawn distinction between recognising a government de jure and de facto - Distinction now unlikely to have any useful role to play before courts in this jurisdiction -

HMG’s statement was clear and unequivocal recognition of G as Venezuelan President - Necessarily entailed M not recognised as President - Under one voice principle, unnecessary to look beyond the terms of HMG’s statement - No question of implied recognition arose and CA wrong to think it did – CA relying on outdated concepts of de jure and de facto recognition also misplaced – Recognition question here also unnecessarily complicated by distinction between whom HMG recognised as Venezuela’s head of state and whom it recognised as head of government - Relevant matter was identity of Venezuela’s head of state, not its head of government -

Followed that courts in this jurisdiction bound to accept HMG’s statements which established that HMG recognised G as constitutional interim President -

Re act of state, two aspects of doctrine with which appeal concerned - First (Rule 1) this country’s courts will recognise and not question effect of foreign state’s legislation or other laws relating to any acts which took place or effect within territory of that state - Second (Rule 2) that courts of this country recognise, and would not question, effect of act of a foreign state’s executive relating to any acts which took place or took effect within territory of that state - Although Rule 2 had been doubted, in light of substantial body of authority in its support its existence should now be acknowledged - Furthermore, no basis for limiting Rule 2 to cases of unlawful executive acts concerning property, such as expropriation or seizures -

Rule 2 applied to exercise of executive power such as G’s appointments to BCV board - However, several exceptions to act of state doctrine, including for acts which took place outside a state’s territory, for challenges to acts which arose incidentally, and for judicial acts - Extra–territorial exception did not apply here because relevant appointments made within Venezuela and not in excess of Venezuela’s jurisdiction in international law - Incidental exception did not apply either, because these proceedings involved direct attack upon validity of G’s appointments to BCV’s board –

However, judicial rulings of foreign state not subject to act of state doctrine - For court in this jurisdiction to decide whether to recognise or to give effect to the STJ judgments would not engage act of state doctrine - Fell outside preliminary issues and had to be remitted to Commercial Court for further consideration - Courts in this jurisdiction would refuse to recognise or give effect to foreign judgments such as those of the STJ if to do so would conflict with domestic public policy - UK public policy would necessarily include the one voice principle which was fundamental rule of UK constitutional law - As a result, if and to extent that reasoning of the STJ leading to its decisions that G’s acts were unlawful and nullities depended on view that he was not Venezuelan President, those judicial decisions could not be recognised or given effect by courts in this jurisdiction because to do so would conflict with view of UK executive -

Transition statute was foreign legislation - Its validity might fall within Rule 1 - No doubt about existence of Rule 1, which would ordinarily prohibit challenges to transition statute - However, the validity of STJ judgments impugning the transition statute not subject to the act of state doctrine - In any event, Rule 1 not necessary to the analysis because, subject to effect given to STJ judgments, Rule 2 precluded questioning G appointments to BCV’s board -

Courts in this jurisdiction would (subject to the effect to be given to the STJ judgments) not question lawfulness or validity of appointments G made to BCV board - However, still  necessary to consider whether STJ judgments should be recognised or given effect in this jurisdiction - Proceedings remitted to the Commercial Court – Appeal partly allowed.

Passport, gender, European Convention on Human Rights

R (on the application of Elan-Cane v Secretary of State for the Home Department [2021] UKSC 56  (15 December 2021)

Unsuccessful appeal from CA  - Her Majesty's Passport Office (HMPO) a Home Office agency which dealt with issuing passports and related matters - HMPO's policy was passport applicants stated on application form whether their gender male or female - If no gender stated, gender shown on applicant's supporting documents selected - Passport issued recording passport–holder's gender as male (M) or female (F) – Transgender people (defined to mean people who acquired a gender, either male or female, different from one recorded at birth) could obtain passports showing their acquired gender, on production of gender recognition certificate, a re–registered birth certificate, or doctor's letter -

E born female but identified as non–gendered - In 1995, E contacted UK Passport Authority, an HMPO predecessor, to inquire whether possible for passport to be issued without making declaration of being male or female – Told it was not – E applied for, and issued with, passport in which gender recorded as female - E made similar inquiries in 2005 and in correspondence between 2010 and 2016, with similar results -

In 2014, HMPO completed internal review of gender marking in passports - Noted there had been very few requests for non-gendered (X) marking, other than from E, and that UK legislation, including discrimination and equality legislation, based on all individuals being categorised as male or female - Said recognising third gender would put HMPO "in isolation from the rest of government and society" and would result in administrative costs of about £2m being incurred - Government repeated these points when it considered the issue in 2016.

E said HMPO policy contravened right to respect for private life guaranteed by article 8 of European Convention on Human Rights (Convention), either taken on its own or read together with the prohibition on discrimination in article 14 – HC and CA rejected that argument – E Appealed to SC –

SC unanimously dismissed appeal – Said central question whether HMPO's policy breached UK's obligations under Convention - No judgment of European Court of Human Rights (ECtHR) which established obligation to recognise a gender category other than male or female, and none which would require the Secretary of State to issue passports without any indication of gender - In fact, there did not appear to have been any case before ECtHR concerned with applying Convention to individuals who identified as non–gendered – No violation of E’s convention rights – Appeal dismissed.

Northern Ireland, Troubles, obligation to investigate, European Convention

In the Matter of an Application by Margaret McQuillan for Judicial Review (Northern Ireland) (Nos 1,2 and 3) [2021] UKSC 55 (15 December 2021)

Partially successful appeal from Northern Ireland CA - Appeals related to distressing events which occurred in the province in 1971 and 1972 during "the Troubles" - Concerned circumstances where UK Government obliged to investigate death or allegation of torture or inhuman or degrading treatment under Articles 2 and 3 of the European Convention on Human Rights (Convention) and Human Rights Act 1999 (HRA), and how to assess investigation independence -

One appeal related to tragic death by shooting of S, fatally wounded by bullet striking her head while she was passenger in car in Belfast on 8 June 1972 (McQ case)  - Following discovery, in June 2014, of military logs suggesting possibility member of British Army's Military Reaction Force  fired fatal shot, Police Service of Northern Ireland (PSNI) Chief Constable proposed to conduct further investigation into S’s death - PSNI's Legacy Investigations Branch (LIB) would investigate – Before proposed further investigation took place, McQ, S’s sister issued judicial review proceedings seeking declaration that LIB insufficiently independent to conduct proposed further investigation contravening Convention Article 2 -

Other appeal (Hooded Men case) related to very serious ill-treatment of people security forces detained for Royal Ulster Constabulary  interrogation in August 1971 - Fourteen men, known as  Hooded Men and who included McG and McK, subjected to unacceptable treatment - No evidence anyone involved in authorising or conducting Hooded Men's ill-treatment had ever been subject of criminal charges - In the 1970s, Hooded Men brought civil claims against UK ministers (which were settled) -  Ireland also brought inter-state application to  European Commission of Human Rights (Commission), and subsequently to European Court of Human Rights (ECtHR) against UK regarding Hooded Men’s treatment – In 1978 ECtHR said Hooded Men's treatment constituted inhuman and degrading treatment (but not torture) breaching Convention Article 3 –

In 2014, Irish national broadcaster, RTÈ, broadcast documentary about Hooded Men - Referred to documents from UK National Archives which, RTÈ said, were newly discovered and had not been before Commission or ECtHR - Documentary also referred to memorandum from Home Secretary to Prime Minister, written in March 1977, which referred to the use of "torture" and to its approval by UK ministers (Rees Memo) - Following RTÈ documentary, the PSNI considered if there was sufficient evidence to warrant further investigation into allegation that UK Government authorised and used torture in Northern Ireland in Hooded Men case - On 17 October 2014, PSNI concluded there was not - Separately, Irish Government applied to ECtHR for revision of its 1978 judgment, requesting that finding of inhuman or degrading treatment be substituted by one of torture - ECtHR dismissed request - On 20 January 2015 and 19 May 2015, McG and McK’s daughter applied for judicial review of PSNI’s  17 October 2014 decision –

SC allowed appeals by Chief Constable for Northern Ireland, Secretary of State for Northern Ireland, and Northern Ireland Department of Justice, upheld first instance Judge’s and CA majority decisions to quash PSNI 17 October 2014 decision regarding Hooded Men case, but otherwise dismissed applications for judicial review – Appeals allowed, judicial review applications partly dismissed.

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