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Supreme Court 14 to 20 May

21 May 2020

Decisions, proceedings and news from the highest courts in some common law jurisdictions in the last week are as follows:

Supreme Court of New Zealand

Rape, approach to scientific evidence

Herbert v R [2020] NZSC 48 (18 May 2020)

Unsuccessful leave application - H convicted after trial on one charge of sexual violation by rape – CA dismissd his appeal against conviction - Said leave to appeal to SC should be granted, first, because approach to scientific evidence, particularly as it affected assessing reasonableness of verdicts – Second, he said CA erred in approach to trial evidence at trial and that gave rise to a miscarriage of justice - If evidence had been properly construed, Court would have concluded verdict was unreasonable – SC said no challenge to principles applicable to unreasonable verdicts -Proposed appeal would turn on applying principles to the particular facts - No question of general or public importance arose - Nothing H raised by Mr Herbert indicated miscarriage of justice arising – Application dismissed.

High Court of Australia

No decisions released during this period.

Supreme Court of Canada

No decisions released during this period.

Hong Kong Court of Final Appeal

No decisions released during this period.

Judicial Committee of the Privy Council

Conveyancing, defect, liability for defect

Lovering and anor v Atkinson and ors [2020] UKPC 14 (18 May 2020)

Unsuccessful appeal from Guernsey CA – Atkinson Ferbrache Richardson (“AFR”), the appeallants, a firm of advocates and notaries public, were advisors and conveyancers when Richard and Christine Lovering (“L”)  were purchasing a property in early 2009  ("the 2009 Conveyance"). -  L purchased the property from Mrs Harrison (“H”) - In 1984 H had conveyed part of the property’s land to a neighbouring third party ("the 1984 Conveyance") - Question on appeal was whether, on a correct construction, the 1984 Conveyance included part of the property’s driveway - If so, that would mean that the L did not have legal title over the full driveway leading to the property - Arguably this rendered the 2009 Conveyance subject to a defect, for which the AFR might be liable in negligence – A majority said

CA entitled to conclude (a) that the driveway as constructed at the location in dispute was to a material extent built on land owned by third parties and (b) that there was a defect in the title L acquired in the 2009 Conveyance in that the land which H alienated in the 1984 Conveyance materially reduced the only access route to which they had title – Appeal dismissed.

Supreme Court of Ireland

No decisions released during this period.

Singapore Court of Appeal

No decisions released during this period.

Supreme Court of the United Kingdom

Internment, Northern Ireland, Ministerial decision

R v Adams [2020] UKSC 19 (13 May 2020)

Successful appeal from Northern Ireland CA - From 1922 legislation authorised the detention without trial of people in Northern Ireland, a regime commonly known as internment -  Initially an interim custody order (“ICO”) made, under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (“the 1972 Order”), where the Secretary of State considered that an individual was involved in terrorism - ICO made in respect of A  on 21 July 1973 - He was detained under that ICO, attempted to escape from detention twice and was twice convicted of attempting to escape from lawful custody on 20 March 1975 and 18 April 1975 - A legal opinion, published under the 30 years’ rule, suggested that it was a condition precedent to making an ICO that the Secretary of State should have considered the matter personally – A challenged the validity of the 1973 ICO– He said ICO was invalid because the Secretary of State did not personally consider whether A was involved in terrorism -  Consequently his following detention and convictions were also unlawful - Northern Ireland CA dismissed his appeal- He appealed to the SC - SC unanimously allowed the appeal – It said the power under article 4 of the 1972 Order should be exercised by the Secretary of State personally, and, therefore, that the making of the ICO in respect of  A was invalid, and that his consequent detention and convictions were unlawful.

Supreme Court of the United States

Opati and ors v Republic of Sudan and ors No 17-1268 (18 May 2020)

In 1998, al Qaeda operatives detonated truck bombs outside the United States Embassies in Kenya and Tanzania - Victims and their family members sued the Republic of Sudan under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act (FSIA), formerly 28 U. S. C. §1605(a)(7), alleging that Sudan had assisted al Qaeda in perpetrating the attacks - At the time, the plaintiffs faced a bar on punitive damages for suits proceeding under any of the §1605 sovereign immunity exceptions -  In 2008, Congress amended the FSIA in the National Defense Authorization Act (NDAA) - In NDAA §1083(a), Congress created an express federal cause of action for acts of terror that also provided for punitive damages -  In §1083(c)(2), it gave effect to existing lawsuits that had been “adversely affected” by prior law “as if” they had been originally filed under the new §1605A(c) - And in §1083(c)(3), it provided a time-limited opportunity for plaintiffs to file new actions “arising out of the same act or incident” as an earlier action and claim §1605A’s benefits - Following these amendments, the original plaintiffs amended their complaint to include the new federal cause of action under §1605A(c), and hundreds of others filed new, similar claims -  District court entered judgment for the plaintiffs and awarded approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages – CA said plaintiffs not entitled to punitive damages because Congress had included no statement in NDAA §1083 clearly authorizing punitive damages for preenactment conduct – They appealed to SC – It said plaintiffs in a federal cause of action under §1605A(c) may seek punitive damages for preenactment conduct - Even assuming (without granting) that Sudan may claim the benefit of the presumption of prospectivity—the assumption that Congress means its legislation to apply only to future conduct, Congress here was as clear as it could have been when it expressly authorized punitive damages under §1605A(c) and explicitly made that new cause of action available to remedy certain past acts of terrorism – Appeal allowed.

Last updated on the 21st May 2020