Family proceedings
Re D (children) (leave to apply to revoke placement orders); A mother v A London Borough and others [2022] EWCA Civ 299, [2022] All ER (D) 44 (Mar)
The Court of Appeal, Civil Division, allowed the appellant mother’s appeal against the decision of the Family Court that refused to grant the mother leave under s 24(2)(a) of the Adoption and Children Act 2002 to apply to revoke the placement orders authorising the local authority to place her two children for adoption. The children had suffered neglect and emotional harm due to the mother’s alcohol abuse. The court held, among other things, that (i) in considering whether there had been a change of circumstances sufficient to open the door to the exercise of the discretion to allow the mother to apply to revoke the placement order, the recorder set the bar too high. The recorder failed to carry out a sufficiently thorough analysis of the mother’s professed change of circumstances; and (ii) when considering whether the mother’s prospects of success were more than merely fanciful, the recorder should have analysed the mother’s evidence by reference to the doctor’s opinion. Had he done so, he would have concluded that the evidence before the court, was more indicative of progress than of stasis. The court further held that it was in the children’s interests to consider again the options for their future care.
Immigration
QH (Afghanistan) v Secretary of State for the Home Department [2022] EWCA Civ 421, [2022] All ER (D) 13 (Apr)
The Court of Appeal, Civil Division, allowed the appellant Afghan refugee’s appeal against the Upper Tribunal’s (Immigration and Asylum Chamber) decision that a declaration had been just satisfaction for the breach of the appellant’s rights under art 8 of the European Convention on Human rights and that he had not been entitled to damages, on the basis that the defendant Secretary of State’s breach of art 27 of the Dublin III Regulation (EC) No 604/2013 had not been sufficiently serious. As to the former, the court held that the only decision that had been open to the UT was that an award of damages was necessary to afford just satisfaction to the appellant. The UT’s focus on whether the appellant’s removal to Germany had interfered with his family life rights was an ‘arid distraction’ when dealing with a very distressed child who had fled Afghanistan. The appellant’s gradually developing relationships with his uncle and other support networks in the UK constituted a private life to which very significant respect was due.
Medical Treatment
Clarke v Kalecinski and others [2022] EWHC 488 (QB), [2022] All ER (D) 32 (Mar)
The Queen’s Bench Division allowed the claim for damages, in relation to the personal injury that the claimant had sustained as a result of negligent cosmetic surgery and post-operative care, against the first to third defendants, namely, the Polish surgeon who had performed the procedures, the Polish clinic at which they had taken place and the insurer of that clinic. The court held that: (i) while the first and second defendants were separate entities, they had jointly entered into a contract with the claimant which had incorporated the representations made on the second defendant’s website with regards to the first defendant’s General Medical Council (GMC) registration; (ii) absent any written contact with an express choice of law clause, the contract had been governed by English law pursuant to art 6(1) of Regulation (EC) No 593/2008; (iii) pursuant to arts 415, 355 and 441(1) of the Polish Civil Code, the claimant also had a valid claim in negligence; and (iv) the standard of care expected had been that of a UK and GMC registered surgeon, given that the contract had included a term to that effect, rather than the local standard of care as in cases such as Wilson v Best Travel Ltd [1993] 1 All ER 353.
Personal injuries
Andrews and others v Kronospan Ltd [2022] EWHC 479 (QB), [2022] All ER (D) 58 (Mar)
The Queen’s Bench Division allowed the defendant’s application to revoke the permission granted to the claimants to rely on the expert evidence of Dr G in a group litigation. The claimants’ claim alleged that the defendant was liable to them in public or private nuisance by reason of dust, noise or odour emissions, as a result of the management or operation of the defendant’s wood processing and wood product manufacturing plant in Wrexham. Various case management orders were made and no trial date had been set. The defendant became aware that there had been contact between Dr G and the claimants’ solicitors during the period of joint statement discussions, and that those communications had consisted of Dr G providing the claimants’ solicitors with various iterations of the working draft of the joint statement. The court held that the serious transgressions by the claimants’ solicitors and Dr G had been such that it had no confidence in Dr G’s ability to act in accordance with his obligations as an expert witness. The basis on which the claimants had received permission to rely on Dr G as an expert witness, namely his duties under CPR 35.3 and CPR PD 35 paras 2.1 and 2.2, had been undermined. Accordingly, it was appropriate, and not disproportionate, to revoke the claimants’ permission to rely on his evidence.
