Month: June 2015

The Court of Appeal decision in Google Inc v Vidal-Hall [2015] EWCA Civ 311 (27 March 2015) (Dyson MR and Sharp LJ in a joint judgment; McFarlane LJ concurring), affirming the judgment of Tugendhat J (at [2014] EWHC 13 (QB) (16 January 2014)), is a very important decision on damages for invasion of privacy, and it raises significant questions about the correctness of of Feeney J’s reasoning in the earlier Irish case of Collins v FBD Insurance plc [2013] IEHC 137 (14 March 2013).

The three claimants alleged that the defendant had tracked and collated private information about the their internet usage via their Apple Safari browser without their knowledge and consent, contrary to the defendant’s publicly stated position that such activity could not be conducted for Safari users unless they had expressly allowed it to happen (much of the technical and regulatory background is set out here by Alexander Hanff; and Judith Vidal-Hall explains here and here how she came to take on the giant that is Google). The Court held that the claimants could maintain claims against the defendant, in tort for misuse of private information, and for compensation pursuant section 13 of the Data Protection Act, 1998. The Court held that, as a matter of EU law, the section 13 claim must include compensation for for distress (non-pecuniary loss, or general damages) and must not be confined to compensation for actual damage (pecuniary loss, or special damages). However, whilst section 13(1) provides a claim for “compensation” for “damage” for contravention of the Act, section 13(2) provides more limited claims for “compensation” for “distress” (where the claimant “also suffers damage” (s13(2)(a); emphasis added), and where the contravention relates to processing of data for “special purposes” (s13(2)(b)). Nevertheless, to the extent that 13(2) put limits on claims for compensation for distress, it was dis-applied as inconsistent with the Data Protection Directive (Directive 95/46/EC).

Google has applied for permission to appeal to the Supreme Court, and a decision on the application is awaited. Meanwhile, an analysis of the decision of the Court of Appeal is instructive in the context of the decision of Feeney J in Collins, especially as regards Article 23(1) of the Directive. (more…)

Institutions such as cathedrals and colleges are often overseen by Visitors. The recent decision of Horner J in In re CS [2015] NIQB 36 (30 April 2015) has reaffirmed many basic principles relating to the jurisdiction of University Visitors.

In Ireland, section 19 of the Universities Act, 1997 (also here) provides for Visitors for Irish universities. Hence, for example, in Trinity, the Visitors hear internal appeals against decisions of the Board and other bodies in College. If there is no such decision, the Visitors have no jurisdiction on this ground (Kelly v TCD [2007] IESC 61 (14 December 2007)). And, if they have jurisdiction, the hearing is not a review but a full appeal where they will look afresh at the matters in dispute and form their own views (R v Visitors to the Inns of Court, ex p Calder & Persaud [1994] QB 1, [1993] 2 All ER 876).

The exclusive jurisdiction of Visitors, rather than the courts, to make such internal determinations has been established by an unvarying line of authority from Philips v Bury (1694) Shower PC 35, (1694) 1 ER 24, [1694] EngR 11 (1 January 1694) (pdf) and Bracken v Visitors of the College of William & Mary 3 Call (7 Va) 573 (1790) [noted Bridge 20 Wm & Mary L Rev 415 (1979)], to Thomas v University of Bradford [1987] AC 795 (HL) (.doc) and R v Visitor of the University of Hull, ex p Page [1993] AC 682, [1992] UKHL 12 (03 December 1992). They are not bound to adopt any particular form of procedure, and their decisions are final (R (Varma) v HRH Duke Of Kent [2004] EWHC 1705 (Admin) (16 July 2004)).

In 2004, Part 2 of the Higher Education Act 2004 transferred the jurisdiction of Visitors over the grievances of students in England and Wales to the Office of the Independent Adjudicator (OIA). However, this does not apply in Northern Ireland, and a case involving the Visitor to Queens University Belfast (QUB) has recently had occasion to determine the nature of the Visitors’ jurisdiction.

In the UK, section 104 of the Sexual Offences Act 2003 permits a court to make a Sexual Offences Prevention Order (SOPO) for the purpose of protecting the public or any particular members of the public from serious sexual harm from the defendant in respect of whom the SOPO is made. In In re CS [2015] NIQB 36 (30 April 2015), the applicant had been convicted of five counts relating to indecent images of children and was made subject to a 5-year SOPO. QUB therefore withdrew him from the university for the duration of the SOPO, after which period he could apply to QUB for re-admission. He sought judicial review of the university’s decision, on the grounds that the passing of the Human Rights Act 1998 effected a sea change in the power of the courts to review decisions of the Visitors. A similar argument as to the effect of the Convention on university decisions, in the context of an academic rather than a disciplinary decision, had failed in In re Croskery [2010] NIQB 129 (noted here)), and it was unsurprising that the claim in CS also failed. It did so for two reasons. First, the challenge was premature, as all of the internal remedies had not been exhausted (compare Kelly v TCD (above)). Second, Horner J reaffirmed the exclusive jurisdiction of Visitors in such circumstances, subject to four exceptions, by which judicial review could be available when Visitors exceed jurisdiction, abuse powers, breach the principles of natural justice, or fail to protect the rights a party enjoys under the European Convention of Human Rights. And none of these exceptions – in particular, breach of the ECHR – was made out.

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I recently came across a special issue of the ELTE Law Journal to celebrate the tenth anniversary of Hungary’s accession to the EU. The journal is published by the Faculty of Law and Political Sciences in Hungary’s oldest university, Eötvös Loránd University (ELTE) in Budapest, and one article in the issue particularly caught my eye (with added links):

Bénédicte Fauvarque-Cosson “The French Contract Law Reform in a European Context” (2014) ELTE Law Journal 59

I Introductory Remarks on the Development of the Law in Europe
… The civil and commercial law of each Member State is built upon three pillars, the national legal systems, EU law and the ECHR. While our national experiences influence one another, the law of the EU is built upon these reciprocal influences. In turn, our national legal systems are influenced by EU law. …

As European scholars, our role is primarily to train students to think comparatively, in order to build a common legal culture all over Europe … As European lawyers in the 21st century, our mission goes beyond comparative teaching. … Legal scholarship has played its role as a guide to the European legislator. … The same phenomenon may be observed in those of our countries where the recodification of important parts of the law is envisaged. This notably occurs in France as regard contract law, a key subject for comparatists and European scholars.

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