Declaration of the Committee of Ministers of the Council of Europe on “Libel Tourism” & Freedom of Expression

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| Defamation, Freedom of Expression, Libel tourism

From the Declaration of the Committee of Ministers on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation, “Libel Tourism”, to Ensure Freedom of Expression, adopted by the Committee of Ministers on 4 July 2012 at the 1147th meeting of the Ministers’ Deputies:

13…. the Committee of Ministers:

– alerts member States to the fact that libel tourism constitutes a serious threat to the freedom of expression and information;

– acknowledges the necessity to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury, and to align national law provisions with the case law of the Court;

– undertakes to pursue further standard-setting work with a view to providing guidance to member States.

via wcd.coe.int
…

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Messing about in boats: Restitution from the Executive – II

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| Restitution

Rossaveel Harbour

In the first stage of Island Ferries Teoranta v Minister for Communications, Cooke J held that harbour charges imposed on the plaintiff in Rossaveel Harbour (pictured above) in Galway Bay by the defendant were ultra vires, and that the detention of the plaintiff’s vessel, the MV Ceol na Farraige (the “music of the sea”), to seek to compel payment of the charges, was a trespass (see [2011] IEHC 388 (18 October 2011)). In the second stage of the proceedings, Cooke J awarded the plaintiffs a total of €92,243 in compensatory damages (see [2012] IEHC 256 (26 June 2012)). In yesterday’s post, I considered what a restitutionary claim at Irish law might have looked like had the case evolved slightly differently. In this post, in the context of the decision of the UK Supreme Court in the FII case (Test Claimants in the Franked Investment Income Group Litigation v Inland Revenue [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012)) and the decision of the Court of Justice of the European Union in the Littlewoods case (Case C-591/10 Littlewoods Retail Ltd v Her Majesty’s Commissioners for Revenue and Customs [2010] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), I want to consider what that claim might have looked like had EU principles been added to the mix.…

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Messing about in boats: Restitution from the Executive – I

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| Restitution, The Rule of Law

EH Shepherd's illustration of Ratty and Mole in a boat on the river, from Kenneth Grahame's The Wind in the Willows, via the Bodleian Library

“Believe me, my young friend, there is nothing – absolutely nothing –
half so much worth doing as simply messing about in boats”.

Ratty to Mole (above), in Kenneth Grahame‘s
The Wind in the Willows (1908) chapter 1.

In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70 (HL) (pdf), the House of Lords held that taxes and other imposts unlawfully exacted by the State are recoverable by the taxpayer as of right, and that this duty to make restitution carries with it the obligation to pay interest on the sums unlawfully exacted. Three recent cases raise very interesting issues relating to this principle, and I want to discuss them in two posts. The first case is the decision of Cooke J in Island Ferries Teoranta v Minister for Communications [2011] IEHC 388 (18 October 2011)) and [2012] IEHC 256 (26 June 2012), and I will discuss it in its own terms in this post. The other two cases are the decision of the UK Supreme Court in the FII case (Test Claimants in the Franked Investment Income Group Litigation v Inland Revenue [2012] 2 WLR 1149, [2012] UKSC 19 (23 May 2012)) and the decision of the Court of Justice of the European Union in the Littlewoods case (Case C-591/10 Littlewoods Retail Ltd v Her Majesty’s Commissioners for Revenue and Customs [2012] ECR-I nyr, [2012] EUECJ C-591/10 (19 July 2012)), and I will discuss Island Ferries Teoranta in the light of those decisions in tomorrow’s post.…

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McKillen’s claims against the the Barclay Brothers are dismissed

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| Open Justice

In McKillen v Misland (Cyprus) Investments Ltd [2012] EWHC 2343 (Ch) (10 August 2012) Mr Justice David Richards dismissed the claims brought by Patrick McKillen.

Patrick McKillen is the owner of a 36.2% shareholding in Coroin Limited (the Company) which owns and manages three hotels in London – Claridge’s, The Connaught and The Berkeley. Of the original members, Mr McKillen and Derek Quinlan (with 35.4%) remain. In January 2011, a company associated with Sir David and Sir Frederick Barclay bought Misland (Cyprus) Investments Limited (Misland) which then owned 24.7% and now owns 28.36%

Mr McKillen’s proceedings concern, principally, steps taken by Sir David and Sir Frederick Barclay and by companies associated with them (the Barclay interests) during 2011 to obtain control of the Company. Mr McKillen alleges that these steps involved breaches of an agreement among the shareholders and breaches of duty by directors of the Company appointed by the Barclay interests.

Mr McKillen commenced two related sets of proceedings. In one, he sought orders under sections 994-996 of the Companies Act 2006 on the grounds that the affairs of the Company had been conducted in a manner which was unfairly prejudicial to his interests as a shareholder. In the other, he sought damages in tort for conspiracy to cause loss by unlawful means and for inducing breaches of contract.…

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Beatson LJ: congratulations!

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| General

Jack Beatson, via the TelegraphThis post is just a quick note to congratulate Jack Beatson (pictured left) on his elevation to the Court of Appeal in London. Before he became a judge, Jack was Rouse Ball Professor of English Law at Cambridge and a Fellow of St John’s College, and in that capacity he supervised my PhD thesis. (Adopting a line I saw elsewhere, we both survived).

I’m delighted to learn today that, in the formal wording of such announcements, the Queen has been pleased to approve the appointment of The Honourable Mr Justice Beatson as a Lord Justice of Appeal to fill a forthcoming vacancy in the Court of Appeal. In Debrett’s, he lists his recreations as “trying to relax”. I fear he might not have much time for that in his new role.

Congratulations, Jack!…

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It’s safe to make jokes on twitter again: @pauljchambers wins #twitterjoketrial appeal

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| Freedom of Expression

Twitter logo, via Twitter websiteIn my previous post, I discussed what would happen if your airline made a mistake with your online booking. Let’s assume that you successfully booked your flight, and have turned up to the airport, only to find that your flight is cancelled. What would you do? Well, on 6 January 2010, it happened to Paul Chambers, and he sent a frustrated tweet:

Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!

I could have done as much myself (I am Spartacus). Unfortunately, Chambers found himself in very hot water: he was convicted of sending by a public electronic communication network a message of a “menacing character” contrary to section 127(1)(a) and (3) of the Communications Act 2003 (the Act); he was fined £385 and ordered to pay £600 costs. Fortunately for Chambers, there was eventually a happy ending: his appeal against this conviction was allowed today.

Congratulations to @pauljchambers and his fiancée @crazycolours, and kudos to his legal team, @DavidAllenGreen, @John_Cooper_QC, @sarahprz82 and @major_clanger. The case has been newsworthy online, especially on twitter at the hashtag #twitterjoketrial; and the successful of the appeal has been widely reported.…

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When an airline website makes a mistaken offer, do terms and conditions apply?

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| Contract, Mistaken offers

Image of Hong Kong by Paul Hilton/Bloomberg via Chicago Tribune/LA TimesWhen a website makes a mistaken offer which customers then accept, contracts may very well result. However, that is only a small part of the story. The mistake may mean that there really is no contract. Or the website’s terms and conditions may protect them (though there are some situations in which such terms might not be enforceable).

This kind of mistake is a pretty regular occurrence, and it happened to United Airlines over the weekend. Via the Gulliver blog on the Economist website, I learn of the following story in the Chicago Tribune:

United Airlines error sells Hong Kong flights for 4 miles

United Airlines customers with reward miles were able to book tickets over the weekend to Hong Kong for only four miles, plus taxes and fees, because of a programing error, according to the airline.

A round-trip flight from Los Angeles to Hong Kong typically starts around $1,800 or 60,000 reward miles under the MileagePlus reward program.

But because of a programing error, some United passengers who booked flights to, from or through Hong Kong were charged only four miles plus taxes and fees, which amount to about $35. …

United Airlines have cancelled the tickets, though it is not clear to me that this is permitted in Rule 5 of United’s Contract of Carriage (and it may run afoul of the US Department of Transportation rules).…

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