Lord Walker of Gestingthorpe (1938–2023) ✎

The former Supreme Court Justice Lord Walker has recently passed away.

Below are some interesting extracts from his obituary in the DT. 

A few years ago, I enjoyed watching his lecture on "Cause & Effect in Commercial Law" as the 25th lecture as part of the Sultan Azlan Shah Law Lectures.

For me, as a law student, some of his judgments which stand out are:

• Kernott v Jones [2011] - the beneficial entitlement of a 'family home' of an unmarried couple under constructive trust.
• Pitt v Holt [2013] - Mentioned below in the article. The issue was the jurisdiction of the court to set aside a voluntary disposition on the grounds of mistake. 
• Sempra Metals Ltd v HMRC [2007] - A v. important case in unjust enrichment. His Lordship preferred the approach (in my view, mistaken) to extend the court's equitable jurisdiction to awards of compound interest to achieve "complete restitution" thereby reversing the unjust enrichment for the principal and the interest. (Later, comprehensively overturned, by a differently constituted court in Prudential Assurance v HMRC [2018]).
• FII Group Litigation v HMRC [2012] - Among other things, whether a demand from the public authority could trigger an unjust enrichment claim under the Woolwich principle. His lordship's view was that it was about the perceived obligation to pay, rather than an implicit demand.
• BNY Corporate Trustees v Eurosail [2013] - Part of the Lehman Brothers fallout. This appeal concerned the correct test for "balance-sheet" insolvency in corporate insolvency.
• Pell Frischmann Engineering v Bow Valley Iran [2009] - Lord Walker (sitting on the Privy Council) laid down guidance on how Wrotham Park damages (or negotiated damages) should be assessed and awarded. It stands apart from later Supreme Court jurisprudence because His Lordship held that it was not a prerequisite to their being awarded for the claimant to have applied for an injunction (as per Lord Cairn's Act).
• Mobil Cerro v Petroleos [2008] - In this case, Robert Walker J waived the normal subject-matter jurisdiction (for international fraud) in the granting of freezing injunctions. It's a landmark case that expanded the jurisdiction of the court for this private international remedy.
• Highland Crusader v Deutsche Bank AG [2009] - Lord Walker (in the Court of Appeal) clarified important jurisprudence about the ambit of anti-suit injunctions following commencement of proceedings in violation of jurisdiction agreements.

The Daily Telegraph:

Lord Walker of Gestingthorpe, who has died aged 85, was an outstanding Law Lord and Justice of the Supreme Court, and previously the doyen of the Chancery Bar, second to none in the field of private client trusts and taxation work.

Called to the Bar by Lincoln’s Inn in 1960, he became a tenant at 17 Old Buildings, and soon became highly regarded as an equity barrister with a thriving estate duty practice, dealing with the implications of the Variation of Trusts Act (1958).

His advice and drafting stood out for clarity, precision and quiet persuasiveness. His advocacy displayed the same qualities, meaning that judges paid attention to his submissions in a way that they might not with more long-winded counsel. 

Walker became a Lord of Appeal in Ordinary (Law Lord) in 2002, and a Justice of the Supreme Court when it was established in 2009.

Among the appeal cases at which he presided during his final years as a judge was Pitt v Holt (2013), where his judgment restricting the scope of the ruling in the case of Hastings-Bass (which had allowed the court to set aside decisions made by trustees if the decisions had unintended consequences), so that it applied only if the trustees had committed a breach of fiduciary duty, was widely held to be a tour de force.

With his keen moral sense, astonishing mastery of detail and ability always to see the bigger picture, Walker was an exemplary judge, adept at identifying what should be the right result in each case and then finding ways of arriving at it without compromising legal principles.

He regularly surprised both judicial colleagues and counsel with his ability to master areas of the law distinct from his original field of expertise, and in numerous judgments he contributed greatly to the development of the law across all areas. Renowned for the kind welcome he gave to new members of the Supreme Court, he was also an exceptionally good advocacy teacher at Lincoln’s Inn, where he served as Treasurer in 2010.

A brief note on the Shamima Begum appeal ✎

This is a brief note on the Shamima Begum appeal currently being heard in the Court of Appeal.

I briefly discuss the recent & notable Supreme Court judgment (which I agree with) and then turn to the present appeal. I end with some of my thoughts. When the Court of Appeal gives its ruling, I'd like to compare.

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The 2021 Supreme Court decision

The original Supreme Court decision concerned the validity of the removal of Ms Begum's citizenship when she decided to leave the UK to join Isis in Syria. There is a general rule from treaty law that you cannot make someone stateless; and, in this case, Ms Begum would not be, as a matter of fact, stateless.

The crux of the SC's reasoning is that the deprivation of British citizenship – notwithstanding the above qualification – is a classic issue of national security. In our constitution, this falls under the prerogative of Parliament and, in turn, the discretion accorded by it to its governments' ministers. Foreign policy and national security have been areas of policy where the courts have traditionally been v. reluctant (on the grounds of constitutional legitimacy and authority) to disturb the decisions of ministers. Safety of the public is a legitimate policy area to which ministers must be accorded a latitude (and to which they are answerable to Parliament).

A similar case that, I think, is useful is R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60. It concerned a challenge to the decision to refuse to allow Ms Maryam Rajavi – a lady with close links to a proscribed terrorist group – to enter the UK. In that case, Lord Sumption's dictum was instructive: 

We have no experience and no material which could justify us in rejecting the Foreign Office assessment in favour of a more optimistic assessment of our own. To do so would not only usurp the proper function of the Secretary of State. It would be contrary to long established principle which this court has repeatedly and recently reaffirmed. It would step beyond the proper function of a court of review. And it would involve rejecting by far the strongest and best qualified evidence before us. In my opinion it would be a wholly inappropriate course for us to take

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The present appeal

The present appeal pivots the argument in a different direction. 

Instead of challenging what the former Home Secretary did - it challenges what he didn't do.

The argument is that Mr Javid breached a human rights obligation; namely, to determine whether Ms Begum was a victim of trafficking before stripping her of her British citizenship. Mr Javid is supposed to have investigated whether the state had failed in its duty to protect Ms Begum when she travelled to Syria in 2015. This, in turn, rendered the decision to revoke her citizenship unlawful.

The original judgment was delivered by Mr Justice Jay of the Special Immigration Appeals Commission. The most important parts of the judgment are:

1. From para. 248–261, the following two conclusions were drawn.
1. Parliament did not expressly require - as a mandatory consideration - that the Home Secretary take into account credible suspicion of trafficking.
2. The Home Secretary's power is broadly defined and its primary focuses is national security and not grooming/trafficking.
2. The court could not substitute its own view on whether Ms Begum was trafficked for the Home Secretary's view that she had travelled voluntarily into Syria to join Isis, which was integral part of the overall national security assessment.
3. The Commission did think that there was credible suspicion that Ms Begum had been trafficked.

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My thoughts

As a matter of law, I find Jay J's logic quite persuasive and I agree with him.

Firstly, Section 40 of the British Nationality Act 1981 is indeed v. broadly defined and focuses on a single test (namely: "conducive to the public good"). I have highlighted the relevant section. This is done deliberately and affords the minister a broad discretion to take account of a myriad factors in the decision-making process. It does not make trafficking a qualifying condition (which is essentially what Samantha Knights KC is trying to argue in the Court of Appeal - see article below).

Secondly, the framing of section 40 in such a way as to make deprivation of citizenship conditional on the trafficking analysis fails, as Jay J argued, to take account of "questions of fact and degree" (para. 257). Ms Begum could be, in some respects, trafficked - but, in other respects, she actively and knowingly went to Syria to join Isis. It's not a black-and-white issue, as Sir James Eadie argued. And once we make trafficking an all-or-nothing assessment; it seems to me that the approach rapidly veers away from the clear intent of Parliament in the statute. (Indeed, as established in Begum and Carlile (and Bank Mellat), not all rights have equal weight; and the executive are not necessarily required to treat all considerations to the same standard.)

Thirdly, as established in Carlile, the courts are not apt to substitute a decision made by its constitutional maker for one which the court finds preferable. The courts do not have the contingent expertise to enable the required assessment of risks vis-a-vis national security and public safety. Upon on what basis can the court rule that the Mr Javid came to the wrong decision?

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From today's paper:

Planet Earth III, BBC 1 – amazing nature documentary ✎

One of my favourite hobbies (especially when I am not feeling well) is to watch nature documentaries.

On Sunday, I watched David Attenborough's latest installation of his breathtaking nature series 'Planet Earth'. This first episode was on coasts.

The wildlife photography is incredible. As Attenborough explained, Planet Earth III focuses – not merely on nature's majesty but – on how it has adapted to the world because of human activity.

It's full of dazzling Hollywood-style visuals, with overhead shots of beautiful flapping flamingos and their hatchlings that struggle to survive in the freezing rains. 

Highly recommended.

9/10.

Below are some amazing print-screens I took while watching.  Enjoy.

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Hungry lions on Namibia's Skeleton Coast (hunting birds at night)

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Caribbean flamingos living in Mexico (and the fragile lives of their young)

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Seals chasing a Great White away

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A young Attenborough visiting Raine Island when he was 31

The moral absurdity of the pro-Palestinian protests (supporting Hamas) ✎

There have been thousands of people in ‘pro-Palestinian protests’ in London this weekend. 

According to the BBC: 

The demonstration was organised by several groups who are calling on the British and Welsh governments to insist on an immediate ceasefire in Gaza and for “full humanitarian aid” to be sent in.
Maggie Morgan, from the Palestinian Solidarity Campaign Cardiff, said: “We are taking to the streets as a show of solidarity to the people of Gaza, to show our support for them, but also to make the government listen, and say "not in our name, we’re not having this.”

I am writing this post as a brief riposte to the protest’s underlying arguments. These so-called “pro-Palestinian” protests are ultimately, in reality, misguided (or deliberate) support for Hamas.

For me, I have been v. shocked & disturbed by the British reaction to the horrific massacres in Israel. I have already written about my anxiety with the general tone of equivocation against calling the Hamas attack on 7th October as ‘terrorism’; and the media bias - made obvious at the al-Ahli hospital. With regards to these protests, I think a huge part of them is driven by a nasty latent antisemitism. To me, I can’t think of another serious explanation. It’s shocking to me how so many people can take to the streets to criticize Israel – and yet nothing to say about what Hamas has done. The actions of Hamas were equivalent to the SS Einsatzgruppen - children thrown on a pile and set on fire; and kids chased with machine guns at a concert!

Of course scenes of civilian suffering in Gaza is distressing. They rightly deserve our sympathy; and, as I wrote in an earlier post, it behoves Israel to conduct its warfare in line with the rules of war. However, we should not blind ourselves to the underlying reality. 

My two overarching arguments; firstly, Israel can no longer tolerate such a potent threat on its border. Its primordial obligation is to protect its own Jewish and Israeli population, perhaps even more than any other state on Earth (the Holocaust still within living memory). Secondly, it is the deranged leaders of Hamas that have wrought this destruction and death to Gazans. 

With that in mind, I should like to rebut the following arguments: 

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Argument 1: “show of solidarity to the people of Gaza”

    The people of Gaza are being hurt by Hamas

1. Hamas is sponsored by the Ayatollah of Iran. It is not an expression of Palestinian self-determination. The regime’s oppression can be seen in the many Iranian women who are currently risking their lives to defy that regime’s Orwellian oppression.
2. The endless stream of footage of human suffering from within Gaza is part of its propaganda machine. This is done to inflame and multiply its legion of useful idiots in Western democracies. Every death is a valuable contribution to its cynical war effort.
3. The Geneva Convention draws a distinction between military officers and non-combatants who don’t wear a uniform. The rules of war have always respected the need for military combatants to be properly identified in order to protect the civilian populations. As such, soldiers caught wearing the enemy uniform - if caught by enemy forces - can be subject to execution. This happened in the Battle of the Bulge when German officers attempted to infiltrate Allied lines by dressing up as US Army officers. Because Hamas ignores this rule, it deliberately puts the Gazan citizenry - not only at risk, but in the direct line of Israeli force.
4. Hamas leader, Ismail Haniyeh, and his children are living in wealth and luxury in Qatar.
5. This week Hamas blocked civilians from fleeing the zone of conflict - as part of its multifaceted practice of using human shields.

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Argument 2: “full humanitarian aid should be sent in”

1. The BBC - and various media - have discussed Israel’s cutting off the water, electricity, gas, food and medicine to Gaza; but scarcely mention that Israel has constantly maintained that it would reinstate all supply lines – if Hamas frees the Israeli hostages.
2. For Hamas, keeping the 210 kidnapped hostages is more important than the well-being of ‘its’ own people.

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Argument 3: “Israel as an occupier”

Israel is not an occupier by choice – it is being blamed for defending itself.

Since its birth in 1948, its Arab neighbours have sought to destroy it. Israel has prevailed and acquired - with each war - territory to administer. Following Israeli withdrawal, as in Gaza in 2005, it was attacked with rockets by terrorists who are committed to its destruction and (as we recently saw) the butchering of Israeli citizens. When Israel offered 94% of the West Bank to the PLO, as a separate state; Yasser Arafat declined it. Today, it is again being blamed for defending itself. It was soon after Israel’s withdrawal from Gaza that the Palestinians elected Hamas.

Without the Iron-dome defence system, Hamas’s shower of rockets of 7th October would have levelled Israel. Its enemies seriously mean its destruction. Israel cannot entertain any ceasefire with these terrorists (and their Iranian offshoot sister organizations) - it’s security demands that they be rooted out.

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According to the police, since the pogrom of the 7th, there has been an enormous rise in antisemitic incidents in England compared to previous years.

If you’re a Brit - please consider signing The October Declaration (britishfriendsofisrael.org) to show support for our Jewish friends in England.

Sir Nicholas Stadlen (1950–2023) ✎

A few weeks back, I came across an obituary in the paper for Sir Nicholas Stadlen which really amazed me. (Can be read on Daily Telegraph).

He was a v. successful barrister and High Court judge; but he also had an extraordinary formative stint in the United States. He was around when Martin Luther King was assassinated and also worked for Senator McCarthy. 

I especially enjoyed reading about his advocacy at the Bar. I had already heard of the late Gordon Pollock QC (from two different barristers) and he seemed like another amazing personality at the Bar.

He was called to the Bar by Inner Temple in 1976 and obtained a tenancy in Tom Bingham’s chambers at Fountain Court, the leading commercial set previously headed by Leslie Scarman and Melford Stevenson. Stadlen’s pupil master there was Denis Henry, later a Court of Appeal judge.

Stadlen took Silk in 1991, and seven years later featured in a newspaper list of QCs reported to have earned more than £1 million gross during the previous year.

For his junior counsel, it could be arduous getting him ready for court as he liked to leave no stone unturned. Several days might be spent over a single paragraph in a skeleton argument. However, his team relished the moment they unleashed him on the court, and – even more so – on the other side. Stadlen was at his best when he departed from any prepared script and went into free flow, often in response to a question from the judge. His unchained advocacy was a sight to behold and, with his wonderfully mellifluous speaking voice, mesmerising to listen to. 

Nick Stadlen’s keen intellect and sense of justice were allied to immense powers of concentration and a seemingly inexhaustible capacity for case preparation, the often chaotic state of his room belying his complete mastery of any brief by the time it came to court, affording him apparent foresight of every conceivable counter-argument to his submissions and enabling him to perform fearlessly and persuasively on his feet with barely a glance at his papers.

His advocacy was never more thorough and effective than during his 119-day marathon speech in 2004/05 at the Royal Courts of Justice, opening the case for the defence on behalf of the Bank of England against a compensation claim brought by the liquidators of the collapsed bank BCCI.

It was the longest speech in British legal history, easily beating the previous record set by his opponent in the same case, Gordon Pollock QC, who had spent 79 days setting out the case of the liquidators.

When Pollock eventually concluded his opening remarks, Stadlen rose to his feet in July 2004 to address the bench: “After six months,” he began, “the empire strikes back.”

During Pollock’s opening, there had been a real sense that the Bank of England and 22 of its employees might be in trouble, but by the time Stadlen finished his epic reply in May 2005, the dismissal of BCCI’s claim seemed inevitable.

After the plaintiffs eventually conceded defeat that December, the judge Mr Justice Tomlinson rebuked their counsel for his “sustained rudeness” during the case to Stadlen, to whom, by contrast, he paid abundant tribute: “Your address to me was a tour de force, if I may say so, and no doubt it is something for which your clients are deeply grateful, but I am deeply grateful to you for your very great assistance given to me throughout this case.” The judge subsequently granted Stadlen a £100 million costs order.

I also found a YouTube video of Sir Stadlen discussing Nelson Mandela and the anti-apartheid movement.

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