Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Bench of Lady Hale, President and Lord Reed, Deputy President and Lord Carnwath, Lord Llyoyd-Jones and Lady Arden allowed an appeal filed against the Judgment of Northern Ireland Court of Appeal concerning a stay granted on the proceedings for a claim of damages under Section 8 of the Human Rights Act, 1998.

The appellant’s son, Pearse Jordan, was shot and killed by a member of Royal Ulster Constabulary in November, 1992. His father, Hugh Jordan, made an application to the European Court of Human Rights complaining that the failure to carry out a prompt and effective investigation into his son’s death. He sought a declaration that the Coroner and Police Service of Northern  Ireland had been responsible for delay in the commencement of the inquest in violation of his rights under Article 2 of the European Convention on Human Rights together with awards of damages under Article 8 of the Human Rights Act. Subsequently, the proceedings were taken over by his wife, the appellant, following his deteriorating health.

The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what has come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment, Hughes’ Application for Judicial Review, In re, [2018] NIQB 30, Sir Paul Girvan found that there was a systematic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved.

The Court Appeal, after considering the provisions of the Human Rights Act, laid down a general rule that claims of the present kind could not be brought before the conclusion of an inquest, and that any claims which had been brought before that stage should be stayed until then. This was, however, clarified by the Court of Appeal in a subsequent decision in McCord’s Application for Judicial review, In re, unreported, 18-1-2019, which judgment appears to confine the general rule prescribed in the present case to those cases where the only outstanding issue is damages and where an inquest can be expected to begin within the near future, if not already underway.

The present appeal was brought against the Judgment of the Court of Appeal staying the proceedings brought by Hugh Jordan until the completion of inquest. The Supreme Court was of the view that the appeal ought to be allowed. It was discussed that a stay on proceedings can be ordered in appropriate circumstances even n cases brought by persons claiming a violation of their Convention rights, however, regard must be had to three important aspects of the Convention rights:

(a) Rights that are practical and effective: Convention rights must be applied in a way which renders them practical and effective, not theoretical and illusory. The effectiveness of the right under article 2 to have an investigation into a death begin promptly and proceed with reasonable expedition could be gravely weakened if there were a general practice of staying proceedings seeking to secure the prompt holding of an inquest, typically by obtaining a mandatory order or a declaration.

(b) Determination within a reasonable time: The staying of proceedings will be unlawful if it results in a breach of the “reasonable time” guarantee in Article 6 of the Convention. That would be a real possibility in some cases if stays until after the completion of an inquest were ordered as a general rule. That right under Article 6 is distinct from Article 2.

(c) Proportionality of restrictions on access to the Courts: Since a stay of proceedings prevents a claim from being pursued so long as it remains in place, it engages another aspect of Article 6 of the Convention, namely the guarantee of an effective right of access to a court. That exercise requires consideration of the circumstances of the individual case before the court.

The Supreme Court observed: “There is no doubt that there may be cases in which it is proportionate to impose a stay on a claim for damages in a legacy case, weighing the relevant factors for and against it. There is equally no doubt that there may be cases in which, weighing those factors, a stay is not proportionate. Since the relevant factors can differ in nature and weight from one case to another, it follows that courts should carry out the necessary balancing exercise in the individual case. A virtually automatic rule requiring all such claims to be stayed until after the inquest, regardless of their individual circumstances, would not comply with that requirement, and in addition, as previously explained, would result in breaches of the reasonable time requirement of Article 6.”

It was held that the decision of the Court of Appeal was not consistent with the foregoing principles. It did not involve an assessment of proportionality. It was also stated that it is uncertain whether the court would have ordered the stay if such an assessment had been conducted, particularly if Hugh Jordan’s ill health had been drawn to its attention. In such circumstances, the appeal was allowed. [Hugh Jordan’s Application for Judicial Review, In re, [2019] UKSC 9, dated 06-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. dismissed a second appeal filed against the order made in first appeal wherein it was held that the plaintiffs were not entitled to claim damages for wrongful possession of rented premises by the defendant.

The plaintiffs were owners of the subject property which was let out to Nizam Government which handed it over to Zila Parishad. In the year 1990, Zila Parishad terminated its own tenancy and directed its officials yo handover the possession of the property to plaintiffs. However, this direction was not complied with. It was also an admitted fact that plaintiffs did not take any step to recover the possession of the property and were now directly before the Court claim damages for wrongful possession by Zila Parishad.

Question before the Court was “Whether the landlord would be entitled for damages after termination of tenancy if he does not take any step for recovery of possession for more than 12 years after termination?”

The High Court referred to Chander Kali Bai v. Jagdish Singh Thakur, (1977) 4 SCC 402 wherein it was observed, “if a tenant continues in possession after termination of contractual tenancy, he would not be liable for damages till the decree for eviction is passed.” In the instant case, no decree for eviction was passed. The tenant Zila Parishad itself terminated the tenancy. In such case, the landlord plaintiffs were bound to file suit for possession. He could not directly file suit for damages for the amount not agreed under the contract. Furthermore, damages by way of mesne profits can be awarded under Order 20 Rule 12 only from the date of decree for possession for the period for which the possession is wrongfully retained in spite of the decree. In such view of the matter, the second appeal was dismissed. [Arvind v. State, 2018 SCC OnLine Bom 6069decided on 10-12-2018]

Case BriefsForeign Courts

High Court of South Africa, Eastern Cape Division: Plaintiff had approached this court before a Single Judge Bench of E. Revelas, J., for grant of damages against the defendant for injuries sustained by him during a motor vehicle accident.

Counsel of defendant, Advocate Paterson conceded that in absence of any contrary version the plaintiff’s account of the accident had to be accepted but since plaintiff did not apply brakes shows his negligence and that there was contributory negligence on his part.

High Court was of the view that even if some other driver would have reacted differently in the same circumstances, it does not mean that the plaintiff’s responses and actions were negligent. It was noticed that if the plaintiff had applied brakes it could have caused the vehicle to skid into other traffic and could have then resulted in contributory negligence. Court found the other colliding vehicle’s driver to be aggressive, reckless and inconsiderate and the one to be wholly blamed. Therefore, the defendant was directed to pay 100% of damages to the plaintiff. [Nicholas v. Road Accident Fund, Case No. 3880 of 2015, decided on 27-11-2018]

 

Case BriefsHigh Courts

Chhattisgarh High Court: A Single Judge Bench comprising of Sanjay K. Agrawal in an order stated that “Post office is not liable to pay damages for delay in delivery of speed post-postal articles in light of Section 6 of the Indian Post Office Act, 1898.”

The facts of the case stated that, the petition dealt with the issue of whether Permanent Lok Adalat, Public Utility Services is justified in granting damages to the respondent whose speed post in regard for an application for a post at Bastar University did not reach on time and in light of the said circumstance, the respondent reached before the Permanent Lok Adalat to claim damages.

The contentions of the petitioner-Union of India rejecting the claim stated that in view of Section 6 of the Indian Post Office Act, 1898, for the delay in transmission of the postal article, the petitioner does not stand responsible as the delay did not occur due to any kind of fraud or willful intention of the petitioner.

Therefore, the High Court on careful consideration of the facts and circumstances of the case and on perusal of Section 6 of the Indian Post Office Act, 1898 the court made clear that Post office is run by the Government and it shall not be liable for any delay caused during the delivery of the postal articles, except the liability which may be expressed by the Central Government. Hence the Court by setting aside the order by the Permanent Lok Adalat stated that petitioner is not liable to pay any damages and respondent is only entitled to compensation equal to the composite speed post charges that have been already paid.[Post Master, Main Post Office, Jagdalpur v. Rajesh Nag, 2018 SCC OnLine Chh 552, order dated 19-07-2018]

Hot Off The PressNews

Johnson & Johnson has been asked to pay nearly $4.7bn as damages to 22 women who claimed that ‘Johnson’s baby powder’ was the reason for the development of ovarian cancer in them.

The trial to claim punitive and compensatory damages of $4.14bn and $550m in the said case was held at a Court in St. Louis. Medical experts testified that asbestos a known carcinogen was mixed with the talcum powder and is the primary ingredient in the said talcum powder.

So far about 9,000 women have claimed damages from the company as they stated that the talcum powder had contributed to their ‘ovarian cancer’.

The company said that it intended to appeal as they were disappointed with the Court’s verdict.

[Source: The Guardian]

Foreign CourtsNews

US District Court for Northern District of Texas: A federal court presided by Ed Kinkeade, J. halved the amount of USD 500 million that was to be paid by Facebook Inc. and others to ZeniMax Media Inc., a video game publisher. The Court also turned down ZeniMax’s request for the ban on sale and promotion of products by ‘Oculus’- virtual reality unit of Facebook. In 2014, Oculus (bought by Facebook for about USD 2 billion) was sued by ZeniMax alleging it of stealing trade secrets while developing a headset and violating copyright. In 2017, a US Jury in Dallas found that Oculus used ZeniMax’s computer code to launch ‘Oculus Rift’-VR headset; and ordered Facebook, Oculus, and others to pay a combined USD 500 mn to ZeniMax. Kinkeade, J., in his order, said that USD 250 mn ordered against Oculus and its co-founders for false designation lacked sufficient evidence for damages. Holding thus, the Court halved the amount to be paid by Facebook, Oculus, and others.

[Source: Reuters]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench of the Delhi High Court granted an ex parte order in favour of Yahoo Inc. restraining the defendant to use the domain name ‘yahookochi’ and also awarded damages of Rs. 5 lakh.

The Court noted that there is no plausible explanation for the adoption of the identical mark as part of trading name and domain name of the defendant and the potentiality of harm is enormous on the internet as the plaintiff has a very wide internet presence and operates various YAHOO formative websites.

Mr. Praveen Anand represented the Plaintiff (Yahoo Inc.) and pointed out that even after issuance of Cease and Desist notice the defendant did not change the name. The Court said that “the adoption of the YAHOO mark by the defendants is dishonest as is evident from the fact that the font used by the defendants to represent YAHOO in their trading name is identical to the unique stylized font which the plaintiff used to represents its YAHOO trade mark till 2014”. [Yahoo Inc. v. Rinshad Rinu, 2017 SCC OnLine Del 8949 , decided on 03-07-2017]

Case BriefsHigh Courts

Allahabad High Court:  Deciding the question as to whether orders of Human Rights Commission to make payment of compensation or damages are mere recommendations, the Bench of Dr Dhananjaya Yeshwant Chandrachud, C.J. and Yashwant Varma, J. observed that  “Governed as we are by the rule of law and by the fundamental norms of the protection of life and liberty and human dignity under a constitutional order, it will not be open to the State Government to disregard the view of the Commission The State Government is at liberty to challenge the order of the Commission on merits since no appeal is provided by the Act. But it cannot in the absence of the order being set aside, modified or reviewed disregard the order at its own discretion.

The deceased was an undertrial prisoner lodged in the district jail in Muzaffarnagar and suffering from chronic lung disease. The treatment record indicated that he was provided treatment only from 15-5-2012 and he died on 21-5-2012. Though he had been admitted to jail on 9-9-2011, until 15-5-2012, neither medical check up was carried out to control or treat his lung disease nor was he sent to a competent medical facility until his condition had deteriorated. After an inquiry, finding a case of negligence on the part of jail officials in not providing adequate medical treatment, the Commission recommended the grant of compensation of Rs 2 lakhs to his next of kin. Subsequently, the Commission directed the State Government to report compliance of the same along with proof of payment, which order is under challenge here.

The petitioner’s contention was that the power of the Commission under Section 18(a)(i) of the Protection of Human Rights Act, 1993 was to “recommend” to the Government or authority concerned to make payment of compensation or damages to the complainant or victim or the members of his family and since the Commission’s power being recommendatory in nature, the directive to furnish proof of compliance was contrary to law and liable to be set aside.

The basic question is whether the use of the expression “recommend” in Section 18(a) can be treated by the State Government or by an authority as merely an opinion or a suggestion which can be ignored with impunity. The Court observed that “to place such a construction on the expression “recommend” would dilute the efficacy of the Commission and defeat the statutory object underlying the constitution of such a body. The Commission is entitled to do so where it finds either a violation of human rights or a negligence in the prevention of a violation of human rights.”

The Court held that  “While a challenge to the order of the Commission is available in exercise of the power of judicial review, the State Government subject to this right, is duty bound to comply with the order. Otherwise the purpose of enacting the legislation would be defeated. The provisions of the Act which have been made to enforce the constitutional protection of life and liberty by enabling the Commission to grant compensation for violations of human rights would be rendered nugatory. A construction which will produce that result cannot be adopted and must be rejected.”  [State of Uttar Pradesh  v. National Human Rights Commission, Writ Petition (C) No. 15570 of 2016, decided on  April 8, 2016]

Tribunals/Commissions/Regulatory Bodies

National Green Tribunal (NGT): NGT has directed Enercon (India) Ltd. to pay Rs. 50 Lakhs for causing damage and degradation to the ecology and environment by setting up wind mills in Kallpavalli area of Ananthapur District in Andhra Pradesh. Said amount would be paid as environmental compensation with the Andhra Pradesh Pollution Control Board, which shall be used for restoration of ecology and environment of the area. The direction of NGT came on an application filed by three societies working for environment protection and regeneration. It was alleged in the application that windmills project was causing irreversible long term ecological damage in the area. The adverse environmental impacts of setting up of cluster of wind mills as claimed by the applicants include increase the overall temperature of the area, destruction the grass, cutting of large number of trees, death of cattles after eating plastic and metal debris spread all over the area, etc. The applicants sought directions by the Tribunal including setting up of an expert committee to understand the actual threat which these windmills pose on the environment and human health; restoration of all the water bodies in the region, which had suffered in the hands of pollution and excavation caused during the construction and setting up of these windmills; inclusion of windmill farms in Category A of the schedule of the Environmental Impact Assessment Notification, 2006; and compensation for losses suffered. After perusing the material produced and the evidence on record, NGT observed that while setting up the wind mills, Enercon (India) Ltd. had constructed roads and, “while constructing the road, extensive damage was caused to the topography, the surrounding areas, ecology and environment. Respondent No. 5 Enercon (India) Ltd.  is, therefore, bound to compensate the damage and degradation caused to the ecology and environment. We, therefore, direct Respondent No. 5 to pay an environmental compensation of Rupees Fifty Lakhs.” The Tribunal further directed that trees of local indigenous species to be planted under guidance of State Forest Department on the constructed road and also on hill top around wind turbines, which shall be maintained as a green area and also directed that plastic, must be disposed properly. Kallpavalli Vrikha Pempakamdarula Paraspara Sahayaka Sahakara Sangam Ltd. v. Union of India, decided on August 25, 2015