Permission to appeal

Permission to appeal decisions

07 November 2017

The Supreme Court has announced its decision on the following permission to appeal applications. This decision was made by a panel of three Supreme Court Justices following a review of the relevant written submissions.

The Royal Society for the Protection of Birds (RSPB) (Appellant) v The Scottish Ministers and others (Respondents) (Scotland) - UKSC 2017/0143

On appeal from the Court of Session (Scotland)

Permission to appeal has been refused in this case in which the RSPB objects to the decision of the Respondent to grant consent under the Electricity Act 1989 to the construction of wind farms in the North Sea. The Appellant objected to the developments on the basis that they could have an adverse impact to seabirds.

Appropriate Assessments ("AAs") were carried out on behalf of the Respondents under the Habitats Regulations 1994 and 2010 and the Offshore Marine Regulations 2007, which concluded that the wind farms would not adversely affect the integrity of the special protection areas. The RSPB raised concerns about the scientific methodology used in the AAs and argued that it did not receive sufficient information in relation to the applications for consent. The Appellant raised judicial review proceedings against the Respondent. The Lord Ordinary reduced the decision of the Respondents to grant the consents to the Interested Parties. The Respondents successfully appealed to the Inner House.

Permission to appeal been refused on the grounds that the application does not raise an arguable point of law of general public importance which ought to be considered at this time, bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.

Mastercard Incorporated and others (Respondents) v Deutsche Bahn AG and others (Appellants) - UKSC 2017/0095

On appeal from the Court of Appeal Civil Division (England and Wales)

Permission to appeal has been granted in this case, in which the Appellants are retailers, and the Respondents own and/or operate the MasterCard credit card scheme. Under certain rules of the scheme, the cardholder's bank charges the retailer's bank a transactional fee known as a "multilateral interchange fee" ("MIF"). The retailer's bank passes on the cost of that indirectly, by charging its own fees to the retailer. The Appellants brought claims alleging, amongst other things, that the Respondents violated EU and domestic competition law by setting inflated MIFs and by causing banks to set inflated MIFs. They allege that this in turn inflated the charges payable by retailers to their own banks.

The Supreme Court has ordered that permission to appeal be granted, and a hearing date will be set in due course.

Fowkes and others (Appellants) v Chief Constable of West Midlands Police and others (Respondents) - UKSC 2017/0086

On appeal from the Court of Appeal Civil Division (England and Wales)

Permission to appeal has been refused in this case, which relates to whether the use of powers under Regulation A19 of the Police Pensions Regulations 1987 by five Police Forces, causing the compulsory retirement of officers, was unjustified indirect discrimination on grounds of age.

The Comprehensive Spending Review in 2010 required Police Forces to make 20% cuts in their budgets over the following four years. Since 80% of their costs related to staffing, having first considered savings elsewhere, Forces then looked to reduce staff numbers in order to achieve this. They sought efficiency through a reduction in staffing; using the power provided by Regulation A19 of the Police Pensions Regulations 1987 (compulsory retirement). Regulation A19 did not permit the compulsory retirement of anyone who had not yet become entitled to a pension worth two-thirds annual pensionable pay, to achieve which took a minimum of 30 years' service. Accordingly, utilisation of the power had the effect of disadvantaging those over 48 who wished to continue in service until their required retirement at age 60 or 65, dependent on their rank.

Initially, 233 claims of age-based discrimination were brought against the respondent Forces. From this group test cases were selected and came before the Employment Tribunal. The Employment Tribunal found in favour of the test claimants that there had been unjustified indirect discrimination, but the Employment Appeal Tribunal and Court of Appeal both found for the Police Forces.

The Supreme Court has refused permission to appeal on the grounds that the application does not raise an arguable point of law.

R (on the application of Richards) (AP) (Appellant) v Chief Constable of Cleveland Police (Respondent) - UKSC 2017/0090

On appeal from the Court of Appeal Civil Division (England and Wales)

Permission to appeal has been refused in this matter, which relates to a matter in which Cleveland Police obtained a Sexual Offences Prevention Order against the Appellant in accordance with s.104(5) of the Sexual Offences Act 2003. This order prohibited the Appellant from having any friendship or sexual or physical relationship with any female without first notifying the police and also prohibited him from approaching, or otherwise communicating with, any female he suspects or knows to be involved in prostitution.

Due to concerns about the appellant and the fact that a community order imposing supervision and residence requirements on him was about to expire, the sexual offences prevention order was varied in 2012 to include further conditions. These conditions required the Appellant to wear a tag when away from his address or any other premises in which he was residing or staying overnight. In January 2013, the Appellant commenced judicial review proceedings to challenge the variation of the sexual offences prevention order. The Appellant claimed that the Sexual Offences Act 2003 conferred no power to require electronic tagging and that the tagging amounts to an impermissible interference with his privacy rights under Article 8 of the European Convention on Human Rights. The application was dismissed by a Divisional Court and this decision was upheld by the Court of Appeal. The Appellant then appealed to the Supreme Court.

The Supreme Court has ordered that permission to appeal be refused on the grounds that it does not raise an arguable point of law of general public importance which ought to be considered at this time bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.