Permission to appeal

Permission to appeal decisions

23 February 2018

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.

Rotenberg (Appellant) v Times Newspapers Ltd (Respondent) - UKSC 2017/0192

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

Permission to appeal has been refused in this case, in which the issue is whether the lower courts had erred in allowing the parties in an application for financial relief under Part III of the Matrimonial Causes Act 1973 to be named in a Court of Appeal judgment.

The Appellant and First Respondent are former husband and wife and are both Russian nationals. In 2012, shortly before their marriage broke down, the wife moved to the UK. The marriage was dissolved in Russia in 2013 and the wife subsequently sought financial provision in the UK, under Part III of the Matrimonial Causes Act 1973. The husband resisted her application and, in the subsequent proceedings, an anonymity order was obtained preventing publication of the parties' names. When the financial proceedings concluded, the husband argued that the anonymity order should continue. The Second Respondent, the Times newspaper, appeared at the hearing and argued that the order should be discharged in line with the principles of open justice.

Ultimately, the first-instance judge made a limited reporting restrictions order which permitted publication of a particular judgment in the proceedings in a manner which identified the parties' names, and where the wife was living. The husband unsuccessfully appealed this decision to the Court of Appeal, arguing that there was a risk to the family if the judgment was published in an open form, and that the first-instance judge's order was inherently inconsistent. He then sought a further appeal to the Supreme Court.

Permission to appeal has been refused on the grounds that the application does not raise an arguable point of law.

The Court of Appeal judgment can be viewed here:

R (on the application of Hottak and another) (Appellants) v Secretary of State for Foreign and Commonwealth Affairs and another (Respondents) - UKSC 2017/0146

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

Permission to appeal has been refused in this case, in which the issue is whether, in light of the differences in schemes applicable to local staff employed by the British Armed Forces in Iraq and Afghanistan, there has been direct and/or indirect discrimination against the Appellants (who acted as interpreters for the British in Afghanistan) on grounds of their nationality, in breach of the Equality Act 2010.

The Appellants worked as locally employed staff ('LES') in Afghanistan for the British Armed Forces as interpreters. They suffered threats and intimidation as a result of their employment. As LES they were entitled to benefit from polices known as the 'Afghan Scheme' which offered financial benefits and potential relocation to the UK. Iraqi nationals who worked for the British Government in Iraq benefitted from a similar scheme, the 'Iraq Scheme.' The Appellants argue that the Afghan Scheme is significantly less generous than the Iraq Scheme. They brought a claim for judicial review, challenging their exclusion from the more generous benefits available under the Iraq Scheme, arguing that this amounted to discrimination on the basis of their nationality contrary to the Equality Act 2010 and the common law.

The Divisional Court held that there was no jurisdiction to hear the discrimination complaint under the 2010 Act and that there was no direct or indirect discrimination. However, it held that the Respondents had failed to discharge the public sector equality duty under s.149 of the 2010 Act. The Court granted declaratory relief in relation to the public sector equality duty. The Court of Appeal rejected the Appellants' appeal.

Permission to appeal has been refused because the application does not raise an arguable point of law of general public importance which ought to be considered at this time. Jurisdiction under the Equality Act is capable of being a point of law of general public importance but this is not a suitable case in which to raise it because this was clearly not direct (or indirect) discrimination on grounds of nationality. It fails 'the reason why' test.

The Court of Appeal judgment can be viewed here: