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Our Cases

The PILS Project has secured positive change in a number of areas including education, immigration, housing, poverty and mental health.  Click on the links below for cases that the PILS Project has given legal and/or financial support to.  These cases would not have been taken without the support of the PILS Project.


  • Constitutional Law

In the matter of an Application for Leave to Apply for Judicial Review by Steven Agnew and Others

Case Citations: [2016] NIQB 85 and [2017] UKSC 5

Issue: The Supreme Court ruled that Parliament must authorise the UK’s withdrawal from the European Union.

PILS Members: Jones, Cassidy and Brett Solicitors,  Committee on the Administration of Justice and The Human Rights Consortium were applicants in the case.

PILS Support: The PILS Project provided the significant indemnity required against the legal costs of the government if the case was not successful.

Summary: On 23rd June 2016, the people of the UK voted in a referendum to leave the European Union (EU). The government claimed that they could use executive powers, known as the Royal Prerogative, to start the removal of the UK from the EU under Article 50 of the Treaty of the European Union (TEU), without the consent of Parliament.

On the 24th January 2017, by a majority of eight to three, the Supreme Court held that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.

As regards devolution issues, the Court unanimously rejected arguments that the Scottish Parliament, Welsh Assembly and Northern Irish Assembly should vote on whether Article 50 could be triggered. 

Impact: The judgment ensured that Parliament passed legislation authorising the government to give notice to the EU that it intends to withdraw from it, in line with Article 50.

 

 

  • Education

An Application by Drumragh Integrated Education for Judicial Review and in The Matter of a Decision of The Department of Education 

Case Citation: [2014] NIQB 69

Issue: The importance of the statutory duty on the Department of Education to encourage and facilitate integrated education. 

PILS Member: Integrated Education Fund.

PILS Support: The PILS Project acted as the applicant’s solicitor throughout the entire case. We obtained a legal opinion from our pro bono register. We instructed a barrister to take proceedings. We were successful in entering a Protective Costs Agreement with The Department of Education. This agreement limited the financial risk to the PILS Project if the case was lost.

Issue: This case concerned a challenge to the approach taken by the Department of Education to a development proposal submitted by Drumragh Integrated College to increase pupil numbers.  The Applicant claimed that the Department of Education had failed to consider its statutory duty to ‘encourage and facilitate’ integrated education, under Article 64 of the Education Reform (NI) Order 1989 and the Good Friday Agreement.  The applicant also claimed that the Department’s education planning process failed to incorporate the statutory duty.    

The High Court found in favour of the Applicant.  The Court held that integrated education was a standalone concept and plainly envisages education together at the same school.  The Department of Education had not complied with its statutory duty to encourage integrated education.    

The High Court ruled that the Department of Education’s ‘Needs Model’, which underpins area-based planning, was ‘inflexible’ and provided an ‘additional difficulty’ impeding the expansion of integrated schools. This creation of an ‘additional difficulty’ is the ‘opposite of encouraging and facilitating’. 

The Court concluded that the Department of Education needed to be ‘alive to the Article 64 duty at all levels, including the strategic level.’

Impact: This judgment is extremely significant in clarifying the wide-reaching statutory obligation of the Northern Ireland government towards the promotion of integrated education to include the strategic planning level, which had not allowed for any growth in the integrated sector. The judgment has helped to create 2,000 new places in integrated schools. 

The judgment has also led to the establishment of links between high level decision makers in the Department of Education and Non-Governmental Organisations (NGOs) supporting integrated schools. The judgment links into a recent comprehensive review of integrated schools, as well as a significant amount of funding being allocated to the integrated sector. 

 

In the Matter of an Application by Coláiste Feirste for Judicial Review of a Decision by the Department of Education Relating to School Transport

Case Citation: [2011] NIQB 98

Issue: Irish Medium language school successfully challenged a failure by the Department of Education to put in place adequate transport arrangements.

PILS Member: POBAL.

PILS Support: The PILS Project provided financial support to cover an indemnity against the legal costs of the public body if the case was not successful.

Summary: This case was taken forward by Colma McKee, Vice Chairperson of the Board of an Irish Language Medium School in Belfast. The Applicant claimed that the Department of Education had breached its statutory duty to encourage and facilitate education in the Irish language, under Article 89 of the Education (Northern Ireland) Order 1998 by failing to provide adequate transport to pupils in rural areas.

The failure to provide adequate transport meant it was extremely difficult for pupils and would-be pupils of Coláiste Feirste living outside Belfast who wished to undertake their education in the medium of the Irish language to do so.  

The High Court found in favour of the applicant. The Court concluded that the imposition of the statutory duty to promote the Irish language was not ‘merely aspirational’ but rather ‘has and is intended to have practical consequences and legislative significance.’

It was further decided that the Department of Education ‘failed to give proper weight and consideration to its obligation under Art 89 to encourage and facilitate the development of Irish language Medium education.’ Therefore, the Court compelled the Department of Education to give further consideration to the transport issue in the post primary Irish medium education sector in light of the court’s ruling.

Impact: The judgment brought into focus the statutory obligations of the Northern Irish government towards the promotion of education in the Irish language. It also underscored the duty to provide transport as a fundamental requisite to the fulfilment of such a duty.  The case demonstrated that statutory duties are not abstract and require public bodies to take practical measures to ensure that these duties are fulfilled.

Following a lengthy review of school transport provision and a high level publicity campaign launched by parents and Irish language activists, the Department of Education allocated funding to ensure that adequate transport was in place to enable pupils to attend the school.

 

 

  • Health

In the Matter of an Application by JR47 for Judicial Review

Case Citation: [2013] NIQB 7

Issue: The resettlement of long stay learning disabled patients in Northern Ireland.

PILS Member: Law Centre (NI).

PILS Support: The PILS Project paid the outlays associated with lodging the application in Court.

Summary: This case concerned a challenge to the Department of Health’s failure to carry out an assessment of need and where appropriate to resettle people with learning difficulties back into the community within a reasonable time frame.

The Applicant was made subject to a Hospital Order under the Mental Health (Northern Ireland) Order in 1997. He was detained in a learning disability hospital, outside Belfast. In 2000, the Applicant became a voluntary patient, and therefore was eligible for resettlement in the community. However, only 2 resettlement possibilities materialised within an 11 year period, both of which were unsuitable.

The legal challenge was initially unsuccessful before the High Court and was appealed to the Northern Ireland Court of Appeal. The appeal was allowed and the case was remitted back to the High Court for a fresh hearing. Judgment was handed down in January 2013. The Court held that the Department and the Trust owed a legal duty to assess and review, on a regular basis, the community care needs of long stay residents in learning disability hospitals.

Impact: The judgment affected not only those vulnerable individuals who are currently in the learning disability hospital waiting to be resettled but also those in different facilities across Northern Ireland.

 

 

  • Housing

Bank of Scotland PLC v Rosemary Rea and Others  

Case Citation: [2014] NI Master 11

Issue: Bank of Scotland and other lenders called to account for the way they dealt with mortgage arrears without the consent of borrowers.

PILS Member: Housing Rights.

PILS Support: The PILS Project provided the financial support to meet the applicants’ legal fees, and to provide an indemnity against the legal costs of the lender, if the case was lost.

Summary: These test cases focused on what is known as mortgage capitalisation or consolidation. Capitalisation is where payment arrears are added to the outstanding balance and the monthly instalment is recalculated to ensure all the money borrowed is paid off by the time the mortgage ends. Capitalisation spreads the payment of the arrears over the life of the mortgage, so in a number of cases the monthly payment goes up by a relatively small amount.

The lender was capitalising the arrears of borrowers without their consent, and without checking to see if the borrowers could afford the increased payments as a result of the capitalisation. This is known as ‘unilateral consolidation’.

Despite this consolidation, the bank was also using these same arrears as a basis for an application to the court for a Possession Order, to repossess family homes. In order to settle a case, or to suspend an order for possession, the bank wanted payments above and beyond the monthly instalment towards the arrears, despite the fact that the monthly instalment had already been recalculated, to repay some of those arrears over the rest of the mortgage.

The Court described the practices of the bank as ‘double billing’ and ‘unconscionable’.  The court referred itself to guidelines known as the Mortgage Conduct of Business (MCOB) Rules, and concluded that this kind of unilateral consolidation was ‘extremely poor practice’

Impact:  The UK’s Financial Conduct Authority (FCA) investigation into the practice completed in October 2016. The FCA found that unilateral consolidation was being carried out by a number of mortgage lenders, and estimated about 750,000 homes across the UK had been affected by this practice. Compensation may well be payable to the families affected.

The investigation has also led to the FCA updating guidance to lenders to compensate borrowers affected by the practice and to limit when lenders can consolidate arrears without the consent of borrowers.

 

 

  • Immigration

In The Matter of Applications by Siegnerella Elaine Flaneur and Siegnette Elaine Flaneur for Judicial Review

Case Citation: [2011] NICA 72

Issue: Dutch citizens successfully argued that the decisions to issue deportation orders to them infringed their right to move and reside freely, under Article 18 of the EC Treaty.

PILS Member: Law Centre (NI).

PILS Support: The PILS Project covered the outlay associated with lodging the proceedings with the Court of Appeal.

Summary: The appellants were Dutch sisters who were arrested and prosecuted for smuggling cocaine into Belfast International Airport. They were sentenced to three years and two and half years’ imprisonment respectively. The Secretary of State made deportation orders against the sisters. Although it was noted that there was a low risk of re-offending, they had been convicted of extremely serious offences and the nature of the offence was such as to engage the Secretary of State’s guidelines on public policy and public security.

The Court of Appeal concluded that the Secretary of State had:

(a) Failed to explain how she determined that there was a greater risk than that found in the pre-sentence reports and other assessments, and;

(b) Made factual errors when explaining her decision (including a failure to acknowledge the previous positive educational and employment histories of the sisters).

Given the importance of the rights to reside and move freely under EU law, the Northern Ireland Court of Appeal upheld the sisters’ challenge to their deportation.

Impact: This judgment had significant ramifications for EU nationals facing expulsion from the United Kingdom after serving a prison sentence. It provided vital clarification to government agencies and to individual members of society who were at risk of deportation at the end of serving a custodial sentence in the United Kingdom. 

 

 

  • Open Justice

In the Matter of an Application by the Committee on the Administration of Justice and In the Matter of a Decision of the Parole Commissioners for Northern Ireland communicated on 28 February 2013 and 9 April 2013.

Case Citation: [2014] NIQB 67

Issue: The Northern Ireland High Court held that a decision by the Parole Commissioners of Northern Ireland to refuse access to a representative of the Committee on the Administration of Justice (CAJ) to observe a parole hearing was unlawful. 

PILS Member: Committee on the Administration of Justice (CAJ).

PILS Support: The PILS Project provided financial support to cover the legal fees of the applicant, the costs related to lodging the court papers, and an indemnity against the legal costs of the public body if the case was not successful.

Summary: CAJ applied to the Parole Commissioners of Northern Ireland (PCNI), under Rule 22(4) of the Parole Commissioners’ Rules (NI) 2009, to monitor a parole hearing of a prisoner. The PCNI refused the request.

The High Court held that the PCNI had considered the request by referring themselves to the incorrect rule.  It was clear that the request to send a representative as an observer was considered by the PCNI under Rule 7(8) instead of Rule 22(4).  The Court held these were clearly different tests with different considerations. The PCNI had misdirected themselves in law and could not have weighed the factors relevant to the Rule.  The decision in this case to refuse access to a representative of the CAJ was therefore unlawful.

Impact:  This judgment helps to ensure that legal proceedings continue to be subject to public scrutiny so that justice is not only done but it is also seen to be done. 

 

In the Matter of an Application by Eamonn MacDermott for Judicial Review (Northern Ireland) and In the Matter of an Application by Raymond Pius McCartney for Judicial Review (Northern Ireland).

Case Citation: [2011] UKSC 18.

Issue: The United Kingdom Supreme Court clarified the definition of a miscarriage of justice for the purposes of claiming compensation.

PILS Member: Coiste.

Project Support: The PILS Project provided substantial financial support to enable an appeal to be heard by the UK Supreme Court.

Summary: The appellants, Eamonn McDermott and Raymond McCartney, were convicted of murder committed during the conflict. In 2007, the Northern Ireland Court of Appeal quashed their murder convictions. In doing so, it concluded that miscarriages of justice had occurred. The Appellants applied for compensation under section 133 of the Criminal Justice Act 1988 which allowed for compensation to be paid in miscarriage of justice cases. Their applications for compensation were refused by the Secretary of State.

The decisions to refuse compensation were unsuccessfully challenged by Judicial Review before the Northern Ireland High Court and Court of Appeal. The matter was then brought before the United Kingdom Supreme Court.  The majority held that a ‘miscarriage of justice’ had occurred for the purposes of section 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it.

Impact:

The ruling of the Supreme Court applied to any victim of a miscarriage of justice in England, Wales and Northern Ireland, who wished to seek compensation under the 1988 Act. At the time it provided a significant clarification to the law in the area, and ensured that the United Kingdom continued to comply with international law obligations in this area.

 

 

  • Peace Agreements

Conradh Na Gaeilge's Application and In the Matter of a Failure by the Executive Committee of the Northern Ireland Assembly to Comply with its Duty Pursuant to Section 28D of the Northern Ireland Act 1998

Case Citation: [2017] NIQB 27

Issue: The Northern Ireland Executive failed to discharge its duty to create and implement a strategy to protect the Irish Language, as required by the St Andrew’s Agreement and the Northern Ireland Act 1998.

PILS Members: Conradh na Gaeilge and Michael Flanigan Solicitors.

Project Support: The PILS Project provided an indemnity against the costs of the public body, which would be payable if the case was unsuccessful.

Summary: As a result of the 2006 St Andrew’s Agreement a statutory duty was placed on The Northern Ireland Executive to bring forward and implement a strategy to protect and enhance the use of the Irish language. The duty is found in section 28(D) of the Northern Ireland Act 1998. In March 2016, the Executive Committee voted down a draft Irish Language Strategy. Judicial Review proceedings were started as a result of that decision.

The Northern Ireland High Court ruled that the Executive had failed to discharge its statutory duty. The Court decided there had been more than a reasonable time in which this obligation on the Executive Committee could have been performed since it was originally imposed.  It went on to say that it cannot have been the intention of Parliament that after nearly 10 years from the coming into force of the duty in 2007, this obligation would remain unfulfilled. 

Impact: This case shows how litigation can be used to hold the Northern Ireland government to its commitments arising from the various peace agreements.

The judgment is currently being used by Irish language activists as part of their campaigns to secure legislation that will protect the language and to increase its ability to be used on a day to day basis.

 

In the Matter of an Application by the Committee on the Administration of Justice (CAJ) and Brian Gormally for Judicial Review

Case Citation: [2015] NIQB 59

Issue: The Northern Ireland Executive failed to fulfil an important obligation in the St Andrew’s Agreement by not creating an anti-poverty strategy based on objective need.

PILS Member: Committee on the Administration of Justice (CAJ).

PILS Support: The PILS Project provided financial support to cover the legal fees of the applicant, the costs related to lodging the court papers and protection against the costs of the public body, payable if the case was not successful.

Summary: In 2006, all the main political parties in Northern Ireland signed the St Andrew’s Agreement. One of the important commitments in this agreement was that the Northern Ireland Executive agreed to create a strategy to tackle poverty, deprivation and social exclusion. This commitment was made into a statutory duty, following an amendment to the Northern Ireland Act 1998.

The High Court set out its definition of ‘strategy’ and found that the Executive had failed to create a strategy to tackle poverty. The Executive had not created one single, unified, final document, or a collection of documents from which a single strategy was identifiable.

Impact: The case illustrated how litigation can be used to hold the Northern Ireland Executive to promises made in the peace agreements. There are important elements of those agreements that represent ‘unfinished business’ – and which must be addressed in order for peace in Northern Ireland to become enduring and long lasting.