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[2026] UKSC 34 On appeal from: [2025] EWCA Civ 226 JUDGMENT R (on the application of Quaye) (Appellant) v Secretary of State for Justice (Respondent) before Lord Sales, Deputy President Lord Briggs Lord Hamblen Lord Stephens Lady Simler JUDGMENT GIVEN ON Heard on 22 and 23 June 2026 Appellant Edward Fitzgerald KC Pippa Woodrow (Instructed by Bhatt Murphy Solicitors) Respondent Ben Watson KC Will Hays (Instructed by Government Legal Department) LORD STEPHENS AND LADY SIMLER (with whom Lord Sales, Lord Briggs and Lord Hamblen agree): Introduction 1. The issues on this appeal concern the mandatory sentence of detention during His Majesty’s pleasure (also known as “DHMP”) imposed on those persons who are children at the date upon which they commit the offence of murder. Until 1908, persons who committed murder when they were children were liable to be sentenced to death. The death penalty for a child murderer was abolished by the Children Act 1908, which provided, instead, for such an offender to be sentenced to detention during His Majesty’s pleasure. A sentence of detention during His Majesty’s pleasure is a sentence of detention for an indeterminate period (as long as is considered necessary) in a place determined by the Secretary of State, and under lifelong licence subject to recall thereafter. As enacted in the Children Act 1908 it was for the Secretary of State (then the Secretary of State for the Home Department) to decide whether and when to release the offender on licence, either conditionally or unconditionally. It was “an important and distinctive feature of the sentence of [detention during His Majesty’s pleasure] that the detainee should be subject to continuing review [by the Secretary of State] so that the detainee may be released if and when it is judged appropriate to do so”: see R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159 (“Smith”) at para 10. Furthermore, as the murder was committed when the offender was a child it was recognised that they were not fully mature when committing the crime and should not be punished as if they were. The reviews to be carried out by the Secretary of State included assessing the offender’s maturation and development whilst in detention so that “a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation”: Smith at para 12. 2. In respect of a sentence of detention during His Majesty’s pleasure as originally enacted in the Children Act 1908, there was no judicial involvement in setting a minimum term or tariff to reflect the seriousness of the offence and the elements of retribution and deterrence. Rather, the duration of a person’s detention was wholly within the discretion of the Secretary of State. In exercising that discretion, a policy evolved under which the Secretary of State fixed the tariff, now described as a minimum term, to be served before the offender was considered for release on licence. The Secretary of State’s discretion to fix a minimum term also meant that the Secretary of State or their successor could in the exercise of discretion either increase or decrease the minimum term. Furthermore, in considering whether to release the offender it was also wholly within the discretion of the Secretary of State to assess whether the risk which the offender posed to the public was manageable in the community. Whilst appropriate in 1908, such a sentence is incompatible with article 6(1) of the European Convention on Human Rights (“ECHR”). Article 6(1) guarantees, amongst other matters, that “in the determination of … any criminal charge” there shall be “a fair … hearing … by an independent and impartial tribunal”. As criminal proceedings include the determination of a sentence, the Secretary of State’s involvement in fixing the minimum term for a sentence of detention during His Majesty’s pleasure is incompatible with article 6(1) ECHR. The Secretary of State is not independent of the executive: see V v United Kingdom (1999) 30 EHRR 121. 3. Since 1908 there have been substantial legislative changes to the sentence of detention during His Majesty’s pleasure which we analyse in greater detail below. The sentence of detention during His Majesty’s pleasure has, in incremental stages since 1908, been “judicialised”: see R v Secretary of State for the Home Department, Ex p Venables and Thompson [1998] AC 407 (“Venables and Thompson”) at p 493 D. In so far as relevant on this appeal fundamental changes were made to the sentence by the enactment of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 which came into force on 30 November 2000: see section 60(1) and section 80(3)(b) of the Criminal Justice and Court Services Act 2000. Since 30 November 2000 it has been a statutory requirement that the minimum term is fixed by the trial judge as part of the sentence and that the offender’s risk on release after expiry of the minimum term is subsequently assessed by the Parole Board, to whom the Secretary of State is bound to refer the case. The Secretary of State is bound to release the person if the Parole Board so directs. Since 30 November 2000, and subject only to one exception (see paras 4–7 below), the Secretary of State no longer plays any decision-making role in relation to the duration of detention of the offender. Rather, the Secretary of State implements the court’s decision as to the minimum term and implements the Parole Board’s decision to direct the release of the detainee on licence. Therefore, it is said that since 30 November 2000 it is no longer an inherent requirement of the sentence of detention during His Majesty’s pleasure that there be a continuing review by the Secretary of State as to whether detention remains justified. 4. After 30 November 2000, and despite the lack of any legislative power in section 82A to alter the minimum term fixed by the court, the Secretary of State (now the Secretary of State for Justice) operated a policy, as an act of clemency in the exercise of the prerogative, under which the minimum term set by the court could be reduced. The policy which is relevant on this appeal was issued by the Ministry of Justice, National Offender Management Service on 12 April 2010 (and remained in place until February 2021) (we refer to it below as “the Policy”). Under the Policy detainees whose minimum terms had not expired were entitled to periodic reviews of progress in custody with the possibility of reduction in the minimum term to be served before early release could be considered. The purpose of the review was to determine whether the existing minimum term was still appropriate in light of the detainee’s progress in custody. Detainees became eligible for a review once they reached the halfway point of their then current minimum term. A review was not automatic. Once the halfway point was reached, the detainee would be contacted and invited to apply for a review. If the case was thought to merit a review, it would be reviewed to determine whether the minimum term should be reduced to reflect the detainee’s exceptional progress in custody. The Policy, based on an act of clemency, was the only exception to the position that as from 30 November 2000 the Secretary of State no longer played any decision-making role in relation to the duration of detention of a person subject to a sentence of detention during His Majesty’s pleasure. On 10 May 2014 (after the changes made with effect from 30 November 2000), Jesse Quaye (then aged 17 years and nine months), and Ayomindy Bile (then aged 15), murdered Connor Barrett. On 20 November 2014, the date upon which they were both convicted, Mr Quaye was aged 18 years and three months and Mr Bile was still 15 years old. They were sentenced on 16 January 2015 to detention during His Majesty’s pleasure pursuant to section 90 of the Powers of Criminal Courts (Sentencing) Act 2000. The judge specified that they must serve a minimum term of 15 years in detention before they would be eligible to apply to the Parole Board for release on licence. At the date upon which Mr Quaye was sentenced he was aged 18 years and five months. The Secretary of State’s Policy was in place on the date on which Mr Quaye committed the offence of murder. Under the Policy when Mr Quaye reached the halfway point of his minimum term, on 15 March 2022, he would have been entitled to apply for a review of his minimum term. However, by March 2022 he was no longer entitled to do so as two things had occurred between 16 January 2015, the date upon which he was sentenced, and the date upon which or shortly after which he reached the halfway point of his minimum term. First, with effect from 18 February 2021 a revised policy for those sentenced to detention during Her Majesty’s pleasure was implemented by a published Prison and Probation Service circular entitled “Revision to the existing policy for Minimum Term Reviews for individuals sentenced to Detention at Her Majesty’s Pleasure (DHMP)” (the “Revised Policy”). By virtue of this revision the Secretary of State’s policy of reviewing the minimum term no longer applied to an offender, such as Mr Quaye, who was over 18 when sentenced. In accordance with the Revised Policy, Mr Quaye was not therefore eligible to apply for a review when he had served half his minimum term, but Mr Bile was still eligible. No challenge has been made to this change of policy. Second, Parliament had intervened by enacting section 128(1) of the Police, Crime, Sentencing and Courts Act 2022. Section 128(1) inserted sections 27A and 27B into the Crime (Sentences) Act 1997 (“the 1997 Act”). Sections 27A and 27B took effect on 28 June 2022. Section 27A(1) read with section 27A(11) provides that only persons who were under 18 at the time when the sentence of detention during His Majesty’s pleasure was imposed can apply for a minimum term review. Persons who were aged 18 or more at the date of sentence, such as Mr Quaye, could not apply for a review of their minimum term. However, Mr Bile, who was sentenced when he was under 18, could still apply for a minimum term review. On 8 September 2022, Mr Quaye commenced these proceedings in which he applied for judicial review of sections 27A and 27B of the 1997 Act, as amended, seeking declarations pursuant to section 4 of the Human Rights Act 1998 (“the HRA”) that those provisions were incompatible with several articles of the ECHR. The relevant articles on this appeal are articles 5, 7, and 14 ECHR. Mr Quaye claimed that the absence of a right of review in his case amounted to a breach of article 5 ECHR (the right to liberty and security) as it amounted to arbitrary detention. Alternatively, he claimed that the legislative provisions involved imposing a heavier penalty on him than that which was imposed at the time when he committed the offence and so constituted a breach of article 7(1) ECHR (no punishment without law). He further claimed that the absence of a right of review gave rise to unlawful discrimination on the grounds of age contrary to article 14 ECHR (prohibition of discrimination) read with article 5 ECHR. The Divisional Court (Davis LJ and May J) in a reserved judgment handed down on 9 February 2024 ([2024] EWHC 211 (Admin); [2024] 1 WLR 3303) held that the removal of the possibility of a reduction in the minimum term gave rise to a risk of arbitrary detention and would “inevitably result in a number of offenders serving longer than lawfully they should” (see para 59 of its judgment). It concluded that that was incompatible with article 5 ECHR. The Divisional Court considered that it was not necessary to reach a conclusion on whether the provisions were incompatible with article 7 ECHR. It also held, however, that the absence of the possibility for those aged 18 when sentenced to apply for a review of the minimum term amounted to unlawful discrimination contrary to article 14 ECHR, read with article 5 ECHR. It granted declarations that section 27A(1) and (11) of the 1997 Act were incompatible with articles 5 and 14 ECHR. Before the Divisional Court Mr Quaye also claimed that the provisions involved a breach of article 6 ECHR which guaranteed a right to a fair trial. However, the Divisional Court dismissed this claim, and it has not been further pursued. The Secretary of State’s appeal was heard by the Court of Appeal (Dame Victoria Sharp P, Lewis LJ, and Cobb J) on 11 and 12 February 2025 and allowed in a comprehensive judgment delivered on 11 March 2025: [2025] EWCA Civ 226; [2025] 1 WLR 2682. The Divisional Court’s declarations of incompatibility were quashed. Mr Quaye’s cross appeal relying on article 7 ECHR was dismissed. In brief summary, the Court of Appeal held that: (a) section 27A did not engage article 5 or 7 ECHR; and (b) although article 14 ECHR was engaged, the differential treatment complained of between child offenders subject to detention during His Majesty’s pleasure was objectively justified. Mr Quaye now appeals to this court. Factual background The factual background to the case was agreed between the parties and is set out fully in the Court of Appeal’s judgment at paras 53 to 59. We gratefully repeat that account. On 10 May 2014, a 21st birthday party took place at a family home in Hemsby in Norfolk. The victim, Connor Barrett, had volunteered to provide the music at the party. He was 21 years old at the time. Mr Quaye, who was 17 and nine months at the time, went to the party uninvited with his friend Ayomindy (also known as Ayo) Bile who was aged 15. Both took knives to the party. At the party, Mr Quaye and Mr Bile first assaulted a young man, Ricky Halliday, who they thought had given them some offence some days or weeks prior to the party. They both attacked him, punching him in the face on a number of occasions, and inflicting bodily harm on him. No weapons were produced during that assault. Mr Halliday spoke to the victim, Mr Barrett, who asked them why they had attacked Mr Halliday. A fight started between Mr Bile and the victim. Mr Quaye went to assist. Both Mr Quaye and Mr Bile surrounded the victim, and he was stabbed four times, dying of his wounds. Mr Quaye was charged with the murder of Mr Barrett. Mr Quaye pleaded not guilty. There was a trial and Mr Quaye was convicted of the offences in November 2014, by which time he was 18 years old. Mr Bile was also convicted. He was still aged 15 (at the time of conviction and sentence). Mr Quaye was also convicted of assault occasioning actual bodily harm on Mr Halliday and possession of an offensive weapon. Sentencing took place on 16 January 2015. The sentencing judge had a forensic psychologist report prepared on Mr Quaye dated 8 January 2015 and a pre-sentence report prepared by a probation officer dated 13 January 2015. 20. The sentencing judge began by identifying the appropriate starting point for murder under Schedule 21 of the Criminal Justice Act 2003. That was 12 years in the case of a person, such as Mr Quaye, who was under 18 years of age at the time that the murder was committed. The judge noted that had Mr Quaye been three months older and an adult, the starting point would have been 25 years’ custody. The sentencing judge considered the aggravating features. He considered that the taking of knives to the party and the use of knives were aggravating features justifying increasing the starting point. The fact that the murder took place at a residential home and in front of the victim’s family, including his younger brother who watched his brother die, were aggravating factors. The mitigating factors were that Mr Quaye did not have any relevant previous convictions (although, on the evidence, he was involved in a gang culture which involved carrying knives). The sentencing judge accepted that Mr Quaye did not intend to kill Mr Barrett (he intended to cause grievous bodily harm) which was a mitigating factor. The sentencing judge noted from the psychologist’s report and the pre-sentence report that Mr Quaye did not accept his guilt and did not accept the verdict of the jury. The reports referred to Mr Quaye’s difficult background and that his partner was expecting his first child at the end of the month in which he was sentenced. 21. The judge noted that this was a truly tragic case with no winners. A decent and loving man had had his life taken, leaving family and friends distraught and the life of the victim’s young son had been devastated. He said that the perpetrators “will spend many years in prison”. The sentencing judge then sentenced Mr Quaye and Mr Bile to be detained indefinitely at His Majesty’s pleasure, and he determined the minimum term to be served, saying this: “Ayo Bile and Jesse Quaye, for the offence of murder of Connor Barrett, you will be detained during Her Majesty’s pleasure for a minimum term of 15 years. That means you will be held in custody for at least 15 years, it may be a lot longer, I emphasise that. You will not be released unless and until the Parole Board is satisfied that the risk you pose to the public is manageable in the community. The days you have been on remand in custody will be deducted from that 15 years, 229 in your case Bile, 249 days in your case Quaye.” Mr Quaye was also sentenced to nine months’ detention for assault occasioning actual bodily harm and 12 months’ detention for possession of an offensive weapon. Those sentences were to be served concurrently to the minimum term for murder. Evolution of the sentence of detention during His Majesty’s pleasure In considering the evolution of the sentence of detention during His Majesty’s pleasure it is necessary to consider: (a) the legislative changes; (b) successive Secretaries of State’s policy statements; (c) the judgments of the House of Lords in Venables and Thompson and Smith; (d) the Government’s white paper entitled “A Smarter Approach to Sentencing”, dated 16 September 2020; and (e) the judgment of the European Court of Human Rights (“the Strasbourg court”) in V v United Kingdom. The legislative provisions between 1908 and 2000 24. As we have indicated the death penalty for persons who committed murder when they were children was abolished by the Children Act 1908, which provided instead, for children to be detained during His Majesty’s pleasure. Sections 103 and 105 of the Children Act 1908, as originally enacted, provided: Abolition of death sentence in case of children and young persons Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence the child or young person to be detained during His Majesty’s pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and under such conditions as he Secretary of State may direct, and whilst so detained shall be deemed to be in legal custody. … 105. Provisions as to discharge of children and young persons detained in accordance with directions of Secretary of State— A person in detention pursuant to the directions of the Secretary of State under the last two foregoing sections of this Act may, at any time, be discharged by the Secretary of State on licence. A licence may be in such form and may contain such conditions as the Secretary of State may direct. A licence may at any time be revoked or varied by the Secretary of State, and where a licence has been revoked the person to whom the licence related shall return to such place as the Secretary of State may direct, and if he fails to do so may be apprehended without warrant and taken to that place.” Under these sections the decision as to whether and if so when a person was to be released on licence was wholly within the discretion of the Secretary of State. If the Secretary of State discharged the person from detention, then the Secretary of State determined the form of the licence and the conditions contained in it. It was for the Secretary of State to revoke or vary the licence. There was no judicial involvement in determining: (a) a minimum term to reflect the seriousness of the offence and the elements of retribution and deterrence; (b) whether the person’s detention continued to be justified; (c) whether the person ought to be released; (d) the licence conditions upon which the person should be released; and (e) the revocation or variation of a licence. 25. Sections 103 and 105 of the Children Act 1908 were replaced in materially similar terms by section 53 of the Children and Young Persons Act 1933. Section 53 provided: Sentence of death shall not be pronounced on or recorded against a person under the age of eighteen years, but in lieu thereof the court shall sentence him to be detained during His Majesty’s pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and under such conditions as the Secretary of State may direct. Where a child or young person is convicted on indictment of an attempt to murder, or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during that period, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Secretary of State may direct. A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody. Any person so detained as aforesaid may, at any time, be discharged by the Secretary of State on licence. Such a licence may be in such form and may contain such conditions as the Secretary of State may direct, and may at any time be revoked or varied by the Secretary of State. Where a licence has been revoked the person to whom the licence related shall return to such place as the Secretary of State may direct, and if he fails to do so may be apprehended without warrant and taken to that place.” In relation to the sentence of detention during His Majesty’s pleasure, the decision as to whether and when a person serving such a sentence was to be released on licence remained wholly within the discretion of the Secretary of State. By virtue of section 53(2) a court could impose a discretionary sentence of detention for life for the offences of attempted murder, manslaughter, or wounding with intent to do grievous bodily harm. 26. The Children and Young Persons Act 1933 also enacted the welfare principle for every court in dealing with a child or young person. Section 44 (as subsequently amended and which remains in force) provides: “Every court in dealing with a child or young person who is brought before it, either as … an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.” It is clear from this statutory direction that in dealing with children (whether by sentencing or otherwise) a court is bound to take into account the welfare of the child. In Venables and Thompson at p 496 D, Lord Browne-Wilkinson recorded that Mr Pannick for the Secretary of State felt unable to contend that the Secretary of State in exercising his discretion in relation to child offenders was not under the same duty. We observe that Mr Pannick’s concession was made in the context of a sentence of detention during His Majesty’s pleasure passed before the changes enacted by Parliament in section 82A of the Powers of Criminal Courts (Sentencing) Act 2000. 27. Section 16 of the Criminal Justice Act 1948 substituted for section 53(1) of the Children and Young Persons Act 1933 the following subsection: Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years; but in lieu thereof the court shall sentence him to be detained during His Majesty’s pleasure; and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.” The amendment did not alter the position that the decision as to whether and when a person serving a detention during His Majesty’s pleasure was to be released on licence remained wholly within the discretion of the Secretary of State. 28. The death penalty for adults was abolished by the Murder (Abolition of Death Penalty) Act 1965. It provided that no person would suffer death for murder and that a person (other than a child) convicted of murder was to be sentenced to imprisonment for life. The decision as to whether and when to release adult offenders was a decision for the Secretary of State. The Murder (Abolition of Death Penalty) Act 1965 also made provision in relation to those persons who committed murder when under the age of eighteen years. Section 1(5) substituted a replacement version of section 53(1) of Children and Young Persons Act 1933 into that Act. The replacement version was in force on 16 January 2015, the date upon which Mr Quaye and Mr Bile were sentenced. The replacement version provided: A person convicted of an offence who appears to the court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person; but in lieu thereof the court shall (notwithstanding anything in this or in any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.” Though there were subsequent amendments to section 53 made by section 16 of the Criminal Justice and Public Order Act 1994 and section 44 of the 1997 Act, the only amendment made by the Murder (Abolition of Death Penalty) Act 1965 was to replace the wording of section 53(1). None of the amendments to section 53 altered the position that the decision as to whether and when a person serving a sentence of detention during His Majesty’s pleasure was to be released on licence remained wholly within the discretion of the Secretary of State. 29. In 1967 a restriction was imposed by Parliament on the discretion of the Secretary of State to release on licence a person subject to detention during His Majesty’s pleasure. The restriction was contained in section 61 of the Criminal Justice Act 1967. Section 61(1), in so far as relevant, provided: “The Secretary of State may, if recommended to do so by the Parole Board, release on licence … a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced … to detention during Her Majesty’s pleasure … except after consultation with the Lord Chief Justice of England together with the trial judge if available.” By virtue of section 61(1) the Secretary of State could only release the person if there was a recommendation by the Parole Board and after consultation with the Lord Chief Justice of England together with the trial judge if available. However, before the Parole Board could make any such recommendation, the Secretary of State had to have referred the case to the Board for its advice. Therefore, the release of a person detained during His Majesty’s pleasure was wholly dependent on, first, the Secretary of State exercising a discretion whether or not to refer the case to the Parole Board and, second, the Secretary of State deciding whether or not to adopt any recommendation made by the Parole Board that the detained person should be released. Similarly, the obligation to consult with the Lord Chief Justice of England and with the trial judge if available only arose if the Secretary of State was contemplating the release of the person. Furthermore, it was for the Secretary of State to decide on the appropriate response to the consultation process. In short, section 61 maintained the earlier approach that the decision as to whether and when a person sentenced to detention during His Majesty’s pleasure was to be released remained wholly within the discretion of the Secretary of State. Whilst section 61(1) of the Criminal Justice Act 1967 maintained the discretion of the Secretary of State as to whether and when to release on licence a person sentenced to detention during His Majesty’s pleasure, it did make changes to the ability to revoke a person’s licence. Under section 62 once the Secretary of State had released a detainee on licence, apart from in cases of emergency, the Secretary of State could revoke that licence so as to recall the former detainee only upon the recommendation of the Parole Board. If the detainee was recalled, the detainee had a right to have their case considered by the Board and, if the Board so recommended, to be released by the Secretary of State on licence. Sections 61 and 62 of the Criminal Justice Act 1967 were replaced by Part II of the Criminal Justice Act 1991. For present purposes it is sufficient to state that after the Criminal Justice Act 1991 the effect of a sentence of detention during His Majesty’s pleasure was that: (a) the child offender was to be detained for an indefinite period, the duration of which was wholly within the discretion of the Secretary of State; and (b) when the Secretary of State, on the recommendation of the Parole Board, released the detainee on licence, the detainee was liable to be recalled throughout their life but such recall was subject to the decision of the Parole Board and not within the discretion of the Secretary of State. (b) The Secretary of State’s policies prior to the judgment of the House of Lords in Venables and Thompson 32. Over the years, successive Secretaries of State have adopted a minimum term policy in exercising discretion whether to release adults who have been sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (HC Debates), cols 505–507: written answer). There were further statements to Parliament made on 16 July 1991 by Dame Angela Rumbold (Hansard (HC Debates), cols 311–312) and on 27 July 1993 by Mr Michael Howard, the Secretary of State, (Hansard (HC Debates), cols 861–864: written answer). The content of those policies was set out by Lord Browne-Wilkinson in his speech in Venables and Thompson: see pp 492 G to 494 G. For the purposes of this appeal, it is sufficient to state that the statement of 27 July 1993 also applied to persons detained during His Majesty’s Pleasure under section 53(1) of the Children and Young Persons Act 1933 and that the detainee’s behaviour after the commission of the offence could be taken into account in justifying changing the review date (ie changing the minimum term). 33. The policy announced on 27 July 1993 in relation to persons detained during His Majesty’s Pleasure had changed by the date that it came to be applied to Mr Venables and to Mr Thompson. Lord Browne-Wilkinson in his speech in Venables and Thompson, at p 495 E–F, stated that it had been made clear from the evidence and in submissions that, in making any change to the minimum term period, the Secretary of State would only have regard to matters relevant to the circumstances of the commission of the crime or the applicant’s state of mind when the offence was committed. The Secretary of State would not in any circumstances vary the minimum term period by reason of events occurring after the commission of the crime. Under this policy, as applied by the Secretary of State to Mr Venables and to Mr Thompson, the way in which they matured or behaved after sentence was imposed was irrelevant: however they developed, the minimum term remained fixed at the minimum set by the Secretary of State. (c) The judgment of the House of Lords in Venables and Thompson delivered on 12 June 1997 The case of Venables and Thompson concerned two ten-year-old boys who murdered a two-year-old child. The trial judge recommended a minimum term of eight years’ detention; the Lord Chief Justice recommended a minimum term of ten years. The Secretary of State determined that the minimum period that each of the offenders must serve in prison before release on licence would be 15 years. As we have indicated under the policy then applied by the Secretary of State, the way in which Mr Venables or Mr Thompson matured or behaved after the sentence of detention during His Majesty’s pleasure was imposed was considered by the Secretary of State to be irrelevant when considering whether to reduce the minimum term. However they developed, the minimum term would remain fixed at a minimum of 15 years. The House of Lords, by a majority, held that the progress of the detainee in custody may call for the minimum term to be varied downwards. The policy adopted by the Secretary of State whereby the minimum term would in no circumstances be varied by reason of matters occurring subsequently to the commission of the offence was unlawful and contrary to the requirement of section 44(1) of the Children and Young Persons Act 1933 that the welfare of the child be taken into account. Accordingly, the decision of the Secretary of State in pursuance of that unlawful policy to fix a minimum term of 15 years in the cases of the applicants had been inconsistent with his duty to keep their detention under continuous review and should be quashed. (d) The Secretary of State’s policy after the judgment of the House of Lords in Venables and Thompson On 10 November 1997, following the decision in Venables and Thompson, the Secretary of State announced the policy which he would in future adopt after the initial fixing of the minimum term, to give effect to the judgment (Hansard (HC Debates), 10 November 1997, written answers, cols 421–422). Under that policy when half of the initial minimum term period had expired, the Secretary of State or a minister acting on the Secretary of State’s behalf would consider a report on the prisoner’s progress and development, and invite representations on the question of minimum term, with a view to determining whether the minimum term originally set was still appropriate. (e) The decision of the Strasbourg court in V v United Kingdom 37. In V v United Kingdom (1999) 30 EHRR 121 the Strasbourg court unanimously held, affirming a decision reached by the Commission with a single dissentient vote, that the procedure adopted to fix the minimum term to be served by the child applicant had violated his rights under article 6 ECHR. The court held (in paras 109, 111, and 114 of its judgment) that the fixing of a minimum term was part of the proceedings and amounted to a sentencing exercise; that article 6(1) was therefore applicable; that that article guaranteed a fair hearing by an impartial tribunal independent of the executive; and that the Secretary of State was clearly not independent of the executive. (f) The Secretary of State’s policy after the decision in V v United Kingdom 38. The decision in V v United Kingdom prompted the Secretary of State to revise the procedure adopted to fix the minimum terms of children and young persons sentenced to detention during His Majesty’s pleasure on conviction of murder. He informed the House of Commons of his new policy in that regard on 13 March 2000 (Hansard (HC Debates), cols 22–23). The Secretary of State proposed a two-pronged response: a legislative scheme to govern new cases under which the minimum term would be set by the trial judge in open court (section 82A of the Powers of Criminal Courts (Sentencing) Act 2000), and an informal ad hoc procedure to govern the cases of HMP detainees sentenced before the legislation would take effect under which the Secretary of State would set any minimum terms in line with the recommendation of the Lord Chief Justice. (g) The judgment of the House of Lords in Smith delivered on 28 July 2005 39. In Smith, the House of Lords had to consider a sentence of detention during His Majesty’s pleasure imposed before 30 November 2000, that is a sentence where the minimum term was fixed by the Secretary of State in accordance with the policy announced in Parliament on 13 March 2000. In Smith the Secretary of State had consulted the trial judge who recommended a minimum term of 16 years and the Lord Chief Justice who recommended a minimum term of 14 years. The Secretary of State fixed a minimum term of 15 years. The House considered whether it was necessary for the Secretary of State to keep the minimum term under review given its approach of treating the minimum term as in effect fixed by the recommendation of the Lord Chief Justice (see para 1 per Lord Bingham). 40. Lord Bingham, at para 10, identified the propositions established by the House of Lords in Venables and Thompson in the following terms: “… I shall summarise the propositions which, in my judgment, are clearly established by these opinions. (1) Section 103 of the Children Act 1908 introduced, and section 53(1) substantially re-enacted, provision for detention during His Majesty’s pleasure as a special sentence devised to reflect the reduced responsibility and special needs of those committing murder as children or young persons. It was a sentence which was expressly differentiated from the sentence which the law required to be passed on those committing murder as adults, in that it required account to be taken of the detainee’s welfare: see the opinion of Lord Browne-Wilkinson [1998] AC 407, 496A–E, 498B–500B; that of Lord Steyn, at pp 518G–H, 520H–522C, 524D–G; that of Lord Hope of Craighead, at pp 529F–530E, 532A–B, 534E–535A. That the majority opinion is to be so understood is confirmed by Lord Lloyd of Berwick, dissenting, at p 513H. (2) It has been an important and distinctive feature of the sentence of HMP detention that the detainee should be subject to continuing review so that the detainee may be released if and when it is judged appropriate to do so: see Lord Browne-Wilkinson, at pp 499H–500F, 502H–503A; Lord Steyn, at pp 522H–523B; Lord Hope, at pp 532A–E, G, 534E–535A, 535B–C. (3) The Murder (Abolition of Death Penalty) Act 1965, which in effect amended section 53(1), confirmed the existence of that feature and the Criminal Justice Act 1991 did not remove it: see Lord Browne-Wilkinson, at pp 500F–502F; Lord Steyn, at pp 522C–H, 523B–524D; Lord Hope, at pp 529G–532A, 534C–E. (4) While there is or may be no objection in principle to the fixing of a minimum term to be served by an HMP detainee before the grant of parole, such term may only be provisional, since the progress of the detainee in custody, reported through continuing review of the detainee’s progress, may call for it to be varied downwards: see Lord Browne-Wilkinson, at p 500E; Lord Steyn, at pp 518F, 520A–B; Lord Hope, at pp 535F–536G. These propositions point towards the correctness of the respondent’s submission and the conclusions reached by the courts below. For if (as was held) the sentence of HMP detention under section 53(1) imports a duty of continuing review and the Acts of 1965 and 1991 have not removed that feature, and if (as is clear) section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 does not affect the respondent’s sentence because it was imposed before 30 November 2000, the respondent remains subject to a sentence which imports a duty of continuing review and the Secretary of State cannot absolve himself from that duty by indicating that he will not perform it.” We would observe that in Smith the House of Lords in summarising the speeches in Venables and Thompson stated that it was an important and distinctive feature of the sentence of detention during His Majesty’s pleasure that the detainee should be subject to continuing review so that the detainee may be released if and when it was judged appropriate to do so. This important and distinctive feature remained inherent in the sentence even though the minimum term was in effect set by the Lord Chief Justice. The House decided that the minimum term remained “subject to continuing review for reconsideration of the minimum term imposed if clear evidence of exceptional and unforeseen progress is reasonably judged to require it”: see para 17. However, as Mr Smith had been sentenced prior to 30 November 2000 the House did not need to consider whether this important and distinctive feature was affected by the enactment of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 and did not do so (see para 15F and para 26). (h) Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 41. Section 90 of the Powers of Criminal Courts (Sentencing) Act 2000 replaced the earlier provisions (dealing with detention at His Majesty’s pleasure), re-stating that where a person convicted of murder appeared to the court to be under 18 at the time the offence was committed, the court should order him or her to be detained during His Majesty’s pleasure. Section 82A was inserted into the Powers of Criminal Courts (Sentencing) Act 2000 by section 60(1) of the Criminal Justice and Court Services Act 2000 and came into force on 30 November 2000. As originally enacted, it provided: “82A. — Determination of tariffs. This section applies if a court passes a life sentence in circumstances where— (a) the sentence is not fixed by law; or the offender was aged under 18 when he committed the offence. The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this section as the ‘early release provisions’) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order. The part of his sentence shall be such as the court considers appropriate taking into account— (a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it; the effect of any direction which it would have given under section 87 below (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and the early release provisions as compared with sections 33(2) and 35(1) of the Criminal Justice Act 1991. If the court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2) above, the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender. If, in a case where an order under subsection (4) above is in force, the offender was aged under 18 when he committed the offence, the Secretary of State shall at the appropriate stage direct that the early release provisions shall apply to the offender as soon as he has served the part of his sentence which is specified in the direction. The appropriate stage, for the purposes of subsection (5) above, is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction. In this section— ‘court’ includes a court-martial; ‘life sentence’ has the same meaning as in Chapter II of Part II of the Crime (Sentences) Act 1997.” 42. Accordingly, section 82A applied (see subsections (1) and (2)) where the court passed “a life sentence” which included detention during His Majesty’s pleasure. In such a case, the court was required (save when it intended to impose a whole life order because of the seriousness of the offence or offences) to specify a period (known as a “tariff” or “minimum term”) and direct that the “early release provisions” in section 28(5)–(8) of the 1997 Act are to apply “as soon as [the offender] has served the part of his sentence which is specified in the order”. In other words, this provision gave power to the court to assess and fix the minimum term to be served by the offender, and the minimum term so fixed was a sentence imposed by the court. As such, the minimum term fixed by the court under section 82A was subject to an appeal against sentence to the Court of Appeal: R v McBean [2001] EWCA Crim 1891; [2002] 1 Cr App R (S) 98 at para 17. 43. Further, once section 82A was in force: (i) The sentence of detention at His Majesty’s pleasure became a life sentence with a minimum term fixed by the court to reflect, among other things, the seriousness of the offending whereas until that point the sentence was at His Majesty’s pleasure and the Secretary of State had to decide how long the offender should serve (in accordance with section 28(4) of the 1997 Act) and the sentence carried with it a discretion to be exercised by the Secretary of State to release early on the advice or recommendation of a judge). (ii) Except in the case of a whole life order imposed by the court, the early release provisions in section 28(5)–(8) of the 1997 Act applied by operation of a court order directing that those provisions should apply (section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000). This meant that, as a matter of statute, an offender sentenced to detention at His Majesty’s pleasure became a “life prisoner” to whom section 28 applied and had to serve the whole of his or her minimum term before early release could be considered. Once he or she had served the whole of the minimum term of their sentence, the offender could require the Secretary of State to refer their case to the Parole Board for consideration of whether it was no longer necessary for the protection of the public that the offender should be confined. If so satisfied, and the Parole Board directed early release under section 28, the Secretary of State was under a duty to release the offender on licence. 44. Provisions governing the effect of life sentences imposed on or after 18 December 2003 were contained in Chapter 7 of Part 12 of the Criminal Justice Act 2003. These provisions applied to a sentence of detention during His Majesty’s pleasure (section 277). Section 269 of the Criminal Justice Act 2003 reproduced in materially similar terms the provisions of section 82A concerning the court’s powers to determine the minimum term of a life sentence to be served and to direct that the early release provisions should apply. In addition, section 269(5) provided that in considering the seriousness of an offence (or offences) for the purposes of determining the minimum term, the court was required to consider “(a) the general principles set out in Schedule 21, and (b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21”. 45. The relevant sentencing provisions are now contained in the Sentencing Act 2020 (“the Sentencing Act”). Section 259 replaced section 90 of the Powers of Criminal Courts (Sentencing) Act 2000 and provides that the court must order that an offender who appears to have been aged under 18 at the time that he committed an offence of murder is detained during His Majesty’s pleasure. Provisions governing the effect of life sentences are included in Chapter 8 of Part 10. Life sentences are defined to include sentences of life imprisonment (in the case of an adult), detention for life (imposed on a child pursuant to sections 250 and 258) and detention at His Majesty’s pleasure (section 324 of the Sentencing Act). 46. Since the enactment of section 82A, and in brief summary, a court considering the seriousness of an offence of murder committed by a child, for the purposes of determining the minimum term to be served, has had to (and continues to) consider the following: (a) the offender’s culpability and the harm which the offence caused (section 143 of the Criminal Justice Act 2003); (b) applying the welfare principle in section 44 of the Children and Young Persons Act 1933; (c) applying any relevant sentencing guideline (section 269(5) above, and subsequently, section 120 of the Coroners and Justice Act 2009 and section 59 of Sentencing Act); (d) fixing the minimum term judged necessary to meet the seriousness of the offence and the requirements of retribution and general deterrence; (e) leaving out of account the risk posed by the offender which is a matter for the Parole Board to consider when determining whether, and if so when, the offender is to be released on licence; (f) taking 12 years as a starting point for fixing the minimum term if the offender was aged under 18 when he committed the offence of murder: see paragraph 7 of Schedule 21 of the Criminal Justice Act 2003 (“Schedule 21”); (g) taking into account mitigating and aggravating factors including those set out in Schedule 21 to increase and/or reduce the starting point; and (h) finalising the minimum term in the light of those aggravating and mitigating features. 47. These sentencing principles ensure that sentencing in England and Wales is structured, consistent, and transparent. They also support public confidence in the criminal justice system by standardising sentencing practices across different courts for the offence of murder committed by those under the age of 18. 48. A question on this appeal is whether the important and distinctive feature of continuing review of the minimum term remained inherent in a sentence of detention at His Majesty’s pleasure after the enactment of section 82A. As we will explain, although on the face of it section 82A fundamentally altered the nature of the sentence of detention at His Majesty’s pleasure as identified above, it is not necessary to answer that question given the policies adopted by the Secretary of State after 30 November 2000 (including the Policy) and the later enactment of sections 27A and 27B of the 1997 Act. (i) The Government’s white paper entitled “A Smarter Approach to Sentencing”, dated 16 September 2020 49. The Government published a white paper entitled “A Smarter Approach to Sentencing” on 16 September 2020 (“the White Paper”). Section 6 of the White Paper dealt with tariff reviews for murders committed by children as follows: “Tariff reviews for murder Offenders sentenced to DHMP may apply to the High Court for a review of the length of their tariff at the halfway point. The purpose of this review is to determine whether the tariff should be reduced, and for a review to be successful, the child must show exceptional progress in custody. If the application is unsuccessful, the child can continue to apply every subsequent two years until the tariff expiry date. The existence of reviews is an important part of ensuring that the tariff remains appropriate, as children change and develop as they mature. It is also clear, however, that the existence of the review procedure—particularly the opportunity for continuing reviews after the halfway point—can be extremely distressing for the families of victims. Families are contacted every time an offender applies for a review and are given the opportunity to provide a new victim personal statement, a process which in many cases causes them to relive the circumstances of the crime and feel as though they have to advocate again for justice for their loved one. This difficult process is also unlikely to lead to any benefit for the offender, as subsequent reviews are rarely successful and very few offenders take advantage of the opportunity to apply again. This is why we propose to reduce the number of reviews an offender is entitled to after they turn 18. Offenders who are given life sentences for murders committed over the age of 18, or those who commit murders as children but who are not sentenced until they are over 18, are not entitled to reviews, reflecting the fact that adults do not go through the same accelerated development and maturation that children do. Our new system will be based on this principle. 330. We propose a new, fairer system that recognises that offenders who were sentenced to DHMP as children but have since turned 18 in custody are now adults and have passed the age where significant development occurs, while still accounting for the fact that they were children and still maturing when the crime was committed and they were sentenced. Under the new system all offenders sentenced when under 18 would receive the opportunity to apply for one tariff review at the halfway point of their sentence. This will allow the High Court to take into account any development or maturation since the crime was committed. However, the offender will only be eligible for subsequent reviews covering the period until they turn 18. This change will make the tariff review policy equitable for all offenders who are given life sentences for crimes they committed as children, regardless of their age when they are sentenced, while also reflecting the fact that adult offenders are not eligible for any reviews. Removing eligibility for continuing reviews past the age of 18 will provide more clarity for victims’ families and keep them from having to continually revisit the events that led to the loss of their loved one. Continuing reviews provide very little practical benefit for offenders, and this change will ensure that all offenders who have reached adulthood are treated equally while still offering the opportunity for rehabilitation and making allowances for the process of development and maturation in children.” 50. The statement in para 329 that offenders who “commit murders as children but who are not sentenced until they are over 18, are not entitled to reviews” was wrong at the time it was written. In September 2020, when the White Paper was presented to Parliament, the Secretary of State’s Policy was in place (applications for a minimum term review from those over and under 18 when sentenced were invited). The inaccuracy was drawn to the attention of the Secretary of State in a submission dated 16 October 2020. The Policy was changed with effect from 18 February 2021 as we have explained above. With effect from 18 February 2021, the Revised Policy of the Secretary of State was that offenders sentenced to detention at His Majesty’s pleasure when aged 18 or over would not be eligible to apply for a review while those under the age of 18 would continue to be eligible to apply for a review. (j) Sections 27A and 27B of the 1997 Act 51. The material provisions of section 27A are: “27A Sentence of detention during Her Majesty’s pleasure imposed on a person under 18: application for minimum term review This section applies to a person who— (a) is serving a DHMP sentence, and was under the age of 18 when sentenced; and such a person is referred to in this section as a ‘relevant young offender’. A relevant young offender may make an application for a minimum term review to the Secretary of State after serving half of the minimum term. An ‘application for a minimum term review’ is an application made by a relevant young offender for a reduction in the minimum term. Where a relevant young offender has made an application for a minimum term review under this section, the offender may only make a further such application if— (a) the period of 2 years beginning with the day on which the previous application was determined has expired, and the offender is under the age of 18 on the day on which the further application is made. Where the Secretary of State receives an application under this section, the Secretary of State must— (a) consider the application, and unless the Secretary of State forms the view that the application is frivolous or vexatious, refer it to the High Court. Where the Secretary of State decides not to refer the application to the High Court, the Secretary of State must give notice of that decision, and the reasons for it, to the relevant young offender. … In this section— ‘DHMP sentence’ means a sentence of detention during Her Majesty’s pleasure imposed (whether before or after this section comes into force) under a provision listed in column 1 of the table in subsection (9); ‘minimum term’, in relation to a person serving a DHMP sentence, means the part of the sentence specified— (a) in the minimum term order made in respect of the sentence, or where one or more reduction orders have been made under section 27B in respect of the sentence, in the most recent of those orders; ‘minimum term order’, in relation to a DHMP sentence, means the order made under the provision listed in column 2 of the table in subsection (9) that corresponds to the entry in column 1 that relates to the sentence. … For the purposes of subsection (4), an application for a minimum term review is determined— (a) when the court makes a reduction order or a decision confirming the minimum term (see section 27B), or in a case where the application is not referred to the court, when the Secretary of State gives the relevant young offender notice in relation to the application under subsection (6). There is no right for any person who is serving a DHMP sentence to request a review of the minimum term other than that conferred by this section.” 52. Section 27B deals with the exercise of the power by the High Court to reduce the minimum term. It provides: “27B Power of High Court to reduce minimum term This section applies where the Secretary of State refers an application for a minimum term review made by a relevant young offender under section 27A to the High Court. The court may— (a) make a reduction order in relation to relevant young offender, or confirm the minimum term in respect of the offender’s DHMP sentence, and a decision of the court under this subsection is final. A reduction order is an order that the relevant young offender’s minimum term is to be reduced to such part of the offender’s DHMP sentence as the court considers appropriate and is specified in the reduction order. In deciding whether to make a reduction order, the court must, in particular, take into account any evidence— (a) that the relevant young offender’s rehabilitation has been exceptional; that the continued detention or imprisonment of the offender for the remainder of the minimum term is likely to give rise to a serious risk to the welfare or continued rehabilitation of the offender which cannot be eliminated or mitigated to a significant degree. In this section ‘DHMP sentence’, ‘minimum term’ and ‘relevant young offender’ have the same meaning as in section 27A.” 53. It is appropriate at this point to make several observations in relation to sections 27A and 27B. 54. First, section 27A clearly provides that the only persons who may make an application for a minimum term review are persons who were under the age of 18 when sentenced to detention at His Majesty’s pleasure: section 27A(1)(b) and (2). 55. Secondly, section 27A(11) excludes the right for any other person to request a minimum term review. 56. Thirdly, the review and any reduction of the minimum term is to be determined by the High Court and not by the Secretary of State. Judicialisation of the reduction in the minimum term removed the last vestige of the Secretary of State’s decision-making role in relation to the duration of detention of persons subject to a sentence of detention during His Majesty’s pleasure. 57. Limited transitional provision was made in relation to these changes by section 128(3) and (4) of the Police, Crime, Sentencing and Courts Act 2022. This provides for “pre-commencement applications” which are defined as applications “by a relevant young offender for a review of the minimum term that was made to the Secretary of State before the day on which [section 27A] comes into force” (subsection (4)). Section 128(3) provides: A pre-commencement application— (a) is to be treated for the purposes of subsection (4) of section 27A of the Crime (Sentences) Act 1997 as if it was made under that section if, at the time the relevant young offender made the application, they had served at least half of the minimum term; if not determined before the day on which this section comes into force, is to be dealt with in the manner in which it would have been dealt with immediately before this section comes into force.” 4. Article 5 ECHR 58. The Divisional Court held, at para 59, that “section 27A did not change the essential nature of a sentence of DHMP” adding that “[a]n inherent element of that sentence is the requirement of continuing review as set out in Venables [1998] AC 407 and Smith [2006] 1 AC 159”. The Divisional Court stated that the requirement of a continuing review inherent in a sentence of DHMP is “unique” and reasoned that “removing any possibility of exercising ‘a more reliable judgment’ [by way of a review] so as to reduce the minimum term will inevitably result in a number of offenders serving longer than lawfully they should”. 59. The Divisional Court’s starting point was that section 27A did not change the essential nature of a sentence of detention during His Majesty’s pleasure and that an inherent element of the sentence was the requirement of continuing review. We disagree with that starting point which ignores the evolution of the sentence of detention during His Majesty’s pleasure which we have set out above and also ignores the effect of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000. 60. Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 fundamentally changed the sentence of detention during His Majesty’s pleasure and sections 27A and 27B of the 1997 Act removed any potential for reducing the minimum term outside the terms of section 27A. After section 82A was enacted, it is difficult to see how there could have been any inherent requirement for a continuing review of the minimum term fixed by the court to be conducted in exercise of prerogative powers by the Secretary of State. On the face of it, the legislation had occupied the field. Nonetheless, the Secretary of State adopted a policy, based on clemency, of reviewing the minimum term for these detainees, though with effect from 18 February 2021, the Revised Policy did not apply to those who were over 18 when sentenced. Since then, Parliament intervened further with the enactment of section 27A of the 1997 Act as amended, to put the Revised Policy on an entirely statutory footing (providing that those under the age 18 when sentenced can apply for a minimum term review which unless frivolous or vexatious will be heard and determined by the High Court, but by section 27A(11) the right for any other person to request a review of the minimum term is excluded). Therefore, those aged 18 and over when sentenced cannot request or obtain a minimum term review. Since Parliament has occupied the field in the section 27A scheme (if not before in enacting section 82A), the scope for a continuing review of the minimum term through the exercise of the prerogative (or as an act of clemency) has been excluded. The Secretary of State cannot any longer, consistently with the section 27A scheme, rely on an act of clemency to review the minimum terms determined by the court for those aged 18 and over when sentenced to detention at His Majesty’s pleasure. 61. Therefore, the position under domestic law is clear. First, section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 did change the essential nature of a sentence of detention during His Majesty’s pleasure as discussed above. Furthermore, the final vestige of the Secretary of State’s decision-making role in relation to the duration of detention was removed by sections 27A and 27B of the 1997 Act. Secondly, section 27A expressly stipulates that there is no right to a minimum term review other than that conferred by section 27A which is limited to those under 18 when sentenced, and accordingly, for those aged 18 and over when sentenced, there is no right to apply for a review of the minimum term. Since 2022 the scheme for sentencing persons who commit murder as children to detention at His Majesty’s pleasure is an entirely statutory one. 62. The only remaining question under this heading is whether by excluding any opportunity to review the minimum term for those aged 18 and over when sentenced to detention at His Majesty’s pleasure, section 27A(11) gives rise to a risk of arbitrary detention under article 5 ECHR. 63. Article 5(1) ECHR, in so far as relevant, provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person following conviction by a competent court …” Further exceptions are set out in the other sub-paragraphs (b) to (f) of article 5(1). For instance, there is an exception in article 5(1)(b) in relation to “the lawful arrest or detention of a person for non-compliance with the lawful order of a court”. 64. The focus of the argument on behalf of Mr Quaye is that his detention, although lawful in terms of domestic law, is arbitrary and thus contrary to article 5 ECHR. It is submitted that denying detainees any possibility of a review, and thus the possibility of a reduction in the minimum term fixed at trial, generates a risk of unnecessary or excessive (and thus arbitrary) detention. We would observe that in effect it is being suggested that the jurisprudence of the Strasbourg court requires all indeterminate sentences of children to be subject to review. For instance, discretionary life sentences imposed on children would need to be subject to periodic review to ensure that they have not become excessive since they were imposed. There is no Strasbourg jurisprudence supporting this submission. A Grand Chamber of the Strasbourg court, in Saadi v United Kingdom (2008) 47 EHRR 17 considered what might render a sentence arbitrary. It stated, at para 68, that: “While the court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute ‘arbitrariness’ for the purposes of article 5(1), key principles have been developed on a case-by-case basis …” Thereafter, the Strasbourg court set out some of the key principles. It stated, at para 69, that: “One general principle established in the case law is that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities. The condition that there be no arbitrariness further demands that both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of article 5(1). There must in addition be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention.” However, the Strasbourg court made clear its approach to arbitrariness in cases of detention under article 5(1)(a). It stated at para 71: “The court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under article 5(1)(a), where, in the absence of bad faith or one of the other grounds set out at para 69 above, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the court under article 5(1).” 65. Saadi v United Kingdom is not authority for a principle that a minimum term imposed on an offender to meet the seriousness of the offence and the requirements of retribution and general deterrence, which is causally connected with a lawful conviction, will be arbitrary if not subject to review. Rather, the length of the minimum term is a matter for the national authorities rather than for the Strasbourg court. 66. The Strasbourg court considered the principles in relation to article 5(1)(a) in James v United Kingdom (2012) 56 EHRR 12. This was a case dealing with indeterminate sentences of imprisonment for public protection under which the offender had to serve a fixed minimum term but could be imprisoned thereafter until the Parole Board was satisfied that the particular offender no longer presented a risk to the public. The particular issue concerned the absence of courses during the period after the expiry of the minimum term which would assist the offender in addressing the risk of his re-offending. The Strasbourg court stated, at para 189: “The court has also made it clear that the word ‘after’ in sub-paragraph (a) does not simply mean that the detention must follow the conviction in point of time: in addition, the detention must result from, follow and depend upon or occur by virtue of the conviction. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.” The Strasbourg court went on to observe that: “… with the passage of time, the link between the initial conviction and a later deprivation of liberty gradually becomes less strong. Indeed, as the court has previously indicated, the causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the initial decision by the sentencing court or on an assessment that was unreasonable in terms of those objectives.” (Emphasis added.) 67. It is obvious on this appeal that: (a) there is a sufficient causal connection between the conviction and the imposition of the minimum term on Mr Quaye; and (b) the objective of the initial decision by the sentencing court in imposing a minimum term on Mr Quaye was to meet the seriousness of the offence and the requirements of retribution and general deterrence, while paying due regard to his welfare. Furthermore, no principle is established in James v United Kingdom that a minimum term (imposed to meet the seriousness of the offence and the requirements of retribution and general deterrence) will be arbitrary if not subject to review. 68. In conclusion, fixing the minimum term was lawful as a matter of national law. It was fixed in accordance with section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 and the relevant sentencing principles: see para 46 above. In sentencing Mr Quaye, the judge followed the procedure laid down by law, which included the obtaining of relevant reports, the fixing of the starting point by reference to legislation, having regard to the seriousness of the offence, measured by the harm caused and Mr Quaye’s culpability. The assessment of his culpability was undertaken in the light of his maturity and understanding as at the time that he committed the offence. The sentencing judge also took into account the welfare principle and identified aggravating and mitigating factors. The Court of Appeal held, at para 85, that fixing the minimum term was “not arbitrary”. We agree. Furthermore, as recognised by the Strasbourg court in Saadi v United Kingdom the “decision to impose a sentence of detention and the length of that sentence are matters for the national authorities”. The length of the minimum term was for the sentencing judge. It was open to Mr Quaye to appeal if he considered that the minimum term was excessive. 69. The Court of Appeal concluded, at para 87, that: “It cannot, in our judgment, be said that detention in accordance with those statutory provisions was arbitrary or unlawful. The absence of an opportunity whereby an offender could apply to the Secretary of State seeking, as an act of clemency, a reduction of the minimum term by reference to events occurring after sentence (essentially, exceptional progress in prison) does not render detention pursuant to the sentence imposed under section 90 of the [Powers of Criminal Courts (Sentencing) Act 2000] (or section 259 of the Sentencing Act [2020]) arbitrary or unlawful.” We agree and would dismiss Mr Quaye’s ground of appeal relying on article 5 ECHR. 5. Does section 27A unlawfully discriminate against the appellant? 70. Mr Quaye challenges the Court of Appeal’s decision allowing the appeal from the decision of the Divisional Court under this head and holding that section 27A is not incompatible with article 5 read with article14 ECHR. 71. Article 14 is not a free-standing right but requires other Convention rights to be secured without unlawful discrimination “on any ground” specified in article 14 which provides as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 72. The ground relied on by Mr Quaye in this case is the ground of age which is accepted to be an “other status” for this purpose. His case is that section 27A unlawfully discriminates against him (and other offenders sentenced when aged 18 or over for murder committed as a child) because they are not entitled to seek a minimum term review before the early release provisions come into play, as now provided for by section 27A. 73. It is not necessary to show a breach of another Convention right to establish an article 14 discrimination claim. Rather the requirement that an allegation of breach of article 14 must relate to the “enjoyment of the rights and freedoms” in the Convention has been interpreted as meaning that the complaint must fall within the ambit or subject matter of another Convention right. Mr Quaye’s discrimination claim relies on the right to liberty and security in article 5(1) ECHR, and in particular, the risk of arbitrary detention. There is no dispute that section 27A falls within the ambit of article 5 so that article 14 is engaged. 74. For discrimination to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. Here, there is no dispute that an offender who commits an offence of murder whilst a child but is sentenced when aged 18 or over is in an analogous position to a child offender sentenced for the same offence when under the age of 18 (and indeed, a direct comparison is available in this case between the appellant and his co-defendant whose position is otherwise materially the same). 75. It follows that section 27A gives rise to differential treatment on the ground of age at the date of sentencing. But such a difference of treatment is only unlawfully discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. It is for the contracting state to demonstrate objective and reasonable justification. Whether it has done so here is the real question that remains to be resolved. 76. There are two preliminary questions to be considered. The first is about the role of this court in dealing with this aspect of the appeal, and whether we are to conduct a fresh assessment of proportionality or simply review the assessment of proportionality conducted below to determine whether it was arrived at on a proper legal basis and the conclusion reached was reasonable: Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2026] AC 607, paras 142–165. Where a question concerning the Convention compatibility and proportionality of general rules set out in legislation is raised, it is the proper function of the appellate court to determine the question of proportionality for itself without deferring to the assessment made by the lower court, even if that court has directed itself correctly and its decision cannot be said to be unreasonable. Mr Watson KC accepts that this is the case here and we are satisfied that the proportionality assessment called for in the present case clearly involves a situation of this type requiring us to conduct a fresh proportionality assessment in this case. 77. The second preliminary question concerns the appropriate standard of review. (a) The appropriate standard of review 78. Contracting states enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment. The higher the margin of appreciation is, the lower the intensity of review is to be applied by the courts to the impugned decision. The scope of the margin varies according to the circumstances, the subject matter and the background: see Clift v United Kingdom (“Clift”) Application No 7205/07 (unreported) 13 July 2010, para 73). There may be a “wide variety of factors” which, depending on the circumstances might “tend to heighten or lower the intensity of review” (see R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223 at paras 142 and 158 (Lord Reed PSC). 79. Like the courts below, we consider that there is a wide margin of appreciation or low intensity of review to be applied in the circumstances of this case (see the judgments of the Divisional Court, para 46 and the Court of Appeal, paras 122–128). In our judgment there are five broad factors that lead to this conclusion. 80. First, the discrimination is on the ground of age and, as indicated above, age is not a “suspect” ground (R (SC), para 114) and nor is there any basis for calling for a heightened intensity of review based on age in this case. 81. Nonetheless, Mr Fitzgerald KC submits that by removing the opportunity for minimum term reviews for offenders aged 18 when sentenced, section 27A ignores a fundamental welfare principle that applies in this context, namely that child offenders should not be treated in the same way as adult offenders, the critical point being age at the date of commission of the offence. Since as he submits, minimum term reviews are the means by which the welfare of child offenders is respected in the context of mandatory indefinite sentences, his case is that these considerations continue to have relevance notwithstanding that a child offender may have attained majority during the criminal justice process. He relies on R (SC) where the court specifically identified the “best interests of children” as a factor that may require greater intensity of review given the greater needs and vulnerability of young people, even where there is no suspect ground on which the alleged discrimination is based (para 158). 82. We do not accept this argument. Although section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 fundamentally changed the nature of a sentence of detention at His Majesty’s pleasure as we have described, section 27A of the 1997 Act made limited changes only, again as we have explained above. In any event, the sentence still remains a sentence of detention to be imposed on an offender convicted of murder who was under the age of 18 at the time of the offence, no matter the offender’s age at the date of conviction and sentence; and the welfare principle (described above, paras 26 and 46) together with all other sentencing principles relating to children (see the summary at para 46 above) remain to be applied. 83. The age of criminal responsibility, that is the age at which a person may be found guilty of a criminal offence, is ten (there being a conclusive presumption that a child below that age cannot be guilty of an offence: section 50 of the Children and Young Persons Act 1933 as amended). The age at which a person becomes an adult is currently 18 and was formerly 21 (see section 1 of the Family Law Reform Act 1969). Children convicted of criminal offences are treated differently from adults when it comes to sentencing, because their lack of maturity is recognised as likely to have the consequence that they are less culpable than an adult would be or because reformative measures may be more effective in their cases: see V v United Kingdom (1999) 30 EHRR 121. A judge tasked with sentencing a child or young person is therefore required to follow well-established principles which have essentially been codified in guidance given to sentencing courts, first in November 2009, in the “Overarching Principles—Sentencing Youths” definitive guideline issued by the Sentencing Guidelines Council; and subsequently in 2017, in guidance given by the Sentencing Council on Sentencing Children and Young People (“the Guideline”) which must be followed unless it would be contrary to the interests of justice to do so (section 59 of the Sentencing Act). In short, the sentencing judge must have regard to the aim of preventing offending by children and young people, to the welfare of the child or young person (paras 1.1 and 1.11 of the Guideline) and to the fact that children and young people are not fully developed and have not attained full maturity which can impact on their decision making and risk taking behaviour (para 1.5 of the Guideline); must consider the need to avoid criminalising children and young people unnecessarily (para 1.4 of the Guideline) and that the impact of punishment is likely to be felt more heavily by a child or young person in comparison to an adult as any sentence will seem longer due to their young age, and penal interventions may interfere with a child or young person’s education and should be considered by a court at sentencing (para 1.8 of the Guideline). 84. More specifically, section 4 of the Guideline sets out the central elements when sentencing a person aged under 18. In relation to age and maturity, para 4.9 of the Guideline notes that the consideration of age is different when sentencing children and young persons as compared with adults, and that even in response to children and young persons, the response of the courts is likely to be very different depending on whether the child or young person is at the lower end, or in the middle, or towards the top of the age bracket. Section 6 deals with an offender who crosses a particular age threshold between commission and sentencing for the offence, such as a person who was a child or young person at the time of commission of the offence, but who is an adult at the date of sentencing, which can result in the maximum sentence on the date of conviction being greater than that available on the date on which the offence was committed (primarily when the offender turns 12, 15 or 18). In those circumstances, the Guideline requires the sentencing court to “take as its starting point the sentence likely to have been imposed on the date at which the offence was committed. This includes young people who attain the age of 18 between the commission and the finding of guilt of the offence …” (para 6.2). 85. It follows that the general approach to age in the criminal justice context is that the age of an offender at the date of conviction will in almost all cases determine the broad approach to sentencing (with detention at His Majesty’s pleasure being an exception to that general approach). It will also determine the type of custodial sentence (be it detention and training, detention, imprisonment or some other order) to be imposed (assuming that only a custodial sentence will be appropriate). In terms of the institution in which the offender will serve his or her sentence, a child will not be held at the same institution as a person approaching their 21st birthday; and once an offender is 21 the only custodial sentence available is one of imprisonment. 86. So far as sentence length is concerned, the critical factor is the seriousness of the offending. The sentencing judge must consider the culpability of the offender as at the date of the offence rather than the date of conviction or sentence: para 6.2 of the Guideline and inevitably the offender’s age will be highly relevant in determining his or her culpability. 87. These, rather than minimum term reviews, are the means by which the welfare of child offenders is respected in the criminal justice system. They apply as much to sentences of detention during His Majesty’s pleasure imposed on a child offender since the enactment of the section 27A scheme as before. Unlike section 82A, section 27A made no change to any aspect of the sentencing exercise for those who commit murder as a child and are sentenced to detention at His Majesty’s pleasure by the sentencing court. These offenders, whether under or over 18 at the date of sentence, continue to be treated differently from those who offend as adults in the respects summarised above. The only change made by section 27A is to exclude the opportunity to apply for a minimum term review for those sentenced to detention during His Majesty’s pleasure when aged 18 and therefore sentenced as adults. It follows that section 27A respects the well-established distinction drawn between children and adults in the criminal justice system. It draws a bright line in relation only to minimum term reviews for offenders aged 18 and over at the date of sentence, the age recognised in criminal law for treating a person as an adult. 88. The second factor indicating a low intensity of review is the fact that section 27A is a provision of primary legislation enacted by Parliament. As such, it reflected a conscious legislative choice to amend the detention during His Majesty’s pleasure regime by providing by virtue of section 27A(1) and (11) of the 1997 Act, that there is no right for an offender serving a sentence of detention during His Majesty’s pleasure imposed when aged 18 years or older to apply for a review of the minimum term. In addition, the legislation was enacted relatively recently in 2022. 89. Thirdly, section 27A concerns an aspect of prison and penal policy that arises in the context of the administration of justice and the criminal justice system. It goes well beyond the individual factual circumstances of a particular offender’s case and calls for a judgement to be made balancing the interests of the families of victims on the one hand (and the extent to which they should be involved in the criminal justice process) and those of offenders on the other, together with how these issues impact on society as a whole. The judgement is one of social policy, involving questions of moral and political judgement, which is the province of the legislature and in relation to which the margin of appreciation is wide: see In re JR123 [2025] UKSC 8; [2025] AC 1256, para 49; and further R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27; [2021] 1 WLR 3746, para 83; R (SC) paras 115(2), 118, 129(2) and 159. 90. We do not accept Mr Fitzgerald’s submission that this case is concerned not with penal policy but with a measure concerned with deprivation of liberty and arbitrary detention. In support of this submission, he emphasises what was said in Clift (para 62) about “the fundamental importance of the guarantees contained in article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities”. He also submits that the intensity of review is further heightened by the complaint of arbitrary detention both because the effect of the differential treatment is arbitrary, and because the absence of an effective review mechanism for the appellant’s cohort risks arbitrary detention. Since protection from arbitrariness is at the core of the protection afforded by article 5, he submits that although in principle a wide margin of appreciation applies in questions of prisoner and penal policy, the court must nonetheless exercise close scrutiny where, as here, there is a complaint that domestic measures have resulted in detention which was arbitrary or unlawful: Clift, para 73. 91. The concern about arbitrary detention raised in Clift has no application to the present case. Clift concerned the lawfulness of continued detention following a recommendation to release from the Parole Board for a small group of prisoners (those serving sentences of 15 years or more) who, in addition to obtaining a positive recommendation from the Parole Board, had to secure the approval of the Secretary of State (paras 67–68 and 77). The applicant in Clift was in an analogous position to the other groups of prisoners identified in that case since the methods and means of assessing and addressing risk were in principle the same for all categories of prisoners (para 67) and accordingly, absent objective justification, the scheme would run counter to the need to protect individuals from arbitrary detention. The problem ultimately identified by the Strasbourg court in this regard was that any distinction in treatment between the applicant and the other groups of prisoners identified could only be justified where it actually achieved the legitimate aim pursued, and that had not been established. Rather, as the Strasbourg court held (para 77), the “differential treatment of prisoners serving fifteen years or more, whose release continued to be dependent on the decision of the Secretary of State, had become an indefensible anomaly, as the assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task which was at the relevant time recognised to have no political content and one to which the Secretary of State could not, and did not claim to, bring any superior expertise”. 92. The Strasbourg court’s conclusions about arbitrary detention in Clift were directly linked to factual assessments of the risk posed by a prisoner eligible for early release. By contrast, the present case is not concerned with factual assessments of risk posed by early release and the resulting potential for arbitrary continued detention for those to whom a requirement for approval by the Secretary of State was required even after the Parole Board recommended release in their case. The question here is quite different and raises wider policy and fair balance considerations that are simply not linked to the arbitrariness of an offender’s detention or the facts of their detention but are concerned with a penal policy question about the circumstances in which a minimum term review should be available to offenders sentenced to detention during His Majesty’s pleasure. The points of distinction drawn by the Strasbourg court in Stott v United Kingdom (2023) 78 EHRR 29, para 102, between that case and Clift are pertinent here. Moreover, we have explained (above paras 64–69) why the removal of an opportunity to apply for review of the minimum term for Mr Quaye’s cohort does not itself result in arbitrary detention. 93. The fourth factor is that there is nothing to suggest any consensus across contracting states that offenders who commit murder as children and are sentenced to indefinite detention with a minimum term should in all cases have the right to apply for a minimum term review without any age cut-off. As this court has made clear, where there is no consensus within the member states of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider: In re JR123, para 50; R (SC), paras 115(3) and 129(3). 94. The fifth factor is that the legislation reflects Parliament’s conclusion as to where the balance should lie as between the interests of offenders who commit murder as children who might wish to have as many opportunities as possible to review a minimum term; and, the interests of victims’ families who, as Parliament was informed, constitute a group that is negatively affected by the process of reviewing minimum terms and might wish for finality in relation to the sentencing of the offender who killed their family member. The need to strike a balance between the interests of families of victims and those of offenders is an important feature of section 27A and in general, there is “a wide margin if the state is required to strike a balance between competing private and public interests or Convention rights”: In re JR123, para 54. 95. It follows that the factors relied on by the appellant as serving “to heighten the intensity of review” were not “erroneously ignored and/or dismissed” by the Court of Appeal. Rather, these points were considered but found not to have the effect contended for. The result as we have indicated is that when assessing the proportionality of this legislation the margin is wide. (b) Whether the legislation has a legitimate aim 96. Against that background, we turn to consider the question of objective justification. What must be justified is the difference in treatment arising from the impugned provision: R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27; [2021] 1 WLR 3746 at para 80. The test to be adopted is the well-established test set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700. 97. The aim or purpose of legislation is primarily to be deduced from the terms of the legislation itself, but it is common ground that a published white paper is admissible material in identifying the mischief to be addressed by the legislation and therefore its aim or rationale. The aim of the section 27A scheme is clear from its terms: those aged 18 or over when sentenced to detention at His Majesty’s pleasure cannot apply for a minimum term review (section 27A(1) and (11)), while those already serving a sentence of detention during His Majesty’s pleasure and aged under 18 when sentenced may make an application for a minimum term review after serving half the minimum term fixed by the court (section 27A(1) and (2)). In other words, the aim is to remove or reduce the opportunities for these offenders to apply for a minimum term review. 98. The reason for this is expressly identified in the White Paper (discussed at paras 49–50 above). Families are contacted every time an offender applies for a review and are given the opportunity to provide a new Victim Personal Statement, a process which in many cases causes them to relive the circumstances of the crime and to feel as though they should advocate again for justice for their family member. A fair reading of this document shows that the concern was not limited to reducing the number of continuing reviews but was about removing the right to apply for a review altogether in certain situations because, as para 328 makes clear, the very “existence of the review procedure” could be “extremely distressing”, and this was also the case where there was “the opportunity for continuing reviews after the halfway point” (see also para 329, set out above at para 49). 99. This was a consideration Parliament was entitled to regard as powerful. It was downplayed by the Divisional Court and in the submissions made by Mr Fitzgerald. The Code of Practice for Victims of Crime in England and Wales (presented to Parliament pursuant to section 33 of the Domestic Violence, Crime and Victims Act 2004) introduced guidance, including at para 7.9 about the use of Victim Personal Statements in parole hearings or tariff (minimum term) review hearings. The code says, “You can ask that your original Victim Personal Statement be used at tariff review hearings and at Parole Board hearings. However, you are entitled to write a new Victim Personal Statement for these hearings, where you are able explain how the crime continues to affect you and/or your family, and the impact that any outcome at one of these hearings may have on you. …” (para 7.9). This no doubt explains why families of victims are contacted every time an offender applies for a review and are given the opportunity to provide a new statement. 100. We regard it as obvious and inevitable that the existence of a review process is liable to be extremely distressing to victims’ families. As the Court of Appeal observed (para 139), the family will have experienced the murder of a member of their own family. They will have seen the court fix the minimum term that the offender must serve before being considered for release on licence. That will be based on the seriousness of the offence, in other words the harm caused and the culpability of the offender. If that offender applies to have that minimum term reduced, with a view to seeking parole and being released on licence earlier, then the family must, as a matter of fairness, be informed of that, with the consequent distress to the victim’s family that will cause. The Victim Personal Statement is an integral part of the minimum term review, but whether or not the Victim Personal Statement itself has an impact on the outcome of the minimum term review is unlikely to affect the nature of the families’ engagement with that process, nor is it likely to diminish their experience of distress. We do not therefore agree with the Divisional Court (para 57) that the fact that families of victims have a more significant role at the Parole Board stage than in minimum term reviews means the effect upon them of a single review of the minimum term will be modest. We would have thought that the possibility of a reduction in the minimum term to be served by the offender in consequence of a minimum term review will be at least of equal if not greater concern to the family. 101. It follows in our view that the aim of alleviating that distress by reducing the opportunities for offenders to apply for a review of their minimum term is a legitimate aim. (c) The means adopted 102. The means by which the aim was achieved involved enacting primary legislation providing for a bright line cut-off at age 18 when sentenced. For offenders in this group, who began or begin their sentences as 18-year-old adults, they are no longer eligible to apply for a review (though there are limited transitional provisions introduced by section 128(3) and (4) of the Police, Crime, Sentencing and Courts Act 2022, discussed at para 57 above). Those who are (or were) under 18 when sentenced, ie aged 10 to 17, continue to have at least one opportunity to apply for a review (and possibly, but likely only in rare cases, a second review if still children when the time for applying for a second review arose). The review considers whether their progress in detention and any serious risk to that progress justifies reducing the minimum term. 103. There is no principled objection to the drawing of bright lines in this context: see Clift, para 76. It is also relevant to note that a minimum term review is not available to any other adult offender aged 18 or older. So, the default position is that no review is available for adult offenders in the criminal justice system rather than the other way around. The bright line drawn at age 18 is to be viewed in that context. 104. We also note that no such review is available for child offenders convicted of other serious offences. For example, detention for life is imposed on a child aged under 18 at the date of conviction (and potentially therefore sentence) under sections 250 and 258 of the Sentencing Act, following conviction for a Schedule 19 offence including soliciting murder, conspiracy to commit murder, as well as attempted murder and section 18 wounding with intent, but there is no opportunity for any kind of minimum term review for these offenders. Mr Quaye cannot (and does not) suggest that such a review is required by article 5 for offences which may in substance be equally serious, even when committed by children. 105. Moreover, drawing a bright line distinction based on being 18 at the date of conviction or sentence is a recognised feature of sentencing and the criminal justice system. As we have explained above, in almost all cases, the type of custodial sentence which may be imposed on a young person depends on their age at the date of conviction: see for example, section 234 of the Sentencing Act which provides for a “detention and training order” for offenders “aged under 18, but at least 12, when convicted …”; section 262 of the Sentencing Act which provides that any custodial sentence for offenders aged at least 18 but under 21 at the date of conviction is detention in a young offender institution unless the court is required to pass a sentence of custody for life or a sentence of detention during His Majesty’s pleasure; and “custody for life” available for offenders aged 18–20 when convicted: sections 272–276 of the Sentencing Act. The only exception is the sentence of detention during His Majesty’s pleasure in section 259 of the Sentencing Act, where the availability of the type of sentence (DHMP) is dictated by the offender’s age at the date when the offence was committed. 106. Further, the Guideline must be followed when sentencing children or young people, again as we have explained above. 107. It follows that differentiation in the criminal justice system on the grounds of age is neither “arbitrary” nor capricious. Rather, it is the rational approach. Differentiating by reference to age at the date of sentence is likewise rational: the minimum term is set at the date of sentence, and accordingly, if there is to be differentiation as to the availability of a review of that minimum term on the grounds of age, then age at the date of sentence is the obviously relevant age. 108. The effect of the section 27A scheme is plainly not, as Mr Quaye suggests, to “treat those [in the appellant’s position] as akin to fully developed adult offenders, to whom welfare principles, rehabilitative considerations and the differentiated approach otherwise relevant to child offenders simply do not apply”. To repeat, section 27A made no change to the sentencing process undertaken by the court in these cases; the full panoply of protection for child offenders continues to apply, save only for the right to request a minimum term review at the halfway stage. The court adopts precisely the same approach to sentencing by reference to the age of the offender at the date of commission of the offence with the starting point statutorily defined by reference to that age, together with the circumstances of the offender at the date of sentence, and including where relevant, due consideration of the welfare principle. Their reduced culpability as child offenders subject to the mandatory sentence of detention during His Majesty’s pleasure is reflected in the length of the minimum term that is fixed by the court by reference principally to the seriousness of the offence (in other words, the culpability of the offender and the harm caused). 109. We acknowledge that the clear purpose of the minimum term review is to cater for maturation and development. Moreover, as the Secretary of State correctly accepts, a child’s entry into adulthood is not a single event at 18 but rather a process of maturation and neurological development lasting into the 20s, and even in some cases longer. The White Paper addressed this, making clear that the underlying purpose of a minimum term review does not apply with the same force to adults, because, in general, “adults do not go through the same accelerated development and maturation that children do”: para 329. Plainly, that purpose is most necessary where the child offender is sentenced at age 10 or 11 and will change and develop significantly post sentencing so that all the protective features surrounding the sentencing of children are engaged and the availability of a review provides important protection. It is least necessary when the child offender is an adult at the date of sentence when some of those protective features are not engaged at all: for example, an offender who was a child at the date of the offence but is sentenced as a middle-aged adult. The killers of Stephen Lawrence are an example: they were under 18 when they killed him but were sentenced to DHMP in their mid-30s and had no need for a review. 110. It is difficult to see any objection in principle to removing the minimum term review for young adults once it is accepted (as we have explained above, paras 60–61) that section 82A made fundamental changes to the sentence, and that, together with the changes introduced by the section 27A scheme, mean that there is no longer anything intrinsic in a sentence of detention during His Majesty’s pleasure that imports a duty to have a continuing review of the minimum term. The question is not therefore about whether to set a bright line at all but becomes whether it is right to set the bright line at 18 or whether an older age (catering for further maturation) is appropriate. 111. In our judgment the thrust of the change introduced by section 27A is consistent with the underlying rationale for detention during His Majesty’s pleasure and it was permissible for Parliament to proceed on the basis that the underlying purpose of a minimum term review does not apply with the same force to those aged 18 or over (adults) who do not continue to go through the same accelerated process of development as children do. This is not a proposition that had to be supported by evidence (as the Divisional Court suggested, para 50). As this court made clear in R (SC), “Parliamentary methods of resolving disputes are very different from judicial methods, aimed at the production of decisions arrived at by an independent and transparent process of reasoning” (para 169)). The will of Parliament finds its expression solely in the legislation which it enacts (para 167). No reasons are given by Parliament, and “the decisions which Parliament takes are not necessarily capable of being rationalised in any event” (para 168). 112. Moreover, the cases of R v Peters [2005] EWCA Crim 605; [2005] 2 Cr App R (S) 101 and R v Clarke (Morgan) [2018] EWCA Crim 185; [2018] 1 Cr App R (S) 52 (relied on by the Divisional Court) were concerned with a different question, namely the impact of the age of the offender on his or her culpability. Neither case contradicts an approach to maturation which identifies that there is ongoing development beyond the age of 18, while at the same time recognising that, in general, the period of accelerated development and maturation occurs as a child (aged 0–17, or even 10–17), rather than as an adult (18–25). It is also important to ensure that the question of culpability at age of sentence is not confused with the availability of a minimum term review. The two are different. Culpability is considered when the minimum term is fixed. In assessing culpability, the sentencing court necessarily considers the maturity of the offender at the date of commission of the offence. That is true of all offenders, whatever their age at the date of the offence. Furthermore, sentencing in cases of murder takes place within the framework of Schedule 21 which fixes starting points for murder in the case of adults and children (at the date of the commission of the offence) and provides for adjustments taking account of aggravating and mitigating factors, which specifically include the age of the offender. 113. We were referred in the course of argument to Hansard. But this was simply to show that Parliament made its own judgement on the appropriate age at which to draw the line for making available a minimum term review in cases of detention during His Majesty’s pleasure. That is appropriate. Where it can be inferred that Parliament formed a judgement that a particular legislative provision was appropriate notwithstanding its potential impact upon interests protected by Convention rights, then that may be a relevant factor in the court’s assessment, because of the respect which the court will accord to the view of the legislature: see R (SC), para 180. But, as Lord Reed explained, it is important to go no further than “ascertaining whether matters relevant to compatibility were raised during the legislative process”, and “trawling through debates should not, therefore, be necessary, and is unlikely to be appropriate: a high level review of whether a topic was raised before Parliament, whether in debate or otherwise, should suffice”. Equally, courts must not treat the absence or poverty of debate in Parliament as a reason supporting a finding of incompatibility (see R (SC), paras 183–184). 114. The section 27A scheme involved differentiating between two groups: those aged 18 when sentenced and those who were still children at that point. The very terms of the legislation required Parliament to determine if age at date of sentence was an appropriate differentiating feature and whether that would strike the right balance between the interests of victims’ families and those of offenders. It is also significant that Parliament expressly considered an amendment to the legislation which would have provided for the cut-off to be age 26 (rather than 18) for the opportunity to apply for a review. The amendment was considered and rejected on 10 June 2021. Since the terms of the legislation itself made clear that those who had reached the age of 18 at the time of sentencing would no longer be entitled to a review while those who were entitled to reviews because sentenced as a child, would be restricted to a single review, it can fairly be said that Parliament confronted the precise point in issue in this appeal. Moreover, during the debate points of concern were raised that “those who commit an offence as a child should be treated as a child by the criminal justice system, irrespective of whether they turn 18 by the time they are sentenced”; as to the implications of court backlogs causing delays to sentence; as to the effect of a brightline cut-off at age 18 when sentenced; and that maturation continues beyond 18. Parliament nevertheless enacted section 27A in the terms that it did. 115. Accordingly, the proper starting point for the proportionality assessment is that section 27A pursues the legitimate aim of seeking to balance the interests of families of victims with those of offenders. The means adopted were to draw a bright line distinction based on the age at the time when the offender begins their sentence. There is a rational connection between the aim and the means adopted, which is no more intrusive than it needs to be. It reflects a legislative choice made by Parliament in an area of prison and penal policy that is pre-eminently for Parliament. It also reflected Parliament’s balancing of the competing interests of victims’ families and offenders. The adoption and application of the section 27A scheme should be accorded a wide margin of respect for all the reasons we have given above. The remaining question is whether a fair balance has been achieved (ie whether there is a reasonable relationship of proportionality between the aims and the means employed). (d) Retrospectivity as a feature of article 14 116. There is a further feature of the section 27A scheme that Mr Fitzgerald submits should be considered as part of the proportionality assessment, namely its asserted retrospective effect. He submits that section 27A operates retrospectively and that the unfairness of the retrospective impact on child offenders who have already made exceptional progress to rehabilitate is relevant to the assessment of proportionality. As Mr Fitzgerald put it, even if section 27A has fundamentally altered the nature of detention during His Majesty’s pleasure, those in Mr Quaye’s position still had a legitimate expectation of an opportunity for a minimum term review. His expectations were reasonably conditioned by the universal practice and operation of the criminal justice system which proceeded on the basis that the minimum term element of detention during His Majesty’s pleasure was reducible, and that detainees would be able to apply for review if their progress was sufficiently exceptional. Accordingly, he submits that weighty justification is required given that rights are being retrospectively removed, particularly where the rights denied were (and/or remain) an inherent feature of the special sentence to which Mr Quaye remains subject. There can be no more obvious injustice than to retrospectively increase the harshness of the measure originally imposed on child offenders, in breach of the settled expectations of those sentenced before the introduction of section 27A. 117. Once again, we do not accept Mr Fitzgerald’s argument. First, it is significant that with effect from 18 February 2021 the Revised Policy for detention during His Majesty’s pleasure prisoners was implemented by the published Prison and Probation Service circular entitled “Revision to the existing policy for Minimum Term Reviews for individuals sentenced to [detention during His Majesty’s Pleasure]”. This explained that “from 18 February 2021, Public Protection Group (PPG) are introducing the following changes to the Minimum Term Review policy, for prisoners … These changes affect the eligibility criteria for prisoners that will be invited to apply for such a review at the halfway point of their sentence”. The changes were set out as follows: • “DHMP prisoners aged 18 years or over at the point of sentencing are now no longer eligible to apply for a review of their minimum term at the halfway point of their sentence. Previously, all prisoners sentenced to DHMP were invited to apply for a review of their minimum term, regardless of their age at sentencing. • DHMP prisoners under 18 years at the point of sentencing remain eligible to apply for a review of their minimum tariff at the halfway point of their sentence and will continue to be invited to do so. • Following an initial review for DHMP prisoners under 18 at the point of sentencing, they will now be eligible to re-apply for a further minimum term review only while they remain under the age of 18 years on the day that the application is made. Eligible prisoners can apply every two years from the date of the High Court Decision or where the Secretary of State first gave notice that the application was rejected until they reach 18 years of age.” This meant that the cohort of offenders aged 18 when sentenced to detention during His Majesty’s pleasure lost their opportunity to apply for a minimum term review on and from 18 February 2021. Thereafter, those affected by the introduction of the Revised Policy lost nothing by virtue of the enactment of section 27A. 118. We also note in this regard that, while it is true as Mr Fitzgerald submits, that the White Paper (in common with advice provided to the Secretary of State during the legislative process) wrongly stated (see para 329) that there was no existing legal entitlement to minimum term reviews for those sentenced when aged 18 or over, by the time the legislation was introduced in Parliament as the Police, Crime, Sentencing and Courts Bill on 9 March 2021, the Revised Policy was in place and meant that para 329 of the White Paper accurately reflected the position so that Parliament was not misled. The Revised Policy also meant that the changes made by section 27A were not as significant as they perhaps otherwise might have been and simply put the policy change (ie removing minimum term reviews for those aged 18 or over when sentenced) on a legislative footing. 119. Secondly, and in any event, Mr Quaye and his cohort were not losing a substantive legal right, still less any fundamental right, since there is no “right” to an executive review of any sentence (or any component of it). Rather, they lost an opportunity to apply for executive review under a policy that was liable to and did change. 120. Thirdly, Parliament made express provision to cater to an extent for those who had as a matter of fact reached the halfway point in their detention during His Majesty’s pleasure sentence and received a letter offering them an opportunity to apply for a minimum term review. Section 128(3) of the Police, Crime, Sentencing and Courts Act 2022 addressed the question of retrospectivity by making limited transitional provision for this cohort. Although Mr Quaye had reached the halfway point of his sentence, he had not received a letter offering him the opportunity to apply and had made no application for a minimum term review. He had received no direct promise of an opportunity to apply for a review. In short, he had no right to a review. His expectation (legitimate or not) can only have been of an opportunity to apply for a review under an existing policy (the Policy) that could change in future and did in fact change in February 2021 (leading to the Revised Policy). 121. Against that background, we recognise the thrust of the submission made by Mr Fitzgerald to this extent only: on the offender side of the balance, we understand that it may feel harsh or unfair to remove a benefit that a person expects to have; and that effect may seem harsher than where the benefit is removed for future cases only. We accept that this is relevant to the fair balance assessment but consider that it carries little weight. The critical point is that Parliament considered the fair balance and given the wide margin of appreciation to be accorded in this case, its judgement that the legislation achieved a fair balance is to be respected. 122. As for the further arguments raised by Mr Quaye in relation to fair balance, his repeated reference to a continuing “inherent duty of ongoing review” in all detention during His Majesty’s pleasure sentences is unsustainable for the reasons we have given above. Section 27A is not simply a “side wind” as Mr Quaye suggests. Section 27A(11) expressly provides that “there is no right for any person who is serving a DHMP sentence to request a review of the minimum term other than that conferred by this section”. Accordingly, the legislation unambiguously removes the availability of a minimum term review, and thus any such duty, save as conferred by section 27A. The intended effect of section 27A is clear on its face: it is a complete code that governs the availability of minimum term reviews for offenders serving sentences of detention during His Majesty’s pleasure. The legislation has replaced the power previously exercised under the prerogative and has in that sense occupied the ground. Further, it restricts that availability by conferring a right to seek a review only on offenders who were under 18 at the date of sentence. 123. This does not give rise to uncertainty. An offender serving detention during His Majesty’s pleasure knows what his or her minimum term is; the offender knows whether they are eligible to seek a review of the minimum term; and in any event, knows that his or her suitability for release on licence will be considered once the minimum term fixed by the court has been served. Thus, for example, Mr Quaye was told by the judge that he would be “detained at Her Majesty’s pleasure for a minimum of 15 years. That means you will be held in secure custody for at least 15 years, it may be a lot longer I emphasise that. You will not be released unless and until the Parole Board is satisfied that the risk you pose to the public is manageable in the community”. The expectation of offenders will be conditioned by the minimum term fixed by the court at sentencing and the direction that the early release provisions apply, not by reference to the possibility of requesting a minimum term review based on events occurring after the sentence has been fixed by the court. (e) Proportionality/fair balance 124. The assessment of proportionality in this case ultimately depends on whether Parliament made the right judgement. Just as in R (SC), this question cannot be answered by a process of legal reasoning because there are no legal standards by which a court can decide where the balance should be struck between the interests of victims’ families and the interests of offenders sentenced to detention during His Majesty’s pleasure. Parliament is in a better position than the courts to reflect a collective sense of what is fair in this context and to assess where the balance of fairness lies (see to this effect R (SC), para 208). It follows that the court should be slow to substitute its own view for the political judgement of Parliament in this respect. 125. Balancing the effect on Mr Quaye of being deprived of the opportunity (under a policy liable to change and which had by then already changed) to request a minimum term review against the importance of the legitimate aim in section 27A of reducing the distress of victims’ families by reducing the opportunities for offenders sentenced to detention during His Majesty’s pleasure to seek reviews of the minimum term fixed by the court, we are satisfied that the former is outweighed by the latter. None of the reasons given by the Divisional Court, or advanced on behalf of Mr Quaye, cast any doubt on the assessment made by Parliament that the legislation strikes a fair balance between the rights of offenders in the same cohort as Mr Quaye, the rights and freedoms of others and the interest of the general community. Adoption and application of the regime established by section 27A falls well within the margin of appreciation which is applicable in this context. 126. For all these reasons we would dismiss this ground of appeal. 6. Article 7—retrospective harshening of the appellant’s sentence 127. Article 7(1) provides: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 128. Mr Quaye contends that the change in the law removing the opportunity for his cohort to apply for a minimum term review in order to reduce the tariff imposed by the sentencing judge amounts to the imposition of a harsher penalty within the meaning of the second sentence of article 7(1) than was originally imposed in his case. The Court of Appeal (paras 101–102) did not consider that there was any merit in this aspect of Mr Quaye’s judicial review challenge to the section 27A scheme. We agree with that conclusion for the reasons that follow. 129. Mr Quaye’s argument depends on the availability of a minimum term review being properly treated as modifying the penalty imposed on him for the index offence. The concept of “penalty” in article 7 of the Convention is autonomous in scope. Moreover, the established Strasbourg jurisprudence draws a clear distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of a “penalty”; article 7 applies only to the former (see Kafkaris v Cyprus (2008) 49 EHRR 35, para 142, and Del Río Prada v Spain (2013) 58 EHRR 37, para 83). 130. In the early case of Hogben v United Kingdom (1986) 46 DR 231 the complainant was a convicted prisoner who, as a result of a change in the policy on release on parole, had to serve a substantially longer time in prison than he would otherwise have done. In its decision declaring the application inadmissible, the European Commission of Human Rights reasoned that the applicant’s sentence for the offence of murder committed during a robbery was life imprisonment and that meant the “penalty” for purposes of article 7(1) was that of life imprisonment. It continued: “Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years’ imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the ‘penalty’ which remains that of life imprisonment. Accordingly, it cannot be said that the ‘penalty’ imposed is a heavier one than that imposed by the trial judge.” 131. Similarly, in Uttley v United Kingdom (Application No 36946/03) (unreported) 29 November 2005 the essence of the complaint was that a change in the regime for early release, brought about by intervening legislation (enacted in 1991), had the effect of imposing on the applicant (when he was convicted in 1995) a further “penalty” over and above the “penalty” applicable at the time when he committed the offences (before 1983). Relying on Hogben the Strasbourg court held: “Although … the licence conditions imposed on the applicant on his release after eight years can be considered as ‘onerous’ in the sense that they inevitably limited his freedom of action, they did not form part of the ‘penalty’ within the meaning of article 7, but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed. Accordingly, the application to the applicant of the post-1991 … regime for early release was not part of the ‘penalty’ imposed on him, with the result that no comparison is necessary between the early release regime before 1983 and that after 1991. As the sole penalties applied were those imposed by the sentencing judge, no ‘heavier’ penalty was applied than the one applicable when the offences were committed.” 132. This line of reasoning was confirmed in Kafkaris (cited above) where changes to the prison legislation had deprived prisoners serving life sentences (including the applicant) of the right to remissions of sentence. The Grand Chamber held (para 151): “[A]s regards the fact that as a consequence of the change in the prison law … the applicant, as a life prisoner, no longer has a right to have his sentence remitted, the court notes that this matter relates to the execution of the sentence as opposed to the ‘penalty’ imposed on him, which remains that of life imprisonment. Although the changes in the prison legislation and in the conditions of release may have rendered the applicant’s imprisonment effectively harsher, these changes cannot be construed as imposing a heavier ‘penalty’ than that imposed by the trial court … In this connection, the court would reiterate that issues relating to release policies, the manner of their implementation and the reasoning behind them fall within the power of the member states in determining their own criminal policy … Accordingly, there has not been a violation of article 7 of the Convention in this regard.” 133. Nonetheless, the Grand Chamber also acknowledged (Kafkaris, para 142) that in practice the distinction between a measure that constitutes a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty” may not always be clear cut (see also Del Río Prada, para 85, to similar effect). The court explained that the wording of the second sentence of article 7(1) means that the starting point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Del Río Prada, paras 81–82). In other words, as the Grand Chamber explained in Del Río Prada (para 90): “In order to determine whether a measure taken during the execution of a sentence concerns only the manner of execution of the sentence or, on the contrary, affects its scope, the court must examine in each case what the ‘penalty’ imposed actually entailed under the domestic law in force at the material time or, in other words, what its intrinsic nature was. In doing so it must have regard to the domestic law as a whole and the way it was applied at the material time …” 134. This court considered article 7(1) in Morgan v Ministry of Justice [2023] UKSC 14; [2024] AC 130. In Morgan, at the time of sentencing, a court imposing a determinate sentence was required by statute to specify a period (referred to as the custodial period) at the end of which the offender was to be released on licence. The custodial period was not to exceed one half of the term of the sentence, and it meant the offender would be released automatically on licence after serving one half of the sentence in custody. The provisions governing early release (that is release before the end of the term of the sentence) were subsequently amended for specified terrorist offences so that an offender would only be released after serving two-thirds of the sentence (and only after referral to the Parole Commissioners). The Supreme Court reviewed the case law of the Strasbourg court and concluded that changes in the regime governing the point at which an offender serving a determinate sentence might be released on licence, including those which meant that an offender might serve more of the determinate sentence in custody rather than on licence, involved the execution or enforcement of a penalty, not the penalty itself (which was the determinate sentence imposed by the court). Accordingly, they did not fall within article 7(1) of the Convention. The Supreme Court observed that “the court in performing that task does not amend the term of the sentence of imprisonment which has been fixed by the court … Rather, the court’s task is part of a regime by which prisoners are to be released on licence before serving the full term of the sentence imposed. Accordingly, the court’s task is as to the manner of execution of the sentence which it has imposed” (para 18). 135. Mr Fitzgerald submits that the legislative amendment by section 27A of a judicially imposed sentence, six years after its imposition, is retrospective and has the effect of subjecting Mr Quaye to a harsher sentence because the tariff originally fixed provisionally and capable of later reduction on review, has now been rendered immutable and the right to a review has been altogether removed. By virtue of section 27A, Mr Quaye’s sentence has been substantially transformed from a sentence of detention during His Majesty’s pleasure to an adult mandatory life sentence in all but name. He relies on Del Río Prada and Kupinskyy v Ukraine (2022) 76 EHRR 38 as support for these submissions. 136. The facts of Del Río Prada (described as “quite extraordinary” in the joint partly dissenting opinion of Judges Mahoney and Vehabovic, at para OIII-10) involved an offender sentenced in eight separate sets of criminal proceedings to sentences for terrorist offences, including a number of murders, amounting to over 3,000 years’ imprisonment. Under laws in force at the time, the overall maximum time to be served was 30 years’ imprisonment. Further, there was a right to remission of sentence in exchange for work done. The offender had become entitled to 3,282 days remission (about nine years) in respect of work she had undertaken, and it was understood that those days would reduce the maximum sentence of 30 years. A subsequent change in the case law led to the 3,282 days only being capable of reducing the individual sentences as they were being served which meant, given the combined length of the individual sentences, that the 3,282 days remission would have no practical effect in reducing her sentence. 137. The Grand Chamber (by a majority) held that the practice of the Spanish courts had been to treat the maximum sentence as a “new, independent sentence to which certain adjustments, such as remissions of sentence for work done in detention should be applied” (para 99). Moreover, “days of remission of sentence already granted were deemed to have been served and formed part of the prisoner’s legally acquired rights” (para 101). The court set out the Spanish Prison Regulations (at para 26), and stated “the Spanish legislature considered those rules to be part of substantive criminal law, that is to say of the provisions which affected the actual fixing of the sentence, not just its execution” (para 102). Consequently, the “penalty imposed on the applicant thus amounted to a maximum of thirty years’ imprisonment, and any remissions of sentence for work done in detention would be deducted from that maximum penalty” (para 103). On those facts, it held: “108. That being so, although the court agrees with the Government that arrangements for granting adjustments of sentence as such fall outside the scope of article 7, it considers that the way in which the provisions of the Criminal Code of 1973 were applied in the present case went beyond mere prison policy. 109. Regard being had to the foregoing and to Spanish law in general, the court considers that the recourse in the present case to the new approach to the application of remissions of sentence for work done in detention introduced by the ‘Parot doctrine’ cannot be regarded as a measure relating solely to the execution of the penalty imposed on the applicant as the Government have argued. This measure taken by the court that convicted the applicant also led to the redefinition of the scope of the ‘penalty’ imposed. As a result of the ‘Parot doctrine’, the maximum term of thirty years’ imprisonment ceased to be an independent sentence to which remissions of sentence for work done in detention were applied, and instead became a thirty-year sentence to which no such remissions would effectively be applied. 110. The measure in issue accordingly falls within the scope of the last sentence of article 7(1) of the Convention.” 138. It is clear, accordingly, that the Grand Chamber’s decision turned on the unusual facts of that case, where, as a matter of substantive legal right conferred by the legislature, the maximum 30-year sentence became a new, independent sentence to which there was a right to remission of sentence for work done in detention to be applied. In other words, the law defined the maximum sentence to which the early release rights would apply. The penalty included both. The law then changed and that meant there was a redefining of the scope of the penalty (see para 109 cited above). However, the decision neither alters nor undermines the well-established distinction drawn by the authorities cited above, between penalty and the means of enforcing it; nor the principle that where the nature and purpose of a measure relate exclusively to a change in the regime for early release, this does not form part of the “penalty” within the meaning of article 7 (as the Strasbourg court confirmed in Abedin v United Kingdom (2019) 72 EHRR SE6, para 36; see too Morgan paras 94–96 per Lord Stephens JSC). 139. Similarly, the decision in Kupinskyy v Ukraine does not assist Mr Quaye. The applicant in that case was sentenced in Hungary to life imprisonment for murder with the possibility of release on parole after serving 20 years of imprisonment. Having been deported to Ukraine, the Ukrainian courts recognised that sentence. However, some years later, the district court refused his application for release on parole noting that he was serving his sentence under Ukrainian law which did not provide for release on parole for life prisoners. The Strasbourg court upheld his complaint. It first reiterated the principle established by its case law that a distinction is drawn between a measure that constitutes in substance a “penalty” and a measure that concerns the execution of a penalty, and stating that whether the case concerns a change in the regime for release on parole within the country or as the result of a transfer of prisoners, such a regime relates to the execution of a sentence and thus excludes the application of article 7 (para 47). However, it found this case to be different because the applicant’s penalty had been converted by the change in regime from one allowing release on parole to one that involved no availability of parole at all. As the Strasbourg court described it: “the applicant’s sentence imposed as a result of the conversion is irreducible under current Ukrainian law … Thus, the principal difference between the present case and previous ones concerning the transfer of prisoners … is that those cases concerned the terms for granting parole in the state to which the prisoner was transferred, while in the present case there is an issue of unavailability of parole as a matter of law.” (para 51) 140. The court noted that the relevant Hungarian legislation differentiated between reducible and irreducible life sentences, providing for both; and that the applicant had been sentenced to a reducible life sentence. It then held: “56. The court therefore concludes that by converting the applicant’s original reducible life sentence to one that was irreducible under Ukrainian law, the domestic courts in the particular circumstances of the present case went beyond mere measures of enforcement and changed the scope of the applicant’s penalty. Article 7 is therefore applicable in the present case.” 141. Kupinskyy is entirely consistent with the established approach. A reducible sentence was originally imposed on the applicant. That reducibility was part of his sentence. That changed and the sentence became irreducible. Mr Quaye’s case is different. His “previously reducible sentence” has not been rendered irreducible and thus substantively changed. Unlike Kupinskyy, Mr Quaye and all those sentenced to detention during His Majesty’s pleasure remain subject to a reducible indefinite (or life) sentence with a minimum term fixed by the sentencing court. 142. Applying the principles governing article 7(1) to the present case, the penalty imposed on Mr Quaye following his conviction for murder was a sentence of detention during His Majesty’s pleasure. This is an indefinite or life sentence. When imposing this sentence, the sentencing court determines the minimum term to be served in detention reflecting the seriousness (both culpability of the offender and the extent of the harm caused) of the offence, in accordance with the relevant statutory provisions and case law. The term so fixed gives rise to the possibility of early release on licence once the minimum term has been served and if the Parole Board considers the offender safe to release. The “penalty” for article 7(1) purposes is indefinite detention with a minimum term to be served in detention as determined by the court, and the possibility of early release on licence thereafter. Parliament’s removal of reviews for a category of offender has not altered or redefined the penalty originally imposed by the sentencing court. 143. It follows that section 27A is not a measure which “relates to a change in the penalty imposed” and therefore comes within the test for the application of article 7(1) formulated in Del Río Prada (para 109) and in Morgan (para 104(ii)). Rather, the section 27A scheme relates exclusively to a change in the regime for early release on licence which does not form part of the “penalty” within the meaning of article 7(1). The Policy (in place until February 2021) permitted applications to be made to the Secretary of State seeking a reduction in the minimum term, as an exercise of the prerogative or an act of clemency. A successful application leading to a reduction in the minimum term enabled the offender to apply earlier than otherwise possible to the Parole Board for release on licence. This was not part of the substantive sentencing process. The substance was early release. The application depended on matters occurring after sentence, namely the extent and nature of the offender’s rehabilitation and progress in prison. A minimum term review simply accelerated consideration of early release by the Parole Board. Section 27A(11) removed (or put on a statutory footing the earlier removal of) the opportunity to seek a minimum term review to secure release on licence at an earlier stage if the Parole Board agreed. These features reinforce the inevitable conclusion that the review arrangements had nothing to do with determination of the appropriate minimum term but were concerned with the manner of execution or enforcement of the sentence, including enforcement of the minimum term assessed and fixed by the court at sentencing. Although the changes might have rendered Mr Quaye’s imprisonment harsher, that is a long way from saying that they imposed a heavier “penalty” than that imposed by the sentencing court. 144. This is also the answer to Mr Quaye’s argument based on what was said in Del Río Prada (para 91) about the requirement of foreseeability in article 7(1). There is and can be no dispute that the sentence of detention during His Majesty’s pleasure with a minimum term of 15 years and the possibility of early release was a penalty that met the qualitative requirements of accessibility and foreseeability. The Strasbourg court has made clear that changes to the execution or enforcement of a penalty do not fall within the scope of article 7(1) of the Convention and that contracting states are free to determine their own criminal policy in respect of such changes. Put another way, where, as here, a measure relates to the execution or enforcement of a penalty, the measure does not fall within the concept of “law” in article 7(1). As such, a measure relating to the execution or enforcement of a penalty is not subject to the qualitative requirements under article 7 including foreseeability: see Morgan, para 104. 7. Conclusion 145. For all these reasons, sections 27A and 27B of the 1997 Act are compatible with articles 5, 7 and 14 read with article 5 of the ECHR. The provisions do not involve arbitrary or unlawful detention contrary to article 5. Nor do they have the effect of imposing a heavier penalty than the one that was applicable at the date of commission of the offence contrary to article 7. The difference in treatment provided for by section 27A is objectively justified. Accordingly, we would dismiss the appeal.

Online platforms could face significant new obligations to verify both the age of child users and the authority of parents seeking to manage their accounts under the European Commission's proposed EU Kids Act.

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LORD DOHERTY (with whom Lord Reed, Lord Stephens, Lady Simler and Lord Hodge agree): Introduction In this appeal the court requires to consider the circumstances in which a party to a contract may recover damages for breach of contract in respect of losses that were sustained by a third party. The First Division of the Inner House held that the transferred loss claims which the appellant (“Forthwell”) advanced in respect of losses suffered by its wholly-owned subsidiaryLynnet Leisure (Rogano) Ltd (“Lynnet”) were ill-founded in law. They dismissed them. A further contention by the respondent (“Pontegadea”) that losses claimed by Forthwell were the subject of mutual insurance and were irrecoverable was rejected by the commercial judge and by the First Division. There is no appeal against that part of the First Division’s decision. On the morning when the appeal hearing was to commence the court was informed that the parties had settled the dispute between them and that Forthwell would move to withdraw the appeal. At the outset of the hearing senior counsel intimated the apologies of all concerned for the lateness of the settlement. The court clarified that the settlement was not dependent upon the court allowing the withdrawal of the appeal. Senior counsel advised the court that a commercial action raising a very similar issue had been sisted (stayed) to await the outcome of this appeal, and that they were fully prepared to proceed with the hearing should the court refuse to allow the appeal to be withdrawn. The court refused the application to withdraw the appeal. We did so because the settlement was not dependent upon the court allowing its withdrawal, and because the appeal raises a point of law of general public importance where authoritative guidance is desirable, in particular because at least one other case is awaiting the decision in this appeal. Senior counsel for each of the parties agreed that the only order required if the appeal succeeds would be to allow the appeal; and that if it is unsuccessful the appeal should be dismissed. The facts The Rogano was one of the oldest and most celebrated restaurants in Glasgow. It first traded in 1874. Successive entities operated the restaurant continuously at 11 Exchange Place from 1935 until it closed in 2020 at the height of the Covid-19 restrictions. It seems particularly fitting that the court was able to hear this appeal while sitting in Glasgow. Forthwell and Pontegadea are the tenant and landlord of the premises at 11 Exchange Place in terms of a lease (“the Lease”) dated 18 and 29 March 1996. Neither was party to the Lease at its inception. The tenant’s interest in the Lease was assigned to Forthwell in August 2013. Forthwell granted Lynnet a licence to occupy the premises (“the Licence”) and Lynnet traded from them as the Rogano Restaurant and Bar. Forthwell does not aver that Pontegadea was aware of the Licence. Clause 8 of the Licence provides that Lynnet cannot oblige Forthwell to carry out any repairs or other works to the premises and that Forthwell will at no time become liable to Lynnet for any loss, injury or damage which Lynnet might sustain from any deficiency in any part of the premises. On 9 and 14 December 2020 and on 10 January 2021 the premises were damaged by flooding and water ingress. A fire broke out after the first flood, rendering the electrical installations unsafe. The premises were left without heating. There is ongoing water ingress. 8. In terms of clause 5.2.2 of the Lease the tenant undertook not to use the premises for any other purpose than as licensed and restaurant premises, and purposes ancillary thereto; or with the consent of the landlord, which consent shall not be unreasonably withheld or delayed, any use falling within Class 3 or Class 5 of the Schedule to the Town and Country Planning (Use Classes) (Scotland) Order 1989 (SI 1989/147). The Lease prohibits sub-letting and the parting with or sharing of possession of the whole or part of the premises (cl 5.3.2, cl 5.3.3.1). It makes provision for assignation of the whole of the tenant’s interest, subject to certain conditions (cl 5.3.3.1). It requires the landlord to rebuild any part of the premises which has been destroyed or damaged by any insured risk (including flooding) (cl 1, cl 13.2). In addition, Forthwell avers that it is an implied term of the Lease that Pontegadea will repair the common parts of the building in which the premises are located. The parties are in dispute as to the nature and scope of the repairs required and as to liability for certain aspects of the repairs. Repairs have not been carried out. As a result, it has not been possible to reopen the restaurant for trading. The commercial action 9. In this commercial action Forthwell seeks specific implement of Pontegadea’s obligations to repair the premises (the first conclusion of the summons), or, in the event of Pontegadea not repairing the premises, damages to enable the repairs to be carried out (the second conclusion). Forthwell also claims damages in respect of Pontegadea’s breach of its obligation to maintain the common parts (the third conclusion). As a result of Pontegadea’s failures to discharge its obligations to repair the premises and maintain the common parts, Lynnet has been unable to trade from the premises. In addition, Forthwell seeks recovery of professional fees and costs it has incurred as a result of Pontegadea’s failure to implement its obligations in terms of clause 13.2 (the sixth conclusion). Pontegadea does not admit that it is in breach of its obligations under the Lease, but it is common ground that a proof before answer will be required to determine whether or not Forthwell is entitled to the remedies which it seeks in the first to third and sixth conclusions. However, Forthwell also sues for past and anticipated future loss of profits said to have been suffered by Lynnet (the fourth and fifth conclusions), which claims Pontegadea maintains are irrelevant (ie ill-founded in law). 10. Forthwell avers in articles 1.1 and 6.6 of the condescendence in the summons: … In the present action, the Pursuer sues: (a) in its own right, in respect of order to enforce obligations owed by the Defender under and in terms of the lease, aftermentioned, in respect of which the Pursuer is vested in the tenant’s part and the Defender is vested in the landlord’s part; and (b) on behalf of a third party, which has suffered loss, injury and damage as a result of the Defender’s breaches of the said lease, in order to recover such losses on behalf of that third party, all as hereinafter more fully condescended upon… 6.6…[A]s a result of the Defender’s ongoing refusal, in breach of its obligations under the Lease, to carry out the necessary works of repair, … Lynnet has … suffered loss, injury and damage, apart from the cost of the necessary repairs. In particular, Lynnet has suffered a loss of profit, in the period between 10th December 2022 (at which time Lynnet’s loss of profit ceased to be covered by a business interruption insurance policy) and 31st March 2023, in the amount of £178,696.94, which is the sum fourth concluded for. Lynnet will continue to suffer a loss of profit until the necessary works are undertaken. On the hypothesis that the necessary works will take sixteen months, Lynnet will suffer a further loss of profit estimated in the amount of £934,056.13 in the period to 31 July 2024, which is the sum fifth concluded for …The Pursuer sues for all the losses that have been sustained as a result of the Defender’s breach of clause 13.2 of the Lease. The Pursuer is as a matter of law bound to account to Lynnett as the party suffering the loss for any of Lynett’s losses that are recovered for its benefit in this action. Lynnet is not a party to the Lease. It cannot sue the Defender for its breaches of clause 13.2. In all the circumstances, the Pursuer is entitled to recover Lynnet’s losses on its behalf. The Licence is res inter alios acta in any question between the Pursuer and the Defender and in respect of assessing the losses caused by the Defender’s breaches of the Lease…” Forthwell’s fourth and fifth pleas-in-law state: Lynnet having suffered loss, injury and damage as a result of the breaches of the Lease on the part of the Defender, and the Pursuer being entitled to recover those losses on behalf of Lynnet, the Pursuer is entitled to reparation therefor. The sums fourth and fifth concluded for being a reasonable estimate of Lynnet’s loss, injury and damage, decree should be pronounced therefor.” It is clear that the sums sought in the fourth and fifth conclusions are for Lynnet’s losses and that those claims are brought on behalf of Lynnet. They are not claims for losses which Forthwell has suffered by reason of breach by Pontegadea of Forthwell’s performance interests under the Lease: they are for the consequential losses suffered by Lynnet. Pontegadea disputes Forthwell’s entitlement to recover damages in respect of any losses suffered by Lynnet. It challenges the relevancy of those claims and seeks dismissal of that part of the action. The basis of the transferred loss claims It is important to be clear as to the basis upon which Forthwell’s transferred loss claims are made. 14. The claims are not advanced upon the narrow ground of The Albazero exception (Albacruz v Albazero (“The Albazero”) [1977] AC 774), as developed and applied in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd; St Martins Property Corpn Ltd v Sir Robert McAlpine Ltd [1994] 1 AC 85 (“St Martins”) and subsequent cases. Under the narrow ground, a contracting party may recover a third party’s loss caused by breach of a contract relating to property where the contracting parties contemplated that the proprietary interest would be transferred to the third party, or where it was otherwise contemplated that loss in respect of the property might be suffered by the third party, as long as the contractual arrangements did not provide for the third party having a direct remedy against the party in breach. Forthwell recognises that its averments do not satisfy that ground’s requirements. Despite suggestions to the contrary (by Lord Clyde in Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518 (“Panatown”), at p 530; by Lord Drummond Young in McLaren Murdoch & Hamilton Ltd v The Abercromby Motor Group Ltd 2003 SCLR 323, at para 35; and by Lady Smith in Marquess of Aberdeen and Temair v Messrs Turcan Connell [2008] CSOH 183; 2009 SCLR 336, at para 45), the narrow ground exception is a rule of implication based upon the intention of the parties rather than a rule of law (Swynson Ltd v Lowick Rose LLP (formerly Hurst Morrison Thomson LLP) [2017] UKSC 32; [2018] AC 313, Lord Sumption, para 14; Lord Neuberger, paras 103–105). Nor are Forthwell’s claims advanced on the broader ground posited by Lord Griffiths in St Martins and favoured by Lord Goff and Lord Millett in Panatown. The essence of that suggested ground is that where a person with no proprietary interest in a property contracts for work or services to be performed in relation to it (for example, a husband instructing work on his wife’s house or a benefactor contracting to restore a village hall) that person has a “performance” or “expectation” interest in the contract being performed. In the event of breach, he suffers loss because he has not got what he contracted for, and because in order to put the property into the state it ought to be in, he would have to incur further expense. The judgments of the commercial judge and of the First Division 16. At a debate before the commercial judge (Lord Braid) Pontegadea submitted that Forthwell is not entitled to recover Lynnet’s losses and that the transferred loss claims should be dismissed. The commercial judge did not agree ([2024] CSOH 59; 2024 SLT 657). He acknowledged (para 24), correctly, that in treating The Albazero exception as arising as a matter of law, rather than something which was in the contemplation of the parties at the time of contracting, Lord Clyde was in a minority of onein Panatown. The commercial judge noted (para 25), again correctly, that Swynson andBV Nederlandse Industrie van Eiprodukten v Rembrandt EnterprisesInc [2019] EWCA Civ 596; [2020] QB 551“appear at first sight to have hammered the nail into the coffin of Lord Clyde’s approach, coming down squarely in favour of the ‘contemplation of the parties’ test.” Nevertheless, so far as the law of Scotland was concerned, he thought that the adoption by Lord Drummond Young in McLaren Murdoch & Hamilton of Lord Clyde’s approach offered a principled and reasoned Scots law solution (para 35).In the commercial judge’s opinion Scots law in relation to transferred loss differs from the law in England and Wales.He considered that in Scots law the position is as stated by Lord Drummond Young in McLaren Murdoch & Hamilton at para 42. In two further Outer House decisions a Lord Ordinary and a commercial judge had agreed with Lord Drummond Young’s approach (Marquess of Aberdeen and Temair, Lady Smith at para 45 and Axon Well Intervention Products Holdings AS v Craig [2015] CSOH 4, Lord Doherty at para 29). Nothing in Swynson or BV Nederlandse Industrie provided any reason for concluding that Lord Drummond Young’s summary of the principles of Scots law is wrong. The transferred loss exception to the general rule that a contracting party can only recover its own loss existed as a matter of policy in circumstances where it would be perceived to be unjust to allow a loss to go uncompensated. It had nothing to do with the contracting parties’ intentions or what was in the contemplation of both of them at the time of contracting. If Forthwell recovered damages for the losses claimed it would be obliged to account to Lynnet for them. The transferred loss claims ought not to be dismissed but should proceed to a proof before answer. 17. Pontegadea reclaimed (appealed). The First Division of the Inner House, by a majority (the Lord President (Lord Carloway) and Lord Pentland, Lord Malcolm dissenting), allowed the reclaiming motion and dismissed the transferred loss claims ([2024] CSIH 38; 2025 SC 127). In the Lord President’s opinion, the claims failed because Forthwell had not sustained the claimed losses (para 37). Even if the narrow or broader ground exceptions to the compensatory principle applied in Scotland, the claims did not meet the criteria for either exception. The Lord President observed (para 38) that Lord Clyde’s solution in Panatown was an obiter dictum, was unvouched by authority, and had not been adopted by the other members of the House. In McLaren Murdoch & Hamilton Lord Drummond Young had accepted Lord Clyde’s solution and, in a further obiter dictum which otherwise appeared to have “emerged from the ether”, he had purported to formulate a rule which applied in Scots law (para 46). The Lord President observed that in an appropriate case there may require to be a deeper analysis of where the transferred loss concept comes from in Scots law (para 47). Lord Pentland agreed with the Lord President’s opinion (para 93). However, for his part he did not understand Lord Drummond Youngto have been of the view that Scots law on transferred loss differs from the law of England and Wales. Rather, Lord Drummond Young purported to be following the approach of the majority in Panatown (para 98). Forthwell’s pleaded case did not fall within the parameters of any of the tests for applying the principle of transferred loss in Scots law or in the law of England and Wales (para 100). At the time the Lease was entered into there was no common contractual intention to benefit Lynnet or indeed any third party (para 102). The terms of the Licence precluded Forthwell being liable to account to Lynnet for damages recovered in respect of Lynnet’s loss of profits (para 103). 19. In a dissenting opinion Lord Malcolm highlighted reasons why there might be different outcomes in relation to transferred loss under Scots law and English law (paras 55–56). Scots law has no doctrine of consideration; it has long recognised that third parties can have rights arising from promises in a contract between other persons; and there may be a greater emphasis on privity of contract in England and Wales. Lord Clyde’s “realistic and practical solution” recognised the contracting party’s entitlement to performance of the promise made to them and avoided a windfall benefit to an undeserving promisor (para 59). Lord Malcolm agreed (para 91) with the commercial judge’s view in para 35 of his opinion that Lord Drummond Young “offered a reasoned Scots law solution to the problem, recognising, as had Lord Clyde, that the right of the contracting party to sue was conferred as a matter of general legal policy to ensure that if loss results from a breach of contract it can be recovered from the party responsible for the breach”. Like the commercial judge, Lord Malcolm was not persuaded that Scots law should be aligned with what was said in Swynson and BV Netherlandse Industrie. Forthwell’s submissions in this appeal 20. It bears repetition that Forthwell’s transferred loss claims are not founded on the narrow ground or the broader ground. They are based squarely on Lord Clyde’s suggested solution in Panatown, which Lord Drummond Young in McLaren Murdoch & Hamilton considered was part of Scots law. Forthwell submitted that the court should endorse that approach. It had been followed in Marquess of Aberdeen and Temair and Axon Well. It was a just solution and it was in accordance with the fundamental principles of Scots law, as Lord Drummond Young, Lord Braid and Lord Malcolm had recognised. Such a claim should only be available where the contracting party had “a material interest” in the loss suffered by a third party (eg in cases involving family or corporate groups). That would be a robust delimiting factor, and the usual rules relating to remoteness and reasonableness would also apply. Forthwell had a material interest in the losses suffered by Lynnet. Lynnet had a close connection with the Lease.Pontegadea must have contemplated that “the restaurant trader” would suffer a loss of profits if Pontegadea breached its repairing obligations. Panatown In Panatown the employers under a building contract sued the contractors for breach of their contractual obligations. The site and the building were owned by another company (“UIPL”) in the same group. In terms of the building contract, the contractors were obliged to grant a duty of care deed (“DCD”) in favour of UIPL which they duly did. Panatown advanced a transferred loss claim to recover damages for defective work and delay. They relied on both the narrow ground and the broader ground. The court, by a majority of three to two, held that Panatown were not entitled to recover the damages claimed. However, the reasoning of each of the judges making up the majority differed in significant respects. Lord Goff of Chieveley and Lord Millett dissented. Both would have upheld the claim on the broader ground. The critical consideration for each of the judges making up the majority was the fact that UIPL had a direct contractual remedy (the DCD) against the contractors. In their view the provision of that remedy to UIPL meant Panatown could not succeed under either the narrow ground (Lord Clyde at p 531A–D; Lord Jauncey of Tullichettle at p 568C–G; Lord Browne-Wilkinson at pp 576H–577B (on which point Lord Goff agreed, at p 558C–F)) or the broader ground. 23. Lord Clyde observed that the solution “may carry with it some element of artificiality and may not be supportable on any clear or single principle” (p 535D). At p 535E–F he proffered his proposed solution, which he preferred to the broader ground: “It seems to me that a more realistic and practical solution is to permit the contracting party to recover damages for the loss which he and a third party has suffered, being duly accountable to them in respect of their actual loss, than to construct a theoretical loss in law on the part of the contracting party, for which he may be under no duty to account to anyone since it is to be seen as his own loss.” Lord Clyde reasoned (pp 535F–536E) that in order to avoid a legal black hole the law should deem the innocent party to be claiming on behalf of himself and any others who have suffered loss. While the third party might not be able to compel the innocent party to sue, that was unlikely to be a problem in domestic or familial situations or where the parties were companies in the same group. How members of families or groups of companies chose to arrange their affairs should not be a matter of “necessary concern” to a contracting party who had undertaken to one of their number to perform services in which they all had some interest. However, where, as in Panatown, the contracting parties had agreed what the third party’s remedy should be, there was no scope for a transferred loss claim being admitted. None of the other members of the court expressed concurrence with Lord Clyde’s solution. It is inconsistent with the reasoning of the other judges forming the majority. Swynson 25. In Swynson the Supreme Court had a further opportunity to consider the question of transferred loss. During 2006 and 2007 the claimant (Swynson), a lending company, made three loans to a borrower (“EMSL”) relying on a due diligence report prepared by the defendant firm of accountants (“HMT”). Swynson was owned and controlled by Michael Hunt. In July 2008 Mr Hunt also acquired control of EMSL. Swynson claimed damages for the defendant’s breach of contract in negligently preparing the report. However, EMSL repaid the first two loans using money lent to it by Mr Hunt. Had those loans by Swynson not been repaid Swynson would have been assessable to tax on the interest payments due from EMSL notwithstanding that they were not being made (because Swynson and EMSL were close companies). Moreover, Mr Hunt took the view that it was disadvantageous for Swynson to have a large non-performing loan on its books. One argument raised by Swynson was that it was entitled to recover Mr Hunt’s loss on the principle of transferred loss. Lord Sumption delivered the leading judgment with which the other members of the court agreed. Lord Mance delivered a concurring judgment, dealing with transferred loss at paras 52–54. Lord Neuberger also gave a concurring judgment, with which Lord Clarke agreed. He discussed transferred loss at paras 101–108. 27. Lord Sumption began by observing (para 1): “The distinct legal personality of companies has been a fundamental feature of English commercial law for a century and a half, but that has never stopped businessmen from treating their companies as indistinguishable from themselves. Mr Michael Hunt is not the first businessman to make that mistake, and doubtless he will not be the last.” At para 14 he explained: “The principle of transferred loss is a limited exception to the general rule that a claimant can recover only loss which he has himself suffered. It applies where the known object of a transaction is to benefit a third party or a class of persons to which a third party belongs, and the anticipated effect of a breach of duty will be to cause loss to that third party. It has hitherto been recognised only in cases where the third party suffers loss as the intended transferee of the property affected by the breach…” 28. His Lordship noted that the paradigm case was The Albazero exception. At p 847 of that case, Lord Diplock had made clear that the exception was based upon the common intention of the contracting parties. Lord Sumption observed (para 15) that in St Martins this rationale was extended to contracts generally, and Lord Griffiths had proposed the broader ground exception. He continued: “16. It is, however, important to remember that the principle of transferred loss, whether in its broader or narrower form, is an exception to a fundamental principle of the law of obligations and not an alternative to that principle. All of the modern case law on the subject emphasises that it is driven by legal necessity. It is therefore an essential feature of the principle that the recognition of a right in the contracting party to recover the third party’s loss should be necessary to give effect to the object of the transaction and to avoid a ‘legal black hole’, in which in the anticipated course of events the only party entitled to recover would be different from the only party which could be treated as suffering loss: see Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518, 547–548 (Lord Goff of Chieveley), p 568 (Lord Jauncey of Tullichettle), pp 577–578 (Lord Browne-Wilkinson), and pp 582–583 (Lord Millett). That is why, as the House of Lords held in this last case, it is not available if the third party has a direct right of action for the same loss, on whatever basis.” (Emphasis added.) The court considered that there was much to be said for the broader ground but that it was not necessary to decide the point: neither the broader nor the narrow ground could apply on the facts because it was no part of the object of the engagement of HMT or indeed of any other aspect of the transaction to benefit Mr Hunt (Lord Sumption, para 17; Lord Neuberger, para 106). BV Nederlandse Industrie In BV Nederlandse Industrie van Eiprodukten v Rembrandt Enterprises Inc Coulson LJ (with whom the other members of the court agreed) recognised (para 62) that in Panatown Lord Clyde had suggested a different solution to the narrow or broader grounds favoured by his colleagues. The claim in BV Nederlandse Industrie was based on the broader ground. Coulson LJ considered that “[f]ollowing the clear guidance in Swynson” the broader ground was “good law” (para 70). In fact, as already noted, what this court said in Swynson was that it considered there was much to be said for the broader ground but that it was not necessary to decide the point. Nonetheless, the Court of Appeal correctly recognised that, for either ground to be satisfied, at the time of contracting the parties should have intended that there would be a third party benefit. Does Lord Clyde’s solution represent the law of England and Wales? Lord Clyde’s solution was not endorsed by any of the other members of the Appellate Committee in Panatown. None of the judgments in Swynson provides any support for it. Neither does Coulson LJ’s judgment in BV Nederlandse Industrie, with which the other members of the Court of Appeal agreed. The solution is inconsistent with the requirement that it should have been in the contemplation of the parties at the time of contracting that the contract was intended to benefit the third party or at least persons in the same position as the third party. It is very clear that Lord Clyde’s solution does not represent the law of England and Wales. The Scottish cases 32. In McLaren Murdoch & Hamilton the pursuers, an architects’ practice, sued the defenders to recover outstanding fees. The defenders counterclaimed for loss said to have been caused by breach of contract and negligence on the part of the pursuers. The pursuers submitted that some of the loss claimed had not been incurred by the defenders but by another company (“Carden”) in the same group to which a showroom and workshop (“the Fiat showroom”) had been transferred by the defenders pursuant to a lending agreement in May 2000. The Fiat showroom had been completed by 1996. Defects in the heating system soon became apparent. Lord Drummond Young held (para 34) that the defenders sustained loss as soon as the building was completed, at which time they owned it. The subsequent involvement of Carden was collateral and res inter alios acta. It followed that the defenders were seeking to recover their own loss, not a loss which had been sustained by Carden, and the issue of transferred loss did not arise. However, in case those conclusions were wrong he opined (obiter) that the defenders would have been entitled to recover the loss on behalf of Carden. 33. Lord Drummond Young’s discussion of the circumstances in which a transferred loss claim may be possible begins at para 33 of his opinion: “[I]n in a well-regulated legal universe blackholes should not exist. Nevertheless, the basis in principle on which recovery can be achieved in such cases has been the subject of some disagreement. The matter has been considered at length by the House of Lords in a number of English cases, notably The Albazero; Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd;St Martin’s Property Corporation Ltd v Sir Robert McAlpine Ltd; and AlfredMcAlpine Construction Ltd v Panatown Ltd. While those cases turned to some extent on specialties of English law, they provide some guidance as to the manner in which Scots law might approach the problem of the black hole. That is particularly true of the speech of Lord Clyde in the most recent case, AlfredMcAlpine Construction Ltd v Panatown Ltd, which considers the underlying principles in detail and indeed makes reference to Scots law.” 34. At para 35, Lord Drummond Young outlined the circumstances in which The Albazero exception applied in England and Wales. At para 36 he referred to its extension to other contracts in the St Martins case. At para 38 he noted Lord Clyde’s acknowledgement (at pp 534–535) that in jurisdictions where the law included the jus quaesitum tertio (a right acquired by a third party), such as Germany and Scotland, the availability of that remedy might provide a solution to the problem of the legal black hole; but that it was not available in England where the jus quaesitum tertio was not recognised at common law. He continued (para 38): “In the absence of any remedy using the jus quaesitum tertio, Lord Clyde concluded, in a passage that sums up the views of the majority of the House of Lords, that the best solution was: ‘to permit the contracting party to recover damages for the loss which he and a third party has suffered, being duly accountable to them in respect of their actual loss....The solution is required for the law will not tolerate a loss caused by a breach of contract to go uncompensated through an absence of privity between the party suffering the loss and the party causing it. In such a case, to avoid the legal black hole, the law will deem the innocent party to be claiming on behalf of himself and any others who have suffered loss. It does not matter that he is not the owner of the property affected, nor that he has not himself suffered any economic loss. He sues for all the loss which has been sustained and is accountable to the others to the extent of their particular losses.... If there is an anxiety lest the exception would permit an employer to receive excessive damages, that should be set at rest by the recognition of the basic requirement for reasonableness which underlies the quantification of an award of damages’ ([2001] 1 AC 535).” (Emphasis added.) 35. Lord Drummond Young explained at paras 40 and 41 why he considered the broader ground not to be in accordance with the underlying principles of the Scots law of contract (principally because in his view in transferred loss cases a performance interest is not sufficient to entitle a contracting party to substantial damages in the event of failure in performance, the person who suffers the substantial loss being the third party). Although the approach of the majority in Panatown was mainly based on English authorities, in his opinion the result was wholly consistent with the principles of Scots law (para 42). He added: “I am accordingly of opinion that Scots law should adopt the same general rule as that applied by the majority of the House of Lords in that case, as described by Lord Clyde in the passage quoted above at paragraph [38]. In effect the rule comes to this: if a breach of contract occurs, causing loss that can be measured in financial terms, the party who is not in breach may recover substantial damages even if that loss has been sustained by another person; if a loss has been sustained by a person other than the contracting party, however, the contracting party must sue on behalf of that other, and must accordingly account to that other for the damages recovered. The right to raise an action in this way is deemed by law to exist in any case where the loss resulting from the breach of contract occurs to a person other than the contracting party. It should not in my view be based on the intention of the parties; the right is rather conferred as a matter of general legal policy, to ensure that if a loss results from a breach of contract damages can be recovered from the party responsible for the breach; that was Lord Clyde’s conclusion at [2001] 1 AC 530-531. Nevertheless, if the third party who suffers loss has a direct right of action against the party in breach of contract, for example under a duty of care warranty, there is no need for the contracting party to have a right of action on the third party’s behalf, and the law will not deem such a right to exist. That was critical to the decision of the majority in Alfred McAlpine Construction Ltd v Panatown Ltd. While the contracting party is obliged to account for the damages recovered, he will in my opinion be entitled to the expenses that he has incurred in conducting the litigation, so far as he has been unable to recover those from the person in breach of contract. Such an approach has a number of advantages. In the first place, it provides a solution to the problem of the legal black hole that is capable of almost universal application. In the second place, it permits recovery even in the case of contracts that are incapable of assignation, since it is the original party to the contract who is responsible for raising any action. That is particularly important in relation to the standard forms of building contract, as it was held in Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd; St Martin’s Property Corporation Ltd v Sir Robert McAlpine Ltd, supra, that the employer’s rights under the JCT standard form could not be assigned to a third party. In the third place, it maintains the fundamental principle that the remedy of substantial damages can only be available if there exists a loss capable of being measured in financial terms. That means that the usual rules on remoteness of damage will continue to apply.” 36. Plainly, Lord Drummond Young was not correct to describe Lord Clyde’s solution as the view of the majority in Panatown.None of the other judges agreed with it. The solution does not represent the law in England and Wales. The basis upon which Lord Drummond Young adopted Lord Clyde’s solution was therefore erroneous. 37. Moreover, Lord Clyde’s and Lord Drummond Young’s view that the basis for any exception to the general rule in transferred loss cases is a rule of law rather than a rule of implication based upon the intention of the parties was not the majority view in Panatown. It is contrary to the guidance given by this court in Swynson. 38. It is possible to deal very briefly with the Scottish cases decided after McLaren Murdoch & Hamilton. In neither Marquess of Aberdeen and Temair nor Axon Well did the defenders challenge the correctness of Lord Clyde’s approach in Panatown or Lord Drummond Young’s adoption of it in McLaren Murdoch & Hamilton. In both cases the contentious issue was whether the transferred loss claim was excluded because of the existence of other suggested remedies (Marquess of Aberdeen and Temair, para 31; Axon Well, para 15). 12. Conclusions 39. The errors I have highlighted in Lord Clyde’s solution in Panatown and in Lord Drummond Young’s reliance upon it in McLaren Murdoch & Hamilton are reason enough to reject Lord Drummond Young’s suggested Scots law solution. However, there are also further compelling reasons. The proposed solution would constitute too wide and too indefinite an exception to the general rule that a party can only recover damages in respect of their own loss. In that regard I recall Lord Neuberger’s cautionary observation in Swynson about the principle of transferred loss (at para 102), with which I agree: “Self-evidently, it is an anomalous principle bearing in mind the well-established conventional rules relating to recovery of damages for breach of contract, namely that, subject to the terms of the contract, scope of duty, foreseeability and mitigation, A can only recover damages in respect of loss which A suffers as a result of B’s breach of contract. For that reason, the principle should only apply in defined and limited circumstances.” 40. The solution suggested by Lord Clyde and Lord Drummond Young would be too wide because it would allow recovery in circumstances where the involvement of a person such as the third party was not within the contemplation of the parties at the time of contracting. That would be likely to produce unforeseen consequences for the party in breach. They are unlikely to have arranged their affairs (eg in relation to insurance) on the basis that such a liability might arise. 41. The proposed exception is too indefinite because the limits of its applicability are vague. Lord Clyde did not define limits, merely observing that the problem was most likely to arise in the context of the domestic affairs of a family group or the commercial affairs of a group of companies (pp 535H–536A). Lord Drummond Young envisaged the exception being “capable of almost universal application” (para 42). Conscious of the need for clear limits, Forthwell suggests that the third party would require to have a material interest in the performance of the relevant contractual obligation. I am not convinced that that would provide a clear, robust and workable solution. 42. I am also mindful that in some cases third parties to contracts may be able to rely upon the provisions of the Contracts (Third Party Rights) (Scotland) Act 2017 (and, in England and Wales, the Contracts (Rights of Third Parties) Act 1999). Legal black holes occur in a relatively small number of cases (see eg Scottish Law Commission Report on Review of Contract Law: Formation, Interpretation, Remedies for Breach and Penalty Clauses, para 18.57 (Scot Law Com No 252)). In some such cases the narrow ground will be available; and, for aught yet seen, it is possible that in some the broader ground may be available. In the whole circumstances I am not satisfied that there is a cogent case for the creation of the exception to the general rule which Forthwell proposes. 43. Nor am I persuaded that the outcome here is unjust. Forthwell and Lynnet chose to organise their affairs in the way in which they did. They had no reason to believe that the ordinary legal consequences associated with their separate corporate personalities would not apply. Moreover, the Lease prohibited sub-letting and the parting with or sharing of possession of the whole or part of the premises (cl 5.3.2, cl 5.3.3.1). Prima facie, the grant of the Licence appears to have been in breach of the Lease. 44. For these reasons the First Division was correct to allow the reclaiming motion. I would dismiss the appeal. 45. The Lord President left open the questions whether the narrow ground and the broader ground are part of Scots law. 46. There can be no real doubt that The Albazero exception is as much a part of the law of Scotland as it is of the law of England and Wales. The origin of the exception was the Scottish House of Lords decision of Dunlop v Lambert (1839) 6 Cl & Fin 600. While in that case Lord Cottenham LC misunderstood the true effect of the proceedings in Scotland (see Panatown, Lord Clyde pp 523C–527D, Lord Goff p 539B-D, Lord Jauncey at pp 563D–565F, Lord Millett p 582D–E; McLaren Murdoch & Hamilton, Lord Drummond Young at para 35), the exception is now far too long-established to be questioned. 47. Like the court in Swynson, I think there is much to be said for the broader ground, but that it is not necessary or appropriate to decide the point in this appeal. It is not a suitable case in which to decide whether the broader ground is (i) part of the law of England and Wales; or (ii) part of the law of Scotland. Any guidance given by us on those questions would be obiter. Further, since both parties have proceeded throughout the action on the basis that Forthwell’s transferred loss claims do not satisfy the requirements of the broader ground, neither this court nor the courts below have had the benefit of developed submissions on either question, nor do we have the advantage of judgments from the courts below which consider them. The courts below could only have formed tentative views as to what the law of England and Wales appeared to be, but their consideration of question (ii) (including Lord Drummond Young’s view that the broader ground is inconsistent with the underlying principles of the Scots law of contract (McLaren Murdoch & Hamilton, paras 40–41) and the significance or otherwise of the differences between Scots law and English law which Lord Malcolm suggested might make separate outcomes on either side of the border less than surprising ([2024] CSIH 38, paras 55–56)) is likely to have been valuable.

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LORD BRIGGS (with whom Lord Reed, Lord Stephens, Lady Rose and Lord Snowden agree): Introduction The statutory scheme which enables lessees within a block of flats to obtain a transfer of the right to manage the building under the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) contains provisions designed to ensure participation in the scheme by various classes of stakeholders, and contains provision for some of those classes to object to a proposed transfer, and for the First-tier Tribunal (“the FtT”) to adjudicate upon those objections. This appeal gives rise to the second chapter in this Court’s appraisal of the extent to which the landlord or the existing management company of such a building can object to the transfer of management on the ground that procedural safeguards included within the statutory scheme for the benefit of other stakeholders have not been complied with by the right to manage (“RTM”) company promoting the transfer, when those other stakeholders either do not, or cannot, make their own objection. The first chapter consisted of the decision of this Court in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27; [2025] AC 1075 (“A1 Properties”). It concerned an attempted objection to the proposed transfer by the existing management company and intermediate landlord for the relevant building, on the ground that the claim notice had not been given to the intermediate landlord, as required by the statutory scheme. This Court held on a leapfrog appeal that the FtT (and the Upper Tribunal) had been correct to dismiss that objection, mainly on the ground that, on the facts, neither objector had suffered any disadvantage by the breach of the relevant rule. The objection by the landlord of the building in the present case is that before serving the claim notice upon anyone, the RTM company had failed to give a notice of invitation to participate (a “NIP”) to one of the qualifying tenants in the block 14 days before the date of service of the claim notice, or at all, as required by sections 78(1) and 79(2) of the 2002 Act. The qualifying tenant herself made no complaint about that failure. Shortly after the service of the claim notice she decided spontaneously to participate by becoming a member of the RTM company. But the landlord objected that the failure to give her a NIP was fatal to the transfer of the right to manage sought by the claim notice. So the RTM company applied to the FtT for a ruling that its application for a transfer of the right to manage the building was well-founded, notwithstanding that failure. 4. The FtT upheld the RTM company’s claim. So did the Upper Tribunal. But the Court of Appeal accepted the landlord’s submission that the failure to serve one of the qualifying tenants with a NIP before serving the claim notice rendered that notice void, so that the RTM company’s claim based upon it could not succeed. Both the Upper Tribunal and the Court of Appeal paid close attention to passages in the A1 Properties case as supporting their different conclusions. It will be necessary to look closely at those passages, and at the disputed question whether one of them formed part of the ratio decidendi for the decision, an expression I explain below. But first it is necessary to map out the relevant parts of the statutory scheme, and in particular the words used by Parliament to express its intention whether or not such a failure to serve a NIP is fatal to a claim for a transfer of the right to manage, based upon a claim notice which should have, but did not, follow service of NIPs upon all eligible qualifying tenants. Save where I indicate otherwise I shall do so by reference to the 2002 Act in the form in force at the relevant time, namely 21 January 2022, the date upon which the RTM company served its claim notice upon the landlord. Generally I shall summarise its contents but quote the key passages where necessary. The Right to Manage Scheme 5. The statutory scheme for the acquisition of the right to manage is entirely contained in Chapter 1 of Part 2 of the 2002 Act, and in regulations made pursuant to it. It is introduced by section 71, as follows: This Chapter makes provision for the acquisition and exercise of rights in relation to the management of premises to which this Chapter applies by a company which, in accordance with this Chapter, may acquire and exercise those rights (referred to in this Chapter as a RTM company). The rights are to be acquired and exercised subject to and in accordance with this Chapter and are referred to in this Chapter as the right to manage.” Under the heading “Qualifying rules”, sections 72 to 77 then set out a series of eligibility conditions for the acquisition of the right to manage. They include conditions about the premises (section 72), about the applicant RTM company (sections 73–74), about qualifying tenants (section 75) and about the long lease which a tenant must hold in order to qualify (sections 76–77). They are all matters of substance, and all of them must be satisfied if the RTM company is to be entitled to acquire the right to manage the premises. In bare outline the premises must consist of a self-contained building or part of a building, containing two or more flats held by qualifying tenants. If it is only a part of a building then that part must be a vertical division of the building, capable of independent development, and served by services which either are or could without significant interruption be provided to its occupants independently of the services provided to the occupants of the remainder of the building. The RTM company must be limited by guarantee. It must have as one of its objects the acquisition and exercise of the right to manage and have articles of association in a form approved by regulations. Entitlement to membership must extend to qualifying tenants of flats in the premises and (after its acquisition of the right to manage) landlords under leases of the whole or any part of the premises. A further important eligibility condition of substance is that, on the relevant date, the number of qualifying tenants who are members of the RTM company are not less than half of the number of flats in the premises or, if there are only two qualifying tenants of flats in the premises, both of them. This important eligibility condition, which reflects a basic majority rule concept within the scheme that the right to manage is provided only if half or more of qualifying tenants want it to happen, is set out in section 79(3), (4) and (5), and repeated in section 81(2). The relevant date is the date upon which the claim notice (as described below) is given by the RTM company: see section 79(1). 10. The identification of a tenant as a qualifying tenant of a flat is the subject of quite intricate provisions in sections 75 to 77. In outline, to be a qualifying tenant, a tenant must hold a “long lease” as defined (the most usually encountered being a lease of more than 21 years) which is not a business tenancy. There can only be one qualifying tenant of a flat at any one time (although that may include joint tenants under a single long lease). A flat may have no qualifying tenant. For example, it may be let on a short lease, or not let at all by the freeholder. There is no requirement that the qualifying tenant actually occupy the flat. It is common for the qualifying tenant to sub-let the flat to a short term or other non-qualifying tenant. There may be a chain of long leases of a flat but, if so, only the holder of the lowest long lease in the chain qualifies. There was a sustained dispute in the present case as to whether the person not served with a NIP was a qualifying tenant at all (having been granted a long lease but not at the relevant date having been registered as its owner). But that dispute was finally resolved in the affirmative in the Court of Appeal, and has not been pursued further in this Court after this Court refused permission to appeal that determination. These eligibility conditions are then followed by a series of provisions (sections 78–89) which, under the heading “Claim to acquire right”, mainly contain procedural rules for the making and withdrawal of a claim to acquire the right to manage, for the provision of information to the RTM company to assist it in making its claim, for rights of access to the premises by stakeholders, for the giving of counter-notices identifying specified grounds for denying the RTM company’s entitlement, for adjudication of disputes about entitlement, and for costs. They can mainly be summarised, but these sections contain the provisions centrally relevant to the outcome of this appeal, which I shall quote. 12. Section 78 contains the provisions about the requirement to give NIPs to qualifying tenants. Subsection (1) provides: Before making a claim to acquire the right to manage any premises, a RTM company must give notice to each person who at the time when the notice is given— (a) is the qualifying tenant of a flat contained in the premises, but neither is nor has agreed to become a member of the RTM company.” I shall call such a person an eligible qualifying tenant. 13. The function of the NIP is to inform the recipient that the RTM company intends to acquire the right to manage the premises and to invite the recipient to become a member of the RTM company: see section 78(2)(a) and (c). It must tell the recipient which qualifying tenants have become members of the RTM company: see section 78(2)(b). It must be in any prescribed form and provide the further particulars required by regulations: see section 78(3). It must either attach the RTM company’s articles or explain where they can be inspected: see section 78(4) and (5). A specific sanction is imposed where, having offered a copy or inspection of the articles, it is later refused: the NIP is deemed not to have been given to that participant: see section 78(6). Importantly for present purposes section 78(7) provides that: “A notice of invitation to participate is not invalidated by any inaccuracy in any of the particulars required by or by virtue of this section.” 14. Sections 79 to 81 deal with claim notices. Section 79 is headed, and concerned with, “Notice of claim to acquire right”. The claim notice is the document which, unless withdrawn, sets in motion a process which leads to the acquisition of the right to manage by a RTM company with a claim which satisfies the eligibility conditions. Sub-section (1) provides that: A claim to acquire the right to manage any premises is made by giving notice of the claim (referred to in this Chapter as a ‘claim notice’); and in this Chapter the ‘relevant date’, in relation to any claim to acquire the right to manage, means the date on which notice of the claim is given.” The concept of the relevant date thus defined is used for various procedural and substantive provisions elsewhere in the statutory scheme. Sub-section (2) lies at the heart of the appeal. It is in the following simple terms: “The claim notice may not be given unless each person required to be given a notice of invitation to participate has been given such a notice at least 14 days before.” I have already explained sub-sections (3) to (5): see para 9 above. They collectively state the eligibility condition that at least half of the qualifying tenants have become members of the RTM company by the relevant date. Sub-sections (6) to (9) then identify to whom a claim notice, or a copy of it, must be given. The claim notice itself must be given to every landlord, to every party to a relevant lease who is neither a landlord or a tenant (such as a guarantor or management company), and to any court-appointed manager of the premises (under Part 2 of the Landlord and Tenant Act 1987): see sub-section (6). The RTM company is excused by sub-section (7) from having to give a claim notice to a person who cannot be found or whose name cannot be ascertained, and provides (by reference to section 85) a fall-back way of acquiring the right to manage if that means that no-one is required to be given a claim notice. Sub-sections (8) and (9) then specify the persons or entities to whom a copy of the claim notice must be given, namely every qualifying tenant and any tribunal which has appointed a manager of the premises under the 1987 Act. The care taken to distinguish between giving the claim notice to some persons and giving a copy of the claim notice to others appears at first sight to be curious, but the explanation (provided in section 84(1)) is that only those persons listed in section 79(6), ie persons to whom the claim notice itself must be given, can give a counter-notice objecting to the transfer of the right to manage on grounds which go to the entitlement of the RTM company. The important corollary for present purposes is that although qualifying tenants are entitled to be notified of the pursuit of a claim to transfer the right to manage, they are given no statutory right to object to it. 18. Section 80 (together with regulations made under it) specifies in detail the information which a claim notice must contain. The precise detail does not matter but in summary the claim notice must specify the premises and provide the grounds why it is claimed that those premises fall within Chapter 1 (sub-section (2)). It must identify by name and flat address all those qualifying tenants who have become members of the RTM company by the relevant date, but not those who have not: sub-section (3). All relevant leases must be sufficiently identified: sub-section (4). It must provide the name and registered office of the RTM company: sub-section (5). It must specify a time frame of not less than one month from the relevant date for the giving of counter-notices: sub-section (6), and a date, at least three months after the relevant date, when the transfer of the right to manage is to take effect: sub-section (7). Finally the claim notice must comply with any regulations as to content: sub-section (8), and form: sub-section (9). Importantly, the claim notice is not required to state which qualifying tenants have been given a NIP, or when. Nor is the landlord (or other person entitled to object by counter-notice) given any other right under the statutory scheme to obtain that information from the RTM company. 19. Section 81, headed “Claim notice: supplementary”, contains important provisions designed to protect the effectiveness of claim notices in leading (subject to withdrawal or successful objection by counter-notice) to a transfer of the right to manage. Sub-section (1) provides that a claim notice is not invalidated by any inaccuracy in the particulars required by section 80. It mirrors the same provision made by section 78(7) in relation to NIPs. Sub-section (2) preserves a claim form from any adverse consequences of naming as a member of the RTM company a person who is not a qualifying tenant. But it expressly preserves the substance of the eligibility requirement that at least half of the qualifying tenants have in fact become members of the RTM company by the relevant date. Sub-sections (3) and (4) in effect give the RTM company a clear field in pursuing its claim, free from subsequent competing claim notices, for as long as the claim notice remains in force, which means from the relevant date until it either takes effect, is withdrawn or ceases to have effect (e.g. by a successful objection by counter-notice). The relevance of these wide-ranging protections will become apparent. Section 82 provides the RTM company with a valuable statutory right to obtain within 28 days from request any information from any person which it reasonably requires for ascertaining the particulars required by or by virtue of section 80 to be included in a claim notice, provided only that the information requested is within that person’s possession or control. No such right is given to persons entitled to object by counter-notice. They are only given a right of reasonable access to the premises, by section 83, enforceable against any occupier or (if unoccupied) the person entitled to occupy. 21. Section 84 deals, together with section 90, with the requirements for and effect of counter-notices. As already noted, sub-section (1) entitles only those persons mentioned in section 79(6) to give a counter-notice. That includes landlords, other parties to the relevant leases, and court-appointed managers, but excludes qualifying tenants. Sub-section (2) is central to this appeal. Leaving aside only the concluding passage requiring compliance with regulations as to form and content, it provides: A counter-notice is a notice containing a statement either— (a) admitting that the RTM company was on the relevant date entitled to acquire the right to manage the premises specified in the claim notice, or alleging that, by reason of a specified provision of this Chapter, the RTM company was on that date not so entitled,” The effect of an admission under sub-section (2)(a) is that (if made by all persons giving counter-notices) the RTM company’s claim succeeds. The same consequence follows if no-one entitled to give a counter-notice does so within the prescribed time: see section 90(2) and (3). But if a counter-notice contains an allegation of the type set out in sub-section (2)(b), then the claim is deemed to be withdrawn unless the RTM company applies to the FtT under sub-section (3) within the time prescribed by sub-section (4) for a determination that it was on the relevant date entitled to acquire the right to manage the premises: see section 87(1). If such an application is made by the RTM company, then success in its claim depends upon a final determination that it was so entitled (by the FtT or on appeal), or upon its claim being admitted in writing by the person or persons giving counter-notices: see sub-sections (5) to (8). The dispute generated by the combination of one or more counter-notices and an application to the FtT by the RTM company is elsewhere described as “a dispute about entitlement”: see section 90(2) and (3). Before moving on through the statutory scheme, it is worth dwelling a little on section 84(2)(b) and identifying the important issue of construction to which it gives rise. It is common ground (and rightly so) that the word “specified” in the phrase “by reason of a specified provision of this Chapter” means specified (ie expressly relied upon) in the counter-notice, not specified in Chapter 1. This is because, first, an important purpose of the counter-notice is to spell out why objection to entitlement is being taken by the person giving it. Secondly, nowhere is there an express list (or other specification) of which provisions in the Chapter are relevant to entitlement, and which are not. Thirdly it is clear that “so entitled” in section 84(2)(b) means entitlement on the relevant date to acquire the right to manage the premises, rather than just entitlement to give a claim notice. It is just shorthand for “entitled to acquire the right to manage the premises specified in the claim notice” as used in sub-section (2)(a). It is, in short, about substance rather than procedure. 24. Fourthly it is also common ground (and verified by a number of authorities) that the reason why section 84(2)(b) restricts objections to the claimed acquisition of the right to manage to objections which are grounded on the “provisions of this Chapter” is that objections based upon the general merits or fairness of the proposed acquisition are not to be entertained. Thus it is irrelevant that the directors of the claimant RTM company are said by the landlord to have a poor track record, or complete lack of experience, in property management, or that by contrast the landlord or other existing manager of the premises has an exemplary record, backed by long experience of managing a difficult building and providing value for money. Nor is it relevant that a bare majority of qualifying tenants (who support the acquisition) all have small flats and corresponding service charge liabilities whereas a bare minority who oppose the acquisition have large flats and correspondingly large service charge liabilities. The entitlement to acquire the right to manage the premises upon which the FtT has to rule under section 84(5) is governed entirely by the provisions of the statutory scheme in Chapter 1. The FtT has no discretion to refuse the acquisition, and no power to refuse it otherwise than by reference to the provisions of the statutory scheme. And qualifying tenants have no role to play in that determination. The more difficult and contentious question is whether the language of section 84(2)(b) read purposively and in context tells you anything about which provisions of Chapter 1 can ground an objection to entitlement based upon non-compliance by the RTM company. It is one thing to conclude (as is agreed) that the language prevents an objector going outside the provisions of Chapter 1 to ground an objection. It is quite another to conclude that any procedural default by the RTM company in claiming its entitlement is sufficient to justify a “not entitled” objection or, using the statutory jargon, sufficient to give rise to a dispute about entitlement. But before addressing that question directly, I will briefly introduce the remaining relevant provisions of Chapter 1. I have briefly mentioned section 85, which deals with untraceable landlords. The effect of sections 86 and 87 is in summary to enable the RTM company to withdraw its claim at any time before acquisition of the right to manage, either by withdrawing its claim notice or its application to the FtT. And deemed withdrawal occurs not only where (as already noted) the RTM company fails to apply to the FtT after receiving a counter-notice, but also if it suffers one or more of a specified number of terminal corporate illnesses (winding up, the appointment of a receiver or manager, entering into a voluntary arrangement or being struck off the register). Nothing turns on any of the remaining sections in Chapter 1, save as follows. I have already mentioned the relevant provisions in section 90, which is otherwise about fixing what is called the acquisition date. Sections 91–103 describe in detail the consequences of the acquisition of the right to manage. All that needs to be noted is that they involve events with large and difficult-to-reverse economic consequences for stakeholders, including the payment of potentially large sums of money (e.g. accrued but uncommitted service charges). There is provision for cessation of management by the RTM company in section 105, and an anti-avoidance provision in section 106. Finally, and of more significance for present purposes, section 107 enables any person interested to apply to the county court (now instead to the FtT) requiring a person who has failed to comply with a requirement imposed on him by Chapter 1 to make good the default within such time as is specified in the order. The application must be made on 14 days’ notice in writing to the defaulter. The power of the court is expressed to be discretionary. The Facts When it is borne in mind that the right to manage scheme laid down by Chapter 1 is a one-size-fits-all scheme applicable to buildings of infinitely variable size, complexity and age, with anything from just two flats to hundreds of flats within them, it is inherently unlikely that the determination of the issues of construction raised by this appeal will be dependent to any significant degree upon the particular facts of any one case. The facts of this case can therefore be shortly stated. The Respondent Avon Freeholds Ltd (“Avon”) is the registered proprietor of the freehold interest in the residential property known as numbers 7–26 Cresta Court, Hanger Lane, London, W5 3DE (“the Premises”). They included20 flats. Cresta Court E RTM Co Ltd (“the Appellant”) is a RTM company, incorporated by leasehold owners of the Premises for the purpose of acquiring the right to manage. At all material times Ms O’Connor was the residential occupier of Flat 17 within the Premises, pursuant to a lease, granted on 17 April 2020 by the Respondent’s predecessor in title for 150 years from 1 January 2015, but for which registration at HM Land Registry, applied for on 15 July 2021, was still pending. By reason of section 27(1) and (2)(b)(i) of the Land Registration Act 2002 she was therefore to be regarded as an equitable tenant only. After a major dispute between the parties to this litigation (to which she was not a party at any stage) it is now common ground that Ms O’Connor was a qualifying tenant throughout. On 4 November 2021 the Appellant RTM company gave NIPs to all those whom it had identified as qualifying tenants who had not become or agreed to become its members. But Ms O’Connor was not given a NIP, either then or thereafter. Nonetheless she agreed to become a member of the Appellant on 26 January 2022, and at the same time signified her support for the Appellant’s claim to the right to manage the Premises. Meanwhile however, and only five days earlier, the Appellant gave its claim notice to Avon, on 21 January 2022. That became the relevant date for the purposes of Chapter 1. On 24 February 2022 Avon gave its counter-notice, relying upon a number of grounds for disputing the Appellant’s entitlement to acquire the right to manage the Premises. The only ground which remains live is that based upon the Appellant’s failure to give Ms O’Connor a NIP. 34. Applying the provisions of Chapter 1 to those facts, the following conclusions appear now to me to be beyond contest: (i) As at the relevant date the Appellant satisfied all of what I have described as the eligibility conditions for the acquisition of the right to manage the Premises, as set out in the Qualifying rules in sections 72 to 77, and the additional eligibility requirement, in section 79(3) to (5), that the number of qualifying tenant members of the RTM company was not less than half the number of flats in the Premises. (ii) But as at the relevant date the Appellant was in default under two procedural requirements in Chapter 1, by reason of its failure to give Ms O’Connor a NIP. It had not given a NIP to all qualifying tenants who had not become or agreed to become its members, as required by section 78(1). And it had not waited 14 days after giving a NIP to all eligible qualifying tenants before giving a claim notice, as required by section 79(2). 35. As regards any potential application under section 107 that Ms O’Connor might have wanted to bring, prejudice arising from a default and blame for the default might be of relevance to the exercise of discretion whether to order a default to be made good, under that section. I would suggest that the following conclusions may sensibly be drawn. (i) On no rational basis can it be said that these defaults caused Avon, Ms O’Connor or anyone else any prejudice. (ii) Looking first at Ms O’Connor’s position, section 78(1) only required her to be given a NIP before the Appellant “made a claim”. She could have complained only that she should have received a NIP by 21 January 2022, when the Appellant made its claim. But she agreed to become a member of the Appellant only five days later. (iii) Section 79(2) is mainly concerned with a timing rule about when a claim notice may be served. But if the Appellant had waited only a further five days, Ms O’Connor would have lost any entitlement to be given a NIP, because by then she had agreed to become a member of the Appellant. Bearing in mind that the statutory scheme gives a qualifying tenant no right to object to a claim, and that Ms O’Connor supported the claim anyway, the timing of the giving of the claim notice must have been a matter of complete indifference to her. If anything, since she supported the claim, the sooner the claim notice was given, the sooner the right to manage would have been transferred to the Appellant, and the better for her. (iv) It is impossible to identify any prejudice caused to Avon by the breach by the Appellant of either section 78(1) or 79(2), and none was suggested. (v) As for blame, much ink was spilt and time spent in advocacy about whether Ms O’Connor’s presence as a qualifying tenant was or was not reasonably ascertainable without carelessness on the Appellant’s part, and more generally whether the risk of invisible qualifying tenants, for which the 2002 Act makes no special provision, was as great as the risk of invisible landlords, for which it does, in section 85. I have not found it easy or necessary to resolve these questions. All I would suggest is that Avon’s catch-all answer, that every eligible qualifying tenant can easily be given a NIP, just by posting it to or leaving it at each flat, addressed to “the qualifying tenant”, is more of a lawyerish fancy than a real solution. The flat might well be occupied by a short-term sub-tenant, or even an Airbnb licensee. How would he or she know, unless a specialist landlord and tenant lawyer, whether they were or not relevantly qualified, or whether they should send the NIP to someone else, and if so, to whom? True it is that the qualifying tenant is deemed to give the flat as his or her address for service if they do not provide a different one, but the standard form NIP provided for in the relevant regulations assumes that the qualifying tenant will be named. The alternative suggested answer on the facts of this case was that Ms O’Connor could easily have been found by visiting her flat. But it must be a matter of pure speculation what answer she might have given to the question from the cautious process server: “are you the qualifying tenant?” Analysis 36. I shall begin my analysis of the issues of construction raised by this appeal on the assumption that the matter is free from authority, and being assessed by this Court for the first time. Avon’s case was originally straightforward, and reflected the reasoning of the Court of Appeal, as follows: (i) Section 78(1) requires that every qualifying tenant who has not become, or agreed to become, a member of the RTM company must be given a NIP before a claim notice is given. (ii) Section 79(2) then provides expressly what is to be the consequence of non-compliance with section 78(1). No valid claim notice can be given to anyone. A document purporting to be a claim notice given while the breach of section 78(1) remains outstanding may look like a claim notice, contain all the required particulars and be given to all the right persons, but it is invalid, i.e. simply void. (iii) There is therefore simply no room for the more nuanced analysis of the intended consequences of breach set out in R v Soneji [2005] UKHL 49; [2006] 1 AC 340 (“Soneji”) and applied to another provision in this statutory scheme in A1 Properties. (iv) No claim based upon a void claim notice can possibly be upheld. 37. In my opinion this construction faces a number of difficulties which are, at least in the aggregate, insurmountable. The first is that the notion that a claim notice given when there is an outstanding NIP still to give is invalid begs all sorts of questions. Is it absolutely void for all purposes? Or it is void for some, but not other, purposes? Or is it voidable rather than void and, if so, by whom, how and subject to what conditions? 38. The Court of Appeal appear to have taken the rigorous view that the claim notice was rendered absolutely void. At para 74 Sir Launcelot Henderson, giving the lead judgment, said: “It follows, in my view, that if a claim notice may not be served at all, any claim notice purportedly served before the non-compliance is remedied must be invalid, or in other words a nullity.” The trouble with that analysis is that, if the claim notice is a complete nullity for all purposes, it cannot even be a trigger for the right of an objecting landlord (or other person within the list in section 79(6)) to object to the transfer of the right to manage by giving a counter-notice, or therefore for the RTM company to invoke the statutory jurisdiction of the FtT to resolve a dispute about entitlement. Under section 84(1) the right to give a counter-notice is conferred only upon a person given a claim notice, and the RTM company’s right to apply to the FtT for a determination of entitlement under section 84(3) depends upon having been given a counter-notice. There is no alternative way of engaging the jurisdiction of the FtT provided by the statutory scheme other than (now) under section 107 (to which I will return). It would also follow that the whole of the current litigation, at least at the level of the FtT and the Upper Tribunal, was outwith the jurisdiction of those tribunals. How would a dispute about whether there had been a breach of section 78(1) and/or section 79(2) be resolved? It seems wholly improbable that the framers of the statutory scheme intended to carve out this little issue from all other disputes as to entitlement, and give it to a non-specialist court with general jurisdiction not dependent upon the 2002 Act. 39. A further difficulty with the absolutely void theory is that entitlement to a transfer of the right to manage is in many respects required to be determined as at the relevant date: see e.g. sections 79(4) and (5) and section 84(2). But the identification of the relevant date assumes that there is a valid claim notice, because the relevant date is the date upon which it is given: see section 79(1). And that date is critically important for the ascertainment whether there has been a breach of section 78(1), or section 79(2). If by that date a qualifying tenant has become or agreed to become a member of the RTM company, then neither provision is infringed in relation to him or her, as was common ground. 40. Faced with those unpalatable consequences of absolute voidness, Mr Justin Bates KC for Avon sensibly adjusted his sails to steer a more moderate course. He submitted that a claim notice given in breach of section 78(1) or section 79(2) was valid for all procedural purposes, including the fixing of the relevant date, but still void for the purpose of the pursuit by the RTM company of a valid claim. In response to a question from the Court he had no persuasive answer to the proposition that it would also be valid for the purpose of triggering an entitlement if there was no objection by counter-notice: see section 90(2) and (3)(a). 41. And there is no answer. The statutory scheme is intended to operate automatically where no person entitled to object to its going ahead does so, without the need for recourse to the FtT or any court. The transfer of the right to manage gives rise to important financial and economic consequences for a large number of stakeholders, and it would give rise to unacceptable uncertainty if its validity was dependent upon the outcome of some alleged (but possibly disputed) defect in compliance with the rules about NIPs in a situation where the qualifying tenants had no right to object, and none of those with such a right chose to do so. 42. The next problem is whether the supposed invalidity of the claim notice renders it void or voidable and, if the latter, by whom, how and subject to what conditions. The Court of Appeal resolutely chose the former, and Avon submits that it was right to do so. But that outcome seems at variance with reasonable notions of fairness or justice, and also therefore unlikely to have been intended. If something is void, even for limited purposes, then in principle anyone can rely on that voidness to advance their interests, as Avon seeks to do here. It would (as here) enable persons to defeat the transfer of the right to manage who were not within the class of those intended to be benefited in any way by compliance with the procedural rule alleged to have been infringed. 43. In the context of sections 78(1) and 79(2) the obvious and indeed only persons apparently intended to be benefited by rules about the giving of NIPs are eligible qualifying tenants: i.e. those who have not become or agreed to become members of the RTM company: see section 78(1). But they are given no right to object to the transfer of the right to manage even if they are in fact (unlike Ms O’Connor) opposed to it. So it seems unlikely that they were intended to have the right to avoid the claim notice merely because they did not receive a NIP. Furthermore every qualifying tenant is entitled to be given a copy of the claim notice, but not to raise a dispute as to entitlement by giving a counter-notice: see sections 79(8) and 84(1) as already explained. 44. Although voidability was in the A1 Properties case conceived to be a possible solution where the breach consisted of a failure to give a claim notice to a person entitled to it under section 79(6), there at least the person prejudiced by the default (and entitled to avoid the claim notice) was squarely within the class of those intended to be protected by the relevant procedural rule. 45. Standing back, questions arising from the assumption that failure to comply with sections 78(1) and/or 79(2) go to the validity of the claim notice throw up such a raft of problems and least-worst alternative solutions that it becomes a serious question whether invalidity of any kind really was intended to be a consequence of default, all the more so in a context where any number of inaccuracies in a NIP and in a claim notice are expressly provided not to give rise to invalidity, not even incorrectly naming as a member of the RTM company a person who was not a qualifying tenant: see section 78(7) for NIPs, section 81(1) for claim notices and 81(2) for errors about qualifying tenants. 46. Leaving aside for the moment some incautious statements of mine in two earlier decisions of this Court (to which I will have repentantly to return), a fresh and more in-depth look at section 79(2) and its relationship with section 78(1) leads me to the conclusion that neither was intended to affect the validity of the claim notice at all. The assertion that section 78(1) goes to validity is based upon the over-simple assumption that section 79(2) prescribes a clear express statutory sanction for breach of section 78(1) which therefore excludes any more nuanced process for the determination of Parliamentary intention comprised within what I shall label as the Soneji principle. In summary, where there is no express statement of the consequences of a failure to comply with a statutory procedural requirement, the Soneji principle requires the court to infer what consequences Parliament had intended non-compliance to have by looking at (a) the purpose served by the requirement as assessed in the light of a detailed analysis of the statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process was affirmed notwithstanding non-compliance with the requirement: see the A1 Properties case, and recently affirmed by this Court in Akbars Restaurant (Middlesbrough) Ltd v Secretary of State for the Home Department [2026] UKSC 26. 47. The first question is therefore whether there is an express statement of the consequences of a failure to comply with section 79(2). If there is, then those consequences must be given effect and there is no room for the Soneji principle to apply. Section 78(1) certainly provides a clear rule or requirement that the RTM company gives a NIP to every qualifying tenant who has not become or agreed to become a member of the RTM company before giving a claim notice. But no sanction for breach of that rule is provided in section 78, which appears to be a comprehensive statement of the rules about NIPs. Furthermore, giving a NIP to such a qualifying tenant just one day (or for that matter 13 days) before giving the claim notice would involve no breach of section 78. The only sanction for not giving a NIP to a person entitled to one would appear to lie within section 107, although a more practical solution for a person who had discovered her entitlement to be given a NIP might be to ask her next-door neighbours for a sight of their copy. 48. In sharp contrast, giving a claim notice only one day (or 13 days) after giving the last NIP to an entitled tenant would be a plain breach of section 79(2). The RTM company should have left a 14-day gap. Indeed the 14-day period starts to run only from the day when the last eligible tenant is given their NIP. The point is that the requirement in section 79(2) is primarily about the need to leave a 14-day gap after the last eligible tenant has received her NIP (which assumes compliance with section 78(1)), rather than to sanction a RTM company for breach of section 78(1). It is a timing rule for claim notices, not a rule about the sanction for a breach of section 78(1). 49. The important point arising from this is that section 79(2) may be infringed without any breach of section 78(1). It is a self-contained rule about when a claim notice may be given, in a section all about claim notices, and it provides no express sanction for breach of its own time-limit. Thus I have concluded that there is no express sanction for a RTM company which complies with section 78(1) by giving a NIP to all eligible qualifying tenants but then gives its claim notice too early. The Soneji principle would apply in full to the interpretation of the intended consequences. 50. Yet Mr Bates KC submitted, in response to enquiry from the Court, that the same invalidity consequence would flow from giving a claim notice too soon after giving a NIP to the last eligible qualifying tenant entitled to one, as would flow from giving a claim notice before all such tenants had been given a NIP. There is something to be said for attributing the same type of sanction to giving a claim notice before the 14-day period has started to run as to giving a claim notice when the period has been running, but for less than 14 days. Precisely the same prohibition applies to both: the claim notice “may not be given”. In both cases the claim notice has been given too early. 51. But that begs the question why invalidity should be the intended sanction for both, or indeed for either, when no express sanction is given for breach of section 79(2) for giving the claim notice too early. It is instructive first to consider a typical breach of section 79(2) where section 78(1) has been complied with. I will use as an example a case where the RTM company gave its claim notice only 13 days after giving a NIP to the last eligible qualifying tenant. The context is that a claim notice given one day later could be full of errors without thereby being invalidated. 52. I find it inconceivable, applying the Soneji principle, that invalidity can have been the intended sanction. The jumping of the gun by one day can have caused no conceivable prejudice to the landlord or other persons entitled to raise a dispute about entitlement. The only conceivable harm to the last eligible tenant to be given the NIP would be the curtailment by one day of the time (before the relevant date) during which to consider whether to lend her support to the transfer of the right to manage by joining the RTM company. In any event she would not lose the right to join the RTM company and play her part as a member in its activities at any time thereafter, and the prescribed constitution for a compliant RTM company gives early joiners no special rights. In any event the RTM company would already have to have the requisite number of qualifying tenants as its members before giving a claim notice, so that the lateness of the addition of one more would do nothing to improve its claim. Nor would a decision not to join by that last recipient (after reading her NIP) in any way weaken the RTM company’s claim. 53. I now consider the case where an entitled tenant has not been served her NIP at all by the relevant date, so that there is a breach of both section 79(2) and 78(1). The present case is a good example, where Ms O’Connor was not given a NIP before the relevant date (i.e. the date of the claim notice), but she joined the RTM company a few days later. On those facts (and assuming no additional failure to give her a copy of the claim notice in breach of section 79(8) for which there is also no express sanction), why should the intended consequence be invalidity of the claim notice? All that has been added to a breach of section 79(2), for which there is no express sanction, is a breach of section 78(1) for which there is also no express sanction, at least outside section 79(2) itself. Put another way, why should a provision for the breach of which no express sanction is provided be interpreted as imposing a draconian sanction of invalidity for the breach of another provision which does not contain any express sanction either? 54. The supposed answer to that conundrum is said to be: because that is what section 79(2) says. The claim notice may not be given unless each person required to be given a NIP has been given one. These are no doubt mandatory rather than directory words, but that distinction has long since been cast away as a decisive determinant of intended consequences or sanctions. Apart from that, section 79(2) says nothing about validity, whereas the concept of validity is elsewhere used where needed: see section 78(7) and section 81(1) and (2). There is no need to assume that invalidity is to be implied on the basis that section 79(2) or section 78(1) would otherwise be toothless, because section 107 provides a discretionary power in the court, now the FtT, to order compliance. In my view section 79(2) is not about a sanction for breach of section 78(1) at all. It simply sets a 14-day time delay following the giving of the last NIP to the eligible qualifying tenants, before a claim notice may be served. 55. I have belatedly come to the conclusion that a negative answer to the validity issue is the right one additionally from a focus upon the concept of “dispute about entitlement” around which the provisions about counter-notices and determination by the FtT are built. Speaking generally the statutory scheme for the transfer of the right to manage is divided into three nearly watertight compartments. The first, headed Qualifying rules, is concerned with the conditions which a RTM company must show are satisfied in order to be able to make a claim to be entitled to the transfer of the right to manage. I will call them entitlement conditions. They are almost all contained in sections 72 to 77, but include the requirement that the number of qualifying tenant members of the RTM company on the relevant date is not less than half the number of flats in the premises, in section 79(3) to (5). These are all rules of substance rather than procedure. 56. The second, headed “Claim to acquire right”, contains a procedural code setting out the steps that must be taken for the implementation of that entitlement by a RTM company, for strictly limited objections to that entitlement to be made by a specified class of stakeholders, and for those objections to be determined by the FtT. The objective is for the transfer to go through automatically unless a permissible objection is made and then upheld, or the claim is withdrawn. Those provisions are mainly contained in sections 78 to 89, and end with provisions as to costs. 57. The third section may conveniently be labelled consequences, and runs from section 90 onwards, which are mainly provisions of substance, laying down when the acquisition is to take place, what rights are to be transferred and the principal obligations of persons affected by the transfer. The scheme concludes with miscellaneous provisions, including the discretionary power of enforcement in section 107. 58. To my mind the critical question about the consequences of non-compliance with sections 78(1) and 79(2) is not whether they render the claim notice invalid, void or voidable, and if so by whom. Rather the correct question is whether non-compliance with them by the RTM company is capable of being raised as the basis of a dispute about entitlement by way of counter-notice under section 84(1) and (2) by the classes of stakeholder (landlords and others) entitled to object. For that purpose the language of those sub-sections about “entitlement to acquire the right to manage” and the description of objections by counter-notice as giving rise to a “dispute about entitlement” in section 90(2) and (3) mean that it is only an objection that the RTM company fails to satisfy what I have labelled the substantive entitlement conditions that can be raised by way of objection. Since the rules in sections 78(1) and 79(2) are procedural and do not go to entitlement, they cannot be raised by way of objection to the acquisition of the right to manage by the RTM company. The only sanction for non-compliance which is available is an enforcement order made under section 107. 59. I consider that this interpretation of the words to which I have referred is strongly supported by the overall purpose of the statutory scheme, by the context, and by the available pre-legislative documents. As to purpose, the main point is that invalidity (whether voidness or voidability) is an extraordinarily blunt weapon with which to address procedural defaults of almost limitless variety in seriousness, blameworthiness and practical consequences (if any). One would expect to find a discretionary means of redress in which the court or tribunal could refuse relief to someone who had suffered no prejudice from a blameless default, and a scheme for enforcement not limited (like the counter-notice procedure) to a specified class (landlords etc.) for whose benefit the rules in question were plainly not made, different from the class (qualifying tenants) for whom they were made. In that context, invalidity is like taking a blunderbuss to a shooting gallery. By contrast section 107 permits an application by any interested person, and the discretion given to the court whether to make any order, or what kind of order, appears much better tailored to providing any appropriate sanction for non-compliance with what are purely procedural rules. 60. I am not of course suggesting that Parliament cannot make compliance with matters of procedure a condition of entitlement to enforce a statutory right. Part II of the Landlord and Tenant Act 1954 is a notorious example where it has done exactly that, by imposing a strict timetable for service of a counter-notice demanding a new business tenancy. But the question is always, has it done so in any particular case? 61. It is easy to see why Parliament may have wanted qualifying tenants who have not become, or agreed to become, members of the RTM company to be given a NIP, so as to enable them to make an informed choice whether to become early joiners in the acquisition of the right to manage. The public policy advantage of having as many as possible of the flats in a building represented by their owners being members of the new RTM manager is plain to see. A deliberate decision by the RTM company (with the requisite number of members to enable it to proceed) to give no NIPs at all might properly be visited by an order under section 107 on the application of one or more eligible qualifying tenants, to give all the requisite NIPs and, even if the RTM company has given a claim notice, a further order to start the claim process again, if only pour encourager les autres. But compliance with the requirement for the giving of NIPs to qualifying tenants before, or 14 days before, giving the claim notice is of little if any effect upon the question whether the acquisition of the right to manage succeeds or fails. The qualifying tenants could do nothing to stop the transfer if notified in advance by a NIP. They simply have no statutory or other right to object. It was faintly suggested that, if notified by a NIP in advance, they could take steps to join the RTM company and then try to make it decide not after all to pursue a claim. But that strikes me as fanciful. There would be by then enough members of the RTM company wishing to proceed to make the process unstoppable, and the management of the RTM company is vested by the required articles of association in its board of directors, not its members. 62. If qualifying tenants entitled to be given a NIP cannot stop the transfer, then it seems completely inexplicable that the framers of the statutory scheme should, by inserting a draconian sanction of invalidity of the claim notice for every breach of section 78(1), however minor and inconsequential, have legislated for exactly that outcome, at the behest of landlords and others for whose benefit the obligation was not imposed and who cannot have been prejudiced by the breach. 63. The pre-legislative background prayed in aid for this purpose are first the Consultation Paper on Commonhold and Leasehold Reform (Cm 4843), presented to Parliament in August 2000, and secondly the Explanatory Notes on the 2002 Act which were prepared and published by the Lord Chancellor’s Department and the Department for Transport, Local Government and the Regions. Taking them in turn, para 46 of the consultation paper states that the purpose of the NIP (and the reason for the two-week wait before giving the claim notice) is to give leaseholders a proper opportunity to consider the information in the NIP before deciding whether to support the transfer of the right to manage. More to the point, para 52 states that the counter-notice could only be served on the grounds of non-compliance with one or more of the specific qualifying criteria. Examples are then given which all fall within what I have labelled the substantive entitlement conditions. 64. Para 149 of the Explanatory Notes is to the same effect as para 52 of the consultation paper. It states: “Subsection (2) (of section 84) specifies that a counter-notice may only either admit that the RTM company is entitled to acquire the right to manage or state that the company is not entitled to do so. To be effective, a counter-notice to the latter effect must state the grounds on which the company is considered not to comply with the eligibility criteria set out in the Act.” 65. Thus far, looking at the matter as if it were free from authority, I have reached the clear but provisional conclusion that the statutory scheme in the 2002 Act does not impose invalidity of the claim notice as the sanction for breach of either or both of sections 78(1) and 79(2). To put it another way, a landlord cannot assert in its counter-notice that by reason of non-compliance with sections 78(1) or 79(2), the RTM company is not entitled to acquire the right to manage at the relevant date. Those provisions do not affect the entitlement to acquire that right. But the Court of Appeal considered, in Avon’s submission correctly, that part of the ratio decidendi of the A1 Properties decision by this Court consisted of a holding that breach of section 78(1) is, by reason of section 79(2), a default by the RTM company which renders invalid a claim notice given before all the eligible qualifying tenants (who have not become or agreed to become members of the RTM company) have received their NIPs. 66. That allegedly binding holding is said to be derived from this passage in para 69 of A1 Properties: “Section 78 requires the RTM company as promoter of the scheme to give a participation notice to all qualifying tenants who have not agreed already to become, or not actually become, members of the RTM company. Section 79(2) provides that until 14 days after that has been done, a claim notice may not be served at all. There will ordinarily be no difficulty in finding or identifying qualifying tenants. The absence of any saving or dispensing provisions of the type found in section 79(7) suggests that this was well understood by Parliament. Section 79(2) imposes a clear consequence of failure in good time to give participation notices: no valid claim notice can be given to anyone.” 67. Even if not part of the ratio of A1 Properties, the Court of Appeal considered that this was an authoritative and compelling statement which ought to be followed. For good measure counsel for Avon added this passage from my judgment in Settlers Court RTM Co Ltd v FirstPort Property Services Ltd [2022] UKSC 1; [2022] 1 WLR 519, at para 16: “Sections 73 and 74, together with sections 78 and 79, ensure that the right to manage can only be acquired through an RTM company which has first invited all qualifying tenants within the relevant premises to become members, and has as its members at least half of them.” Although the decision of this Court was unanimous in both cases, I acknowledge full responsibility for the first (in time), and shared responsibility with Lord Sales for the second. 68. My statement in the Settlers Court case can easily be put on one side. It was a small part of a general summary of the structure of the statutory scheme, and sections 78 and 79 had nothing at all to do with the issue which had to be decided in that case, which concerned the effect of the acquisition of the right to manage one block of flats within a multi-block residential estate with shared facilities. As already noted it is of course a feature of the statutory scheme that the invitation contained in the NIP is meant to be sent to eligible qualifying tenants before the acquisition takes place. But that does not answer the question whether a claim notice given too soon, or before all those entitled to a NIP have been given one, is thereby rendered invalid. 69. The A1 Properties case was about the consequences of breach of the obligation in section 79(6)(a) of the 2002 Act to give a claim notice to every landlord entitled to receive one. There had been a failure to give a claim notice to an intermediate landlord, one of two entitled landlords, which then claimed that this invalidated the acquisition of the right to manage. Both the freeholder landlord and the existing management company had been given claim notices. The management company served a counter-notice relying upon the RTM company’s failure to give a claim notice to the intermediate landlord, and the FtT joined the intermediate landlord as a party to the proceedings initiated by the RTM company under section 84(3). The FtT and the Upper Tribunal both concluded that the objection should be dismissed, on the ground that the intermediate landlord had no relevant power of management which would be affected by the acquisition. The intermediate landlord appealed directly to this Court, using the leapfrog procedure. This was because, in Elim Court RTM Co Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89; [2018] QB 571, the Court of Appeal had already ruled that a failure to give a claim notice to a landlord as required by section 79(6)(a) did not inevitably invalidate the acquisition of the right to manage, and would have been bound by its earlier decision. 70. This Court upheld the decision of the Upper Tribunal, but not for the reason given in Elim Court. Rather, the outcome of a careful analysis of the scheme as a whole in accordance with the Soneji principle led to the conclusion that the failure to give a claim notice to the intermediate landlord did not render it incapable of giving rise to an acquisition of the right to manage because the intermediate landlord had not, in the event, lost anything of value by reason of that omission. This was because the initial inability of the intermediate landlord to give a counter-notice was remedied by the FtT adding it as a party to the RTM company’s application for a determination that it was entitled to acquire the right to manage, so that it had every opportunity to advance, and did advance, any objection to that application which it could have advanced by way of counter-notice, had it been given a claim notice: see in particular para 91. 71. None of this reasoning depended in any sense upon the view expressed in para 69 about the combined effect of sections 78(1) and 79(2) that no valid claim notice could be given if they had not been complied with. Furthermore the Court was using validity (or invalidity) as no more than a convenient shorthand for answering the question whether the claim notice (given to the head landlord freeholder and the then management company) was a sufficient foundation for the acquisition of the right to manage by the RTM company: see para 94. Whether the effect of section 79(2) was or was not a sufficiently clear statement of the effect of non-compliance with section 78(1) to avoid the need to conduct a Soneji analysis was irrelevant to the need to do so in relation to a breach of section 79(6). The question what breach of one or other or both of those rules led to in terms of consequence, or whether section 79(2) ousted a Soneji analysis, was simply not argued. 72. There have been a range of statements over the years about what constitutes the ratio decidendi of a decision. The narrowest is probably the well-known description of the Earl of Halsbury LC in Quinn v Leathem [1901] AC 495 that “a case is only an authority for what it actually decides”. A broader and more flexible approach is more recently to be found in the concurring judgment of Leggatt LJ (as he then was) in R (Youngsam) v Parole Board [2019] EWCA Civ 229; [2020] QB 387, at paras 48 to 59, that to be part of the ratio, a ruling must be “part of the best or preferred justification for the conclusion reached” (para 51), taking into account all the factors listed in para 59 including, relevantly for present purposes, whether the point was in dispute or subject to argument, whether or how clearly the court evinced an intention to establish a binding rule and whether the court would or sensibly could have reached the same result if it had not ruled as it did. A better known but perhaps a little narrower definition, used by the majority in the Youngsam case, but criticised by Leggatt LJ, is whether the ruling was a necessary part of the reasoning for the decision. 73. It is not necessary for this Court to rule on what is or ought to be the modern definition of the ratio. It is enough for me to say that on none of those alternative definitions can the statement in para 69 of A1 Properties that, if there is default in compliance with sections 78(1) and/or 79(2) then no valid claim notice can be given, be considered part of the ratio. It was plainly not what the case actually decided. Nor was it a necessary part of the reasoning. In fact it hardly featured in the chain of reasoning at all, which was concerned with section 79(6), a very different provision. It formed no part of the justification for the decision reached. It was not subject to argument, the Court did not intend thereby to lay down any clear rule, and the actual decision in the case both could and would have been the same if the statement had not been made. 74. In that respect the statement must be viewed in the context of para 67 read as a whole. Following the passage quoted (at para 66 above) Lord Sales and I went on expressly to reserve for another occasion the “difficult question” whether a landlord given a claim notice could object to the acquisition of the right to manage on the ground that an eligible qualifying tenant had not been given a NIP before the date of the claim notice, where no objection was taken by the qualifying tenant in question. That is precisely the question which arises in this appeal. We therefore left open the question whether two earlier tribunal cases decided against the landlord on that very point, namely Sinclair Gardens Investments (Kensington) Ltd v Oak Investments RTM Co Ltd [2005] RVR 426 and Avon Freeholds Ltd v Regent Court RTM Co Ltd [2013] UKUT 213 (LC); [2013] L & TR 23, were rightly decided. 75. Even if not part of the ratio of A1 Properties,the question remains whetherthat statement, expressed to go to validity of the claim notice, is so persuasive that it ought nonetheless to be followed, as the Court of Appeal thought. For all the reasons already given I have come to the conclusion that it ought not. The key word in the passage relied upon is “validly”, implying that breach of section 78(1) and 79(2) invalidates a claim notice. In my judgment, while it is plain that the purpose of the two rules is to bring about a 14-day period after all eligible qualifying tenants have been given a NIP, before the RTM company can set in motion the acquisition of the right to manage by giving a claim notice, they say nothing sufficiently clear about what should happen if the RTM company gives a claim notice before every eligible qualifying tenant has been given a NIP, or earlier than 14 days after that has happened, to enable the court to dispense with an analysis of the consequences in accordance with the Soneji principle. Such an analysis leads inevitably to a conclusion that the landlord given such a claim notice may not rely upon the breach of sections 78(1) and 79(2) as the basis for a counter-notice, or therefore as the basis for raising a dispute as to the entitlement of the RTM company to acquire the right to manage the relevant premises under the statutory scheme. 76. The reasons may easily be summarised from the foregoing paragraphs of this judgment: (i) The failure caused no conceivable prejudice to Avon, which was not a person intended to be benefited or protected by the two rules in question. (ii) The failure had no effect upon the progress of the acquisition, since the qualifying tenants had no right to oppose it by a counter-notice. (iii) Parliament could not have intended that such an error by the RTM company should have invalidated the acquisition of the right to manage the premises unless the qualifying tenant him or herself takes steps under section 107 to invoke the FtT’s discretionary jurisdictionto make an enforcement order. 77. There is incidentally much in the Soneji analysis carried out by this Court in A1 Properties which supports the above conclusion in the present case, in particular in paras 91–92. In para 91 it is emphasised that the question to be addressed, in deciding whether a procedural failure has the effect of invalidating the process, is whether a relevant party has thereby been deprived of a significant opportunity to have their opposition to the making of a transfer order considered. Ms O’Connor had no such right or opportunity to object at any stage, and Avon’s right to object was not affected in any way. 78. In para 92 it is stated that there is no good reason to suppose that Parliament intended that a person who has not been affected by a procedural omission in relation to another should acquire, by a windfall, a power to thwart the operation of the statutory process which it would not otherwise have enjoyed. That description fits Avon perfectly, even though it was addressed to different facts and a different procedural omission. 79. More generally, at para 98, this Court observed that: “the purpose of the legislative scheme as explained in the Consultation Paper includes the objective that opportunities for obstructive landlords to thwart the transfer of the right to manage should be kept to a minimum. The procedural requirements have not been included to create traps for the unwary, nor to afford unwarranted opportunities for obstruction on the part of objecting landlords who have not themselves been significantly affected by any particular omission to comply with them.” 80. Finally, at para 100, this Court placed emphasis on the need to avoid increasing the risk that, by having to make multiple applications, lack of funds might prevent an otherwise deserving RTM company from enforcing its statutory right to manage. It continued: “Therefore, to impose on a RTM company an obligation to re-start the process if it happens to omit to comply with any procedural requirement would tend to undermine to an unwarranted degree the ability of tenants and RTM companies to pursue the remedy in respect of problems regarding the management of their building which Parliament intended should be available to them. It is only where a landlord or other stakeholder can show that it has lost a right to assert an objection which has substantive force in the context of the legislative scheme that it may be inferred that the transfer of the right to manage should be voidable and capable of being set aside by the person affected.” 81.

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Respondent Tom Mountford Hugo Murphy (Instructed by Mishcon de Reya LLP) LADY SIMLER (with whom Lord Lloyd-Jones, Lord Hamblen, Lord Leggatt and Lord Richards agree): The question on this appeal concerns the scope of the protection from unlawful discrimination afforded to part-time workers under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (“the 2000 Regulations”). Regulation 5(1) of the 2000 Regulations gives a part-time worker the right not to be treated less favourably than the employer treats a comparable full-time worker. However, by regulation 5(2) this right applies “only if— (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds.” The question raised by the appeal is whether the right only applies where the part-time worker establishes that part-time status was the sole ground or reason for the less favourable treatment in question, rather than simply an effective cause of it. 2. The question arises in the following way. The appellant, Warren Augustine, was a private hire driver who worked for the respondent, a small business called Data Cars Ltd, as an employee in 2016. He worked fewer hours per week than typical full-time drivers. All drivers (whether full or part-time) were charged a weekly fee (described as a “circuit fee”) to access the respondent’s booking system. The circuit fee was set at a fixed rate for all drivers regardless of the number of hours they worked. Mr Augustine claimedthat the application of the fixed circuit fee was less favourable treatment of him as a part-time driver contrary to regulation 5 because it had the effect that he paid a higher fee per hour to drive than a comparable full-time driver. The employment tribunal’s primary finding (on two separate grounds which were overturned on appeal) was that Mr Augustine was not treated less favourably than a comparable full-time driver. In case that was wrong, the tribunal also considered whether that treatment was on the ground that Mr Augustine was a part-time worker. The tribunal dismissed the claim. It found that the reason Mr Augustine was charged a circuit fee was that it was necessary to enable the respondent to earn revenue from its business; it was not because he worked fewer hours than some of his colleagues. Even if there was less favourable treatment on the ground of part-time worker status, the claim would fail because the circuit fee was not charged on the “sole ground” that he was a part-time worker. 3. Mr Augustine appealed. On the question at the heart of the appeal, his case was and remains that the test set by the words “on the ground that” is a well-known causation test in discrimination law extending to cover situations where the protected status or characteristic is an effective cause but not the sole cause of the less favourable treatment complained about. The contrary argument rests principally on the fact that, although the 2000 Regulations do not themselves refer to the “sole” ground for treatment, they ought to be read consistently with the framework agreement on part-time work concluded on 6 June 1997 (“the Framework Agreement”), to which member states of the European Union were required to give effect by Directive 97/81/EC of 15 December 1997 (the “Part-time Work Directive”). Clause 4.1 of the Framework Agreement provides that part-time workers shall not be treated less favourably than full-time workers “solely because they work part time unless different treatment is justified on objective grounds” (emphasis added). 4. Both the Employment Appeal Tribunal (Eady P, Gemma Todd and Dr Gillian Smith), referred to below as “the EAT” ([2024] EAT 117; [2025] ICR 19) and the majority in the Court of Appeal (Bean and Edis LJJ, [2025] EWCA Civ 658; [2025] ICR 1404) agreed with the appellant’s reasoning and would have concluded that it was an error to ask whether part-time status was the sole ground for the treatment. Both held nevertheless, that they were bound to follow a contrary decision of the Inner House of the Court of Session in Scotland (McMenemy v Capita Business Services Ltd [2007] CSIH 25; [2007] IRLR 400 (“McMenemy”)). (The Court of Appeal’s approach to precedent was based on a recent judgment in another case which treated as effectively binding a decision of a court of coordinate jurisdiction in another part of the United Kingdom, R (Jwanczuk) v Secretary of State for Work and Pensions [2023] EWCA Civ 1156; [2024] KB 275, which has since been disapproved by this court, [2025] UKSC 42; [2026] AC 699.) Applying McMenemy,the Court of Appeal dismissed the appeal as part-time status was not the sole ground for the less favourable treatment. The contrary argument was accepted by Elisabeth Laing LJ in the Court of Appeal. She held that the reasoning in McMenemy is correct in law and that regulation 5(1) of the 2000 Regulations only applies where the sole ground for the less favourable treatment is that the worker is part-time. The Court of Appeal granted permission to appeal to this court so that the causation issue could be resolved on a UK-wide basis. I record the court’s gratitude for the fact that both parties have had the benefit of pro bonorepresentation in the Court of Appeal and in this court. Without it, it is possible that neither of these parties would have been in a position properly to advance the legal arguments necessary to resolve the issue of general public importance raised by the appeal. The 2000 Regulations were made under section 19 of the Employment Relations Act 1999 (the “1999 Act”) to implement the Part-time Work Directive. In turn, the Part-time Work Directive was introduced to implement the Framework Agreement, to which member states were required to give effect, and which was annexed to it. It follows that the legislative starting point is the Framework Agreement and the Part-time Work Directive. The Framework Agreement 7. The Framework Agreement was an agreement negotiated between the social partners, that is, two broad supranational groups representing organised labour and industry/employer representative bodies. As Mr Mountford (counsel for the respondent) explained, the protection of part-time workers was a contentious subject in Europe, and there were difficulties in reaching agreement about the form which any such protection should take. That is illustrated by the fact that the European Commission proposed nine draft Directives on atypical work between 1982 and 1990, only one of which (making limited provision about health and safety) was adopted. The British Government vetoed a further attempt at wider legislation in 1994. Against this background, the European Commission used a new procedure for making social policy, involving consultation with the European social partners, to regulate part-time work. That procedure was established by the Agreement on Social Policy concluded between the member states of the European Community with the exception of the United Kingdom ([1992] OJ C 191/91, the “Social Policy Agreement”), which was annexed to the Social Protocol contained in the Maastricht Treaty on European Union signed in 1992. The United Kingdom was not originally a signatory to the Social Policy Agreement but acceded to it in 1997. The Social Policy Agreement introduced a mandatory consultation process and also provided by article 4 that “management and labour” could enter into “dialogue ... at Community level”, which “may lead to … agreements” that could in turn be “implemented ... at the joint request of the signatory parties, by a Council decision on a proposal from the Commission,” in which case the Council would act by qualified majority. This enabled instruments to be adopted even if unanimity could not be reached within the Council. In December 1997, having consulted the social partners, the Commission proposed and the Council adopted several Directives on the basis of the Social Protocol, including the Part-time Work Directive (extended to the United Kingdom by Directive 98/23/EC) and subsequently Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed term work (the “Fixed-term Work Directive”). Both Directives implemented framework agreements which had been concluded between the social partners in accordance with the Social Protocol and they are in materially similar terms. The Framework Agreement (on part-time work) made clear that it sought to promote part-time work on a basis acceptable to both employers and workers and to establish a framework for eliminating discrimination between part-time workers and full-time workers (see the Preamble). Clause 3 defined “part-time worker” and “comparable full-time worker”. The latter is defined as a full-time worker in the same establishment, with a similar contract and engaged in similar work (with due regard being given to other considerations such as seniority, qualifications and skills). If there is no comparable full-time worker in the same establishment, “the comparison shall be made by reference” to other listed matters, which include that the comparison can be “in accordance with national law, collective agreements or practice”. 11. Clause 4.1 is central to the argument on this appeal. Clause 4 is headed “Principle of non-discrimination” and reads (with emphasis added): In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. The arrangements for the application of this clause shall be defined by the Member States and/or social partners, having regard to European legislation, national law, collective agreements and practice. Where justified by objective reasons, Member States after consultation of the social partners in accordance with national law, collective agreements or practice and/or social partners may, where appropriate, make access to particular conditions of employment subject to a period of service, time worked or earnings qualification. Qualifications relating to access by part-time workers to particular conditions of employment should be reviewed periodically having regard to the principle of non-discrimination as expressed in Clause 4.1.” Clause 6.1 provides that member states and/or social partners “may maintain or introduce more favourable provisions than set out in this agreement”. In other words, a minimum floor of rights was established, but domestic enactments could legislate on a wider basis than the Framework Agreement afforded. It was also possible for the minimum requirements to be spelled out more clearly in domestic legislation given that the Framework Agreement was a negotiated instrument whereas the domestic legislation was not. The Part-time Work Directive The Directive itself is short. Its stated purpose in article 1 is to implement the Framework Agreement. Article 2 required member states to “bring into force the laws, regulations and administrative provisions” necessary to comply with it. Articles 3 and 4 were formal provisions. 14. The parties to the appeal emphasised certain recitals to the Part-time Work Directive including the following: Recital (10) records the view of the Council that “management and labour” are as a rule “closer to social reality and social problems”. Recital (11) records that in relation to the Framework Agreement, “the signatory parties wished to conclude a framework agreement on part-time work setting out the general principles and minimum requirements for part-time working; whereas they have demonstrated their desire to establish a general framework for eliminating discrimination against part-time workers and to contribute to developing the potential for part-time work on a basis which is acceptable for employers and workers alike”. Recital (14) records that the Directive “binds the Member States as to the result to be achieved, whilst leaving national authorities the choice of form and methods”. Recital (15) makes clear that the Directive “does not go beyond what is necessary for the attainment of [its] objectives”. Recital (16) records “with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves member states free to define those terms in accordance with national law and practice … providing that the said definitions respect the content of the Framework Agreement.” Recital (18) records that the European Commission had drafted its proposal for a Directive on part-time work, “in compliance with Article 2(2) of the Agreement on social policy which provides that Directives in the social policy domain ‘shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings’”. Recital (23) refers to the “Community Charter of the Fundamental Social Rights of Workers” which “recognises the importance of the fight against all forms of discrimination …” Recital (24) refers to the European Convention on Human Rights. The 2000 Regulations Section 19(1) of the 1999 Act required the Secretary of State to make regulations to secure that “persons in part-time employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than persons in full-time employment.” That is a wide regulation-making power. Expressly without prejudice to that broad general objective, the regulations were also to comply with the United Kingdom’s obligations under the Part-time Work Directive requiring member states to implement the Framework Agreement (section 19(4)(a)). In principle, the Part-time Work Directive could have been implemented directly under section 2(2) of the European Communities Act 1972. But that would have excluded pay protection from the regulation of part-time working conditions as a matter of vires because Directives implementing framework agreements cannot as a matter of EU Treaty provisions extend to cover pay. It was therefore necessary to give an enabling power to go further than the Part-time Work Directive if the intention was to include pay protection. 17. The Consolidated Explanatory Notes to the Bill which became the 1999 Act confirm this (para 170), explaining that the section 19 enabling power was necessary given this limitation and explaining that “in relation to part-timers, the Government believes pay should be covered at the same time as other employment conditions. The powers under the European Communities Act 1972 which are usually used to implement EU Directives are not sufficiently wide to go beyond the scope of the Directive in this way, so the [section] provides powers to do this.” The Notes continued (para 171): “The regulations will primarily address discrimination in non-statutory terms and conditions, as statutory employment rights in the UK do not discriminate against part-time workers. The powers are widely drawn and the Government intends to consult fully on how they should be used, by publishing draft regulations for comment. The Government’s current expectation is that the regulations will draw on precedents under current legislation relating to employment rights and non-discrimination. Clause 33 provides that the regulations will be subject to affirmative resolution procedure.” The consultation indicated in para 171 took place and draft regulations were published for consultation and comment prior to the enactment of the 2000 Regulations. The 2000 Regulations are directed at prohibiting less favourable treatment as regards the terms of a part-time worker’s contract compared with a full-time worker and prohibiting other detriments (regulation 5(1)). The basic scheme is that the claimant must first identify a comparable full-time worker; he or she must then establish less favourable treatment and satisfy the tribunal that this treatment is on the ground that the worker is a part-time worker. If these elements are established, the onus shifts to the employer to show that there is an objectively justifiable reason for the less favourable treatment. Regulation 2 defines “full-time” and “part-time” workers. A worker is a comparable full-time worker in relation to a part-time worker if, at the time of the alleged less favourable treatment, “both workers are (i) employed by the same employer under the same type of contract, and (ii) engaged in the same or broadly similar work” having regard to qualification, skills and experience; and they work or are based at the same establishment (unless there is no such full-time worker working or based at the part-time worker’s establishment, in which case the otherwise qualifying full-time worker can work or be based at a different establishment) (regulation 2(4)). Apart from two limited exceptions in regulations 3 and 4 (where additional protection is given toworkers changing from part-time to full-time status or the reverse and a hypothetical comparator must be used), regulation 2 thus makes clear that in general a claimant must rely on an actual comparator and cannot rely on a hypothetical one. 22. The right given to part-time workers by regulation 5 covers direct discrimination only. Unusually for direct discrimination, a defence of objective justification is available. It is defined as follows: A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker— by being subjected to any other detriment by any act, or deliberate failure to act, of his employer. The right conferred by paragraph (1) applies only if— the treatment is on the ground that the worker is a part-time worker, and In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate. Accordingly, the protection in regulation 5 extends to contractual pay and other terms and conditions (though not overtime), including, for example, contractual sick pay, access to occupational pension schemes, training and annual leave entitlement. Part-time workers must generally receive the same treatment in this regard (on a pro rata basis) as comparable full-time workers and the “pro rata principle” is the presumptive means of determining whether there has been less favourable treatment and must be applied unless it is inappropriate. It is defined by regulation 1(2) to mean that “where a comparable full-time worker receives or is entitled to receive pay or any other benefit, a part-time worker is to receive or be entitled to receive not less than the proportion of that pay or other benefit that the number of his weekly hours bears to the number of weekly hours of the comparable full-time worker”. Part-time workers who believe that they have suffered less favourable treatment may make a written request of the employer for a written statement of the reasons for the less favourable treatment (regulation 6). The employer must respond within 21 days of the request. The statement is admissible in proceedings; and the tribunal may in certain circumstances draw appropriate inferences from the failure to provide such a statement. Regulation 7 gives employees and workers protection against victimisation in relation to the 2000 Regulations. It does so by treating as unfairly dismissed (for the purposes of Part X of the Employment Rights Act 1996) an employee who is dismissed “if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in paragraph (3)” and by giving similar protection to workers in relation to detrimental treatment (excluding dismissal, see regulation 7(5)). Regulation 7(3) provides that the “reasons or, as the case may be, grounds are …” various acts done to enforce the 2000 Regulations, including alleging an infringement, bringing proceedings, giving evidence, and requesting a written statement of reasons. Regulation 8 is headed “Complaints to employment tribunals etc” and establishes a right for a worker to present a complaint to the employment tribunal that his employer has infringed regulations 5 or 7(2) (though this is subject to the exclusion in regulation 7(5)). If a worker presents a complaint under regulation 8, “it is for the employer to identify the ground for the less favourable treatment or detriment” (regulation 8(6)). Where an employment tribunal finds a complaint to be well founded, it may take any of the steps set out in regulation 8(7) as it considers just and equitable, including ordering the employer to pay compensation (regulation 8(7)(b)) in such sum as it considers just and equitable in all the circumstances having regard to the infringement and any loss attributable to the infringement (regulation 8(9)). There are other provisions governing the assessment of compensation in regulation 8(10)–(14) but it is unnecessary to set these out. It will be plain from the above that regulation 5(2)(a) of the 2000 Regulations does not include the word sole or solely in setting the test for causation in the right not to be treated less favourably than a comparable full-time worker. Nonetheless, the case against the appellant is that the causation test in the 2000 Regulations should be interpreted narrowly, consistently with the Part-time Work Directive and clause 4.1 of the Framework Agreement as requiring that part-time status be the sole or exclusive cause of the impugned less favourable treatment. The employment tribunal found that Mr Augustine’s work pattern as a driver for the respondent was to work on average 34.8 hours per week. The tribunal (Employment Judge Mary Siddall) made no finding as to what constituted full-time hours for this business but found that drivers were working over 43 hours per week on average, with some drivers working 60 or more hours. On this basis the tribunal found that the appellant was a part-time worker. His chosen comparator worked an average of over 90 hours per week, and although this was described as at the upper end of the range, the tribunal did not find this comparator inappropriate. The fact that all drivers were required to pay the fixed circuit fee (fixed at £148 per week) to access the respondent’s booking dispatch system irrespective of the number of hours worked meant that the circuit fee had a harsher impact on those working fewer hours who paid a higher fee per hour to drive than a comparable full-time worker and accordingly took home less pay per hour than the full-time driver. The employment tribunal held, however, that there was no less favourable treatment on the basis that treating all workers the same is not discriminatory. That finding was overturned by the EAT whose decision on this point has (correctly) not been challenged. Alternatively, the employment tribunal held that any less favourable treatment was not “solely” because Mr Augustine worked part time. Rather, this was the way private hire companies like the respondent operated to earn revenue from the business. The tribunal also accepted that, at the material time, the respondent may not have had access to the type of software operated by others which allowed for a commission type arrangement rather than charging drivers a fixed fee and that it had only been able to move to such a system after Mr Augustine left its employment. Even if there was less favourable treatment on the ground of part-time worker status, the tribunal concluded accordingly that the differential impact of the fixed circuit fee was not on the sole ground that Mr Augustine was a part-time worker and, applying the decision in McMenemy, the claim failed. The EAT applied the pro rata principle and held that failure to apply a circuit fee that took into account hours worked was less favourable treatment. The EAT accepted that Mr Augustine was, at least in part, treated less favourably because he worked part-time but the same could be said of many drivers who worked full time (meaning, in this case, more than 43.17 hours per week) but less hours than the chosen comparator (who worked over 90 hours per week). The imposition of the fixed circuit fee would still have involved less favourable treatment in those other cases. The EAT could not therefore say that part-time status was the sole ground for the less favourable treatment and, regarding itself bound by McMenemy, thought the claim under regulation 5 must inevitably fail on that basis, and dismissed the appeal. 33. I agree with the EAT that, applying the pro rata principle, it was inherent in the higher per hour fee paid by Mr Augustine to work as a driver compared to his full-time comparator that there was at least some less favourable treatment on the ground of part-time worker status. He inevitably took home a lower proportion of his earnings than a comparable full-time driver. If he had instead worked full-time (taking 43.17 hours or more per week as full-time), he would still have been disadvantaged by the fixed fee system when compared with his comparator (working an average of over 90 hours a week), albeit not to as great an extent. Nonetheless, it is inherent in a provision which treats workers more or less favourably depending on the number of hours they work that it will treat a part-time worker less favourably than a full-time comparator. Accordingly, his less favourable treatment compared with a person working 43.17 hours per week is attributable to his lower working hours or part-time status and this less favourable treatment at least is properly characterised as “on the ground” that he was a part-time worker. As for the chosen comparator’s hours worked over and above 43.17 hours per week, this is a matter that might properly be considered at the stage of determining what if any compensation should be awarded on a just and equitable basis (as Mr Jones KC, counsel for Mr Augustine, has previously conceded). The EAT gave Mr Augustine permission to appeal because it regarded the reasoning in McMenemy on this point as wrong in law. In its view, regulation 5 applies if a worker’s part-time status is an effective cause of the less favourable treatment; the claimant does not need to show that his part-time status was the sole cause of the less favourable treatment. As I have said, the Court of Appeal was divided on this question. Edis LJ (giving the lead judgment for the majority) said (para 40) that the correct construction of the plain words of the 2000 Regulations extends the remedy for part-time discrimination to cases where the necessary causal link can be found applying the usual approach to causation in UK law. The less favourable treatment must be substantially caused by the part-time status of the person affected by it. He endorsed the reasoning of the EAT below (and an earlier Employment Appeal Tribunal decision in Sharma v Manchester City Council [2008] ICR 623 (“Sharma”)) and considered that the decision in McMenemy was wrong. Edis LJ nevertheless dismissed the appellant’s appeal on the basis that the Court of Appeal was (as he understood the position at that time) bound to follow McMenemy in the interests of consistency between Scotland and England and Wales. Bean LJ gave a separate concurring judgment to which I return below. 36. Elisabeth Laing LJ, on the other hand, held (para 68) that the right conferred by regulation 5(1) “applies only if (a) the treatment is on the ground that the worker is a part-time worker” (regulation 5(2), her emphasis). She said that the regulations refer to “the reasons for the treatment” (regulation 6(1)) and distinguish between the formula “the reason (or if more than one, the principal reason)” (regulation 7(1)) and the formula in regulation 5(2) (“on the ground that”), and between that formula and the formula used in regulation 7(2) (done “on a ground” specified in sub-paragraph (3)). The draftsman knew that there could be more than one reason, or ground for, treatment, and chose to refer to one groundin the singular in regulation 5(2), and to use the phrase “only if”. She held that for those reasons, the test for causation in the 2000 Regulations is the same narrow test as the test in clause 4.1 of the Framework Agreement. She said that even if that were not clear, there is no sign in the language of regulation 5(2) that the draftsman intended the test for causation to be less strict than the test in clause 4.1. Since McMenemy adopted that approach, she agreed with its reasoning about the test for causation in the 2000 Regulations and would have dismissed the appeal. 37. The Court of Appeal did not identify any other ground for the less favourable treatment apart from Mr Augustine’s part-time status. Mr Mountford maintains that even in relation to the difference between Mr Augustine’s treatment as a part-time worker and an average full-time driver (working 43.17 hours per week), part-time status was not the sole ground for his less favourable treatment. He submits that charging a fixed fee was standard in the industry for businesses of this kind to generate revenue and the software system may not have allowed for a different arrangement. The first point seems to me to be no more than an argument that everybody was discriminating. The second appears to be speculative (and the employment tribunal itself put the point no higher). In any event, while I recognise that there can be an overlap between the reasons for less favourable treatment and the objective justification for that treatment, it does seem to me that these factors are better viewed as potential objective justifications for less favourable treatment. No doubt a fee of some kind had to be charged to generate revenue from the respondent’s drivers, but not necessarily a fixed fee that had no regard to the number of hours worked. Nor did the employment tribunal find as a fact that limitations in the respondent’s software system were the reason for charging a fixed fee without some form of rebate or adjustment to mitigate the effect of lower working hours. These are points that might have explained why it was reasonable and justified to charge a fixed circuit fee, but they were not advanced as objective justification and, on the contrary, the respondent made clear before the employment tribunal that, if there was prohibited less favourable treatment, it was not seeking to justify it. Nonetheless, I proceed on the basis, as did the courts below, that part-time status was not the sole ground for the less favourable treatment in this case. Before addressing the meaning of the causation test imposed by the 2000 Regulations, it is helpful to contextualise the phrase “on the ground that” (and “on the grounds of”). Both are well-established in equality law at both European and domestic level. 39. In Europe, three Directives on sex equality were initially adopted by the EU member states in the 1970s following a Social Action Programme launched by the Council of the European Communities. They were Council Directive 75/117/EEC of 10 February 1975 addressing the principle of equal pay for men and women; Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women in employment and training; and Council Directive 79/7/EEC of 19 December 1978 on equal treatment for men and women in social security. Each prohibited direct discrimination “on grounds” (see article 1 of Directive 75/117/EEC; articles 2(1), 3(1), and 5(1) of Directive 76/207/EEC) or “on ground” (article 4(1) of Directive 79/7/EEC) of sex. Later Directives adopted in the 1980s onwards used similar words. Likewise, section 1(1) of the now-repealed Sex Discrimination Act 1975 defined unlawful direct sex discrimination as involving less favourable treatment “on the ground” of sex and section 1(1)(a) of the now-repealed Race Relations Act 1976 defined unlawful direct race discrimination as occurring where less favourable treatment was “on racial grounds” (ie “colour, race, nationality or ethnic or national origins”, see section 3). In a direct discrimination case this requirement makes it necessary to ask why the complainant received the less favourable treatment complained of (ie what was the reason for the treatment in question). Generally, treatment will be on the ground of a protected characteristic (sex, race, etc) if the characteristic consciously or subconsciously influenced the treatment, or if the basis for the treatment was inherently tied to the protected characteristic (see R (E) v Governing Body of JFS [2009] UKSC 15; [2010] 2 AC 728 (per Lord Mance, para 78)). Motive, intention, or purpose are irrelevant, so that, for example, a criterion of state pensionable age when the age is different for men and women is inherently discriminatory on the basis of sex, the subjective reason for the differential treatment being irrelevant (see R v Birmingham City Council Ex p Equal Opportunities Commission (No 1) [1989] AC 1155, per Lord Goff, p1194D and James v Eastleigh Borough Council [1990] 2 AC 751, per Lord Goff, p772D–E). 41. In Nagarajan v London Regional Transport [2000] 1 AC 501, Lord Nicholls (with whom Lords Hutton and Hobhouse agreed) said (p 511A): “This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?” Lord Nicholls acknowledged (pp 512H–513B): “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.” 42. No new principle was being established in this case. The significant influence or effective cause test had been referred to in many earlier cases, as Lord Nicholls made clear in the passage just cited. Among these was O’Neill v Governors of St Thomas More Roman Catholic Voluntary Aided Upper School [1997] ICR 33, where the EAT (Mummery J) held that a “condition of liability in the expression ‘on the ground of her sex’ is an objective test of causal connection” and not intentions, motives, beliefs or subjective purposes. He continued (p 43G) that the basic question is: “what, out of the whole complex of facts before the tribunal, is the ‘effective and predominant cause’ or the ‘real or efficient cause’ of the act complained of?” Further, as he explained (p 43G–H): “The approach to causation is further qualified by the principle that the event or factor alleged to be causative of the matter complained of need not be the only or even the main cause of the result complained of… ‘It is enough if it is an effective cause…’” 43. The test developed in the context of direct discrimination has also since been applied in other situations where domestic law uses the phrase “on the ground that”. For example, the words “on the ground that” remain a standard part of the test applied in detriment cases under the Employment Rights Act 1996 (see, for example, section 47B which provides that a “worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”). Mr Mountford suggested thatat the time the 2000 Regulations were introduced, this protection was not understood to be subject to a test of effective causation. He relied on Aspinall v MSI Mech Forge Ltd EAT/891/01 (heard on 5 July 2002, with judgment delivered on 25 July 2002), in which the Employment Appeal Tribunal held (para 14) that “For there to be detriment under section 47B ‘on the ground that the worker has made a protected disclosure’ the protected disclosure has to be causative in the sense of being ‘the real reason, the core reason, the causa causans, the motive for the treatment complained of’”. Leaving aside the fact that Aspinall does not appear to say that the protected disclosure must be the sole or exclusive reason for the detrimental treatment, Aspinall was decided in 2002, two years after the 2000 Regulations were introduced. In any event, that reasoning (based on the sole or exclusive ground) was shown to be wrong in Fecitt v NHS Manchester [2011] EWCA Civ 1190; [2012] ICR 372, also a case about whistleblowing protection, where it was argued that the “proper test in this context is not whether the decision was materially (in the sense of more than trivially) influenced by the proscribed reason but ... whether the proscribed reason was the sole or principal reason for the action taken” (para 38). The Court of Appeal disagreed, holding (albeit obiter, para 43) that “liability arises if the protected disclosure is a material factor in the employer’s decision to subject the claimant to a detrimental act”. In other words, consistently with the well-established approach to the “on the ground that” test, it need not be the sole factor or reason for the impugned decision or treatment. What follows from this discussion is that, by the time the 2000 Regulations were introduced, the meaning of the test imposed by the words “on the ground (or grounds) of” in an anti-discrimination context was clear and authoritatively established. It meant that if the prohibited ground had a significant or substantial influence on or was an effective cause of the impugned treatment or outcome, direct discrimination would be made out. The prohibited ground did not have to be the main ground, still less the sole ground or reason for the treatment. The court was referred to several decisions of the European Court of Justice/Court of Justice of the European Union (“the CJEU”) concerning the interpretation and application of the Part-time Work Directive and clause 4.1. Though none of these cases addresses the specific point in issue in this appeal, both sides seek to draw assistance from these decisions for their respective cases on causation. 46. Mr Mountford submitted that the sole causation test in clause 4.1 (which excludes multiple cause scenarios from the ambit of protection as a threshold issue) has been repeatedly stated by the CJEU. He relied on several cases, principal among them being Wippel v Peek & Cloppenburg GmbH & Co KG (Case C-313/02)[2005] 1 CMLR 9 (“Wippel”), a decision of the Grand Chamber of the CJEU on a reference for a preliminary ruling, where the core complaint of less favourable treatment was that the part-time worker was on a zero hours contract whereas others (both part-time and full-time workers) were offered rostered (or fixed) hours contracts. In two paragraphs of the judgment the CJEU stated the effect of clause 4.1 of the Framework Agreement as follows: “part-time workers are not to be treated less favourably as regards employment conditions than comparable full-time workers on the sole ground that they work part time unless different treatment is warranted on objective grounds” (para 42, and para 54 is in very similar terms). 47. It is true that the CJEU restated rather than recited the statutory language but that restatement does not suggest an approach which attempts to isolate a sole cause for the differential treatment, not least because this was not a case in which it was even suggested that there was another independent cause for the differential treatment, and there was simply no discussion by the CJEU of that issue. In fact, the CJEU emphasised that the prohibition on discrimination against part-time workers is “merely a particular expression of a fundamental principle of Community law, namely the general principle of equality” (para 56) and said nothing to suggest that the words “solely because” should lead to a departure from ordinary EU equality law principles when interpreting the Part-time Work Directive. The case actually turned on the question of comparability (see paras 57–62) with the CJEU ultimately concluding that no full-time worker had the same type of contract or employment relationship as Ms Wippel and it followed that there was no less favourable treatment within the meaning of clause 4 of the Framework Agreement. In several subsequent decisions drawn to our attention, the CJEU simply reiterated its restatement (as per paras 42 and 54 of Wippel) without any discussion of the words “solely because” or their effect. I cannot see that any of these cases take the matter further. 49. Mr Jones relied on MK v Lufthansa CityLine GmbH (Case C-660/20) [2024] IRLR 74, where a part-time pilot complained that his employer’s approach of calculating additional salary by reference to uniform thresholds of monthly flying hours constituted discrimination against him as a part-time worker. The CJEU was asked whether a provision requiring employees to reach the same threshold of flying hours to be entitled to an increased rate of salary constituted discrimination against part-time workers. At paras 36–38 the CJEU explained the approach to interpreting clause 4.1 of the Framework Agreement as follows: “[the Framework Agreement] seeks both to promote part-time work and eliminate discrimination between part-time workers and full-time workers … The prohibition of discrimination laid down in Clause 4.1 of that framework agreement is simply a specific expression of one of the fundamental principles of EU law, namely the general principle of equality … In the light of those objectives, that clause must be interpreted as articulating a principle of EU social law which cannot be interpreted restrictively(judgment of 7 July 2022, Zone de secours Hainaut-Centre, C-377/21, EU:C:2022:530, paragraph 43 and the case-law cited).” Having concluded that the applicant was in a position comparable to that of a full-time worker (para 46) the CJEU then considered whether the treatment of part-time workers was less favourable, reasoning that it was, essentially because: “... a part-time pilot must complete the same number of flying duty hours as a full-time pilot to be entitled to that remuneration, without that threshold being lowered in a manner proportionate to the length of his or her individual working time. Under those circumstances, part-time pilots do not reach the trigger thresholds required to be entitled to additional remuneration, or are much less likely to do so than full-time pilots” (para 47). Mr Jones submitted that the CJEU heard argument in this case that the reasons for adopting the uniform thresholds on working hours were the need to compensate pilots for particularly heavy workload levels, and to dissuade them from excessive overworking (paras 20 and 59). That is true. But these reasons were not advanced as independent reasons or grounds for the differential treatment (ie other than the pilot’s part-time status), and the CJEU did not engage with any argument to that effect. Instead, the other reasons were treated as potential objective justification for the otherwise discriminatory treatment (paras 59–67) and ultimately rejected on this basis. 52. A second case on which Mr Jones placed particular reliance as a clear case where there was more than one ground for the differential treatment is ZT v Ministero dell’Istruzione e del Merito (Case C-268/24) ECLI:EU:C:2025:526 (“Lalfi”). This was a ruling on a preliminary reference concerning clause 4.1 of the Fixed-Term Work Directive (which is in materially identical terms). The applicant in Lalfi was a non-tenured teacher who held short-term supply teaching posts and was refused an annual allowance to support in-service training in circumstances where national legislation reserved the benefit to tenured teachers and to non-tenured teachers who held supply teaching posts for the whole academic year. Mr Jones submitted that if one asks the question, why was the teacher denied the benefit, the answer would be that it was both because she was employed as a fixed-term worker and on contracts which covered less than the full academic year. The Italian Government accordingly argued that any difference in treatment was not between fixed-term and permanent workers, but rather between two categories of fixed-term worker. That argument was rejected by the CJEU. Mr Jones relied on a passage at paras 49–50 stating: “… it follows from the wording of clause 4(1) of the Framework Agreement that it is sufficient for the fixed-term workers in question to be treated in a less favourable manner than permanent workers in a comparable situation in order for those fixed-term workers to claim the benefit of that clause … It follows that a difference in treatment for the purposes of clause 4(1) of the Framework Agreement cannot be excluded on the sole ground that that difference in treatment affects only some of the fixed-term workers, since otherwise the scope of protection against discrimination conferred by that provision, which must apply to all fixed-term workers … would be unjustly reduced.” He submitted that the fact that only some fixed-term workers were treated adversely suggests that some other reason must have been in play. However, the CJEU simply examined whether the non-tenured teachers holding short-term supply teaching posts were in a comparable situation to tenured teachers and, having held in principle that they were (para 56), concluded that the difference in treatment did not appear to be objectively justified (albeit leaving the final decision to the referring court). In Lalfi the practice in question necessarily and inherently imposed a greater burden on part-time workers than on full-time workers because it afforded higher pay to those who worked more hours and was therefore prima facie discriminatory. It is true, as Mr Jones submitted, that nobody thought it mattered what the reason or rationale for the rule was until after that first step was established; the rationale or explanatory reason fell to be considered at the objective justification stage and did not alter the fact of the inherently discriminatory treatment. However, the CJEU did not focus on the words “solely because”nor did it recognise or address the possibility that this was a case with more than one possible cause of the less favourable treatment alleged. Instead, as it seems to me, the court was simply looking at two categories of fixed-term workers to see if there was less favourable treatment between them and their comparators. The parties also referred the court to several domestic decisions of the Employment Appeal Tribunal and to McMenemy in the Inner House. It is sufficient for the purpose of this appeal to refer just to McMenemy and Sharma to identify the two conflicting approaches. 56. McMenemy concerned a part-time worker who worked on Wednesday, Thursday and Friday each week and complained that he did not receive the benefit of public holidays, unlike full-time workers. The tribunal found that any full-time worker who worked a five-day week which did not include Mondays also did not get the benefit of public holidays and that a part-time worker who worked Monday to Wednesday, rather than Wednesday to Friday, wouldget the benefit. It was agreed that this involved less favourable treatment, but both the tribunal and appeal tribunal in that case held that the reason had nothing to do with part-time status and depended on the fact that he did not work on the day the public holidays fell. The Court of Session upheld the decision. I do not agree with its reasoning on the need to consider the employer’s intention in determining the reason for the treatment. That reasoning is plainly wrong. But it is not material to the point in issue in our case, and I consider that the result reached in McMenemy is in any event correct on the facts. On causation, it was common ground between the parties in McMenemy that the 2000 Regulations should be construed consistently with the Part-time Work Directive (para 5) and neither side suggested that the 2000 Regulations went further than the Part-time Work Directive in conferring protection on part-time workers or were intended to do more than to bring UK law into line with EU law (para 6). 58. As for the word “solely” in clause 4.1 of the Framework Agreement, the Inner House referred to para 54 of the CJEU’s judgment in Wippel (see above, para 46) which said: “clause 4 of the Framework Agreement annexed to Directive 97/81, in regard to employment conditions, precludes part-time workers from being treated less favourably than comparable full-time workers on the sole ground that they work part-time unless different treatment is warranted on objective grounds.” Lord Nimmo Smith explained (para 6): “In our opinion, the language of clause 4.1 of the Directive connotes the need to consider whether there is a causative connection between the discrimination complained of by the worker and the part-time nature of the worker’s employment. As we have said, the prohibition is against less favourable treatment of part-time workers, than comparable full-time workers, for the reason that they work part-time and for that reason alone. …” Having referred to an earlier case, Gibson v Scottish Ambulance Service EATS/0052/04, 16 December 2004 (“Gibson”) where a sole ground test was adopted (para 11, Gibson), Lord Nimmo Smith agreed and continued: “… The part-time worker who complains that his employer is treating him less favourably than he does a comparable full-time worker in breach of the legislation must therefore establish that the employer intends to treat him less favourably on the sole ground that he is a part-time worker (see the passage in Wippel quoted). Additional reasons for construing the word ‘solely’ in this way are that, as counsel for the respondents pointed out, there is, first, no reference in the Directive to indirect discrimination and, secondly, different treatment, if established, may nevertheless be ‘justified on objective grounds’.” 60. McMenemy was not cited in Sharma though Gibson was. Sharma, in essentials, concerned cuts made to the working hours of part-time lecturers on a particular part-time contract while no cuts were made to the hours worked by full-time and other part-time lecturers whose contracts did not allow for any cuts to be made. The employment tribunal dismissed the claim, regarding itself as bound by Gibson, and holding that the treatment was not on the ground of part-time status per se but was because the claimants were a particular type of part-timer. The Employment Appeal Tribunal (Elias P sitting with members) held that the tribunal had erred in law (paras 48–51): In our judgment, the reference to ‘solely’ in Directive 97/81 is simply intending to focus upon the fact that the discrimination against a part-timer must be because he or she is a part-timer and not for some other independent reason. To take a simple example, if the employer decided to discriminate against all part-timers over the age of 30 it could be said that there were two reasons for the discrimination: being a part-timer, and being of a certain age. Similarly, if the employer deliberately discriminates against all his part-timers in factory A but not those with identical full-time comparators in factory B, can it really be said that, because only some part-timers are selected for the less favourable treatment, the Directive (and by extension the Regulations) are not intended to be applicable? In our judgment it is inconceivable that the Directive was not intended to outlaw such treatment (subject to justification) and we have no doubt whatsoever that it would inevitably be construed by the European Court of Justice to do so. Any other conclusion would wholly undermine the very purpose of the Directive. The fact that not all part-timers are treated adversely does not mean that those who are cannot take proceedings for discrimination if being part-time is a reason for their adverse treatment. In our judgment, once it is found that the part-timer is treated less favourably than a comparator full-timer and being part-time is one of the reasons, that will suffice to trigger the Regulations.” On that basis, the appeal tribunal upheld the claimants’ appeal. In any event, it considered that the employment tribunal had been wrong to characterise the less favourable treatment in that case as being for more than one reason - properly analysed, it was only because the claimants were part-timers. Finally, Elias P added that, in any event, it was “open to a member state to give more favourable protection than the Directive affords, and accordingly in our judgment there is no need to read limitations in the Directive into the Regulations. In this connection it is to be noted that the Regulations were made under section 19 of the Employment Relations Act 1999, which confers a broad enabling power not just limited to implementing the terms of the Directive” (para 53). It is unclear why the word “solely” was included in clause 4.1 of the Framework Agreement and what it was intended to achieve. There are two possibilities. The first is that it was intended to rule out cases involving multiple causes for differential treatment as the respondent contends and Elisabeth Laing LJ held. The other possibility is that the word “solely” was simply making clear that claims based on treatment which is effectively caused by independent reasons, with part-time status merely being a background factor or happenstance, are excluded. 63. On the one hand I consider that these are strong words and that there is force in para 66 of Elisabeth Laing LJ’s judgment where she said: “In my judgment it is clear that the test for causation in clause 4.1 is a narrow test. The important words are ‘solely because’. That phrase could not be clearer. That phrase is also used in [the fixed-term work Directive 99/70/EC], which has a similar provenance, but that phrase is not used in other instruments about discrimination in employment, as my summary of the relevant provisions of [the race discrimination Directive 2000/43/EC, the equal treatment Directive 2000/78/EC and the burden of proof Directive 97/80/EC] show. That clear meaning is not displaced by appeals to the reference in recital (11) to ‘eliminating discrimination against part-time workers’. That reference must be read in its full context, which I have quoted in para 51, above. Recital (11) does not support the idea that the social partners had agreed specific measures which would eliminate such discrimination. But even if it did, the reader does not know what specific measures have been agreed without considering the actual words of those measures, and, in particular, the words of clause 4.1. Given the apparent difficulty of reaching agreement, and the context, which is fully described in the Preamble to the Framework Agreement, there is every reason to give those words their natural meaning. They represent a compromise between competing factors, agreed by the social partners, after balancing their different interests.” (Emphasis in original.) It is true that the other Directives referred to, addressing unlawful discrimination in employment, concern what are described as “suspect grounds” (that is, sex, race, religion or belief, disability, age or sexual orientation) and define the principle of equal treatment as meaning that “there shall be no discrimination whatsoever” based on any of the grounds referred to, “either directly or indirectly”. The point has less force than it otherwise might, however, because the Framework Agreement is a negotiated instrument that reflects a compromise, and is not the product of an ordinary legislative process. Caution is therefore necessary before concluding that the principle of non-discrimination was intended to be differently understood in this context. Nonetheless, it is true that the extent of the protection afforded to part-time workers is carefully calibrated: this is clear from the absence of any protection for indirect discrimination which given the segregated nature of a lot of part-time work may have a disproportionately significant effect, the fact that an actual comparator is generally required, and that objective justification of direct discrimination is available. The broad protective purpose referred to and relied on by Elias P in Sharma cannot be taken too far in these circumstances. 66. On the other hand, we were not shown any judgment of the CJEU addressing the meaning and effect of the words “solely because”. Decisions by employers (and others) are frequently reached for more than one reason and, in this context particularly, it is easy to think of situations where an employer might point to budgetary (or other) constraints as another reason for the treatment if that would avoid the protection afforded by the Part-time Work Directive (and therefore avoid any need for objective justification). But the authorities we were shown (eg Wippel) simply recite the same “sole” ground phrase without saying what it means or indeed ruling out the possibility of a case being established despite the fact of more than one cause for the treatment alleged. It seems that the CJEU has not been invited to, and has not, decided any of these cases by pointing to some reason for the adoption of an impugned rule or treatment which is additional to part-time status, or by seeking to isolate a “sole” reason for differential treatment when considering discrimination against part-time workers. The CJEU jurisprudence does, as Mr Jones submitted, contain some examples of treatment being found to require objective justification even where there may have been other reasons relied on to explain it: see, for example, MK (ensuring that heavier workloads were properly compensated). But, as he acknowledged, they are mainly cases where the competing cause of the less favourable treatment was not clearly independent but was more in the nature of an underlying motive or rationale. The cases do not address the situation said to arise in our case where there are said to be two (or more) wholly distinct causes for the less favourable treatment. So, the most that can be said is that the point has simply not been decided. Nor do I find much assistance in the provisions of the Part-Time Work Convention 1994 (International Labour Organisation (“ILO”) Convention No 175) and the accompanying ILO Recommendation 182 relied on by Mr Jones as a pre-existing instrument from which the words “solely because” were lifted. In its finally agreed form, article 5 of the ILO Convention provides: “Measures appropriate to national law and practice shall be taken to ensure that part-time workers do not, solely because they work part time, receive a basic wage which, calculated proportionately on an hourly, performance-related, or piece-rate basis, is lower than the basic wage of comparable full-time workers, calculated according to the same method” (Emphasis added.) I do not consider that the debates reflected in the travaux préparatoiresconcerning the word “solely” in that context are relevant to the meaning of the text which later came to be included in the Framework Agreement. The language of clause 4.1 of the Framework Agreement does not correspond precisely to the language of article 5, and though it is possible that this is the origin of the wording adopted in clause 4.1, it does not help in understanding why that wording was adopted or what it was intended to achieve. It seems to me that the link is too tenuous. Moreover, the fact that there is (and was) no defence of objective justification in article 5 may explain the language of “solely because” as being aimed at clarifying that where differences in pay reflect genuine differences in the way work is organised or done (for example by reference to seniority rights, merit systems or shift premiums), these would not amount to contraventions of the prohibition. In other words, the words “solely because” allowed for wage differences etc which are justified for reasons other than part-time status. But it is hard to see how that assists in understanding the use of the same language in the Framework Agreement, in a clause making a defence of objective justification expressly available to address underlying or additional reasons or rationales for the impugned treatment yet still retaining the word “solely”. Ultimately, for the reasons I shall explain below, I have concluded that it is not necessary to decide which of the alternative meanings of the words “solely because” in clause 4.1 is correct. I turn to those reasons now. Even if the test for causation in clause 4.1 of the Framework Agreement annexed to the Part-time Work Directive is the narrow test contended for by the respondent, it is common ground that the Secretary of State could, in the 2000 Regulations, have relaxed that test and given more favourable protection than the Part-time Work Directive requires. In that case, there would be no need (nor any justification) to read the limitations in clause 4.1 into the 2000 Regulations. 73. This point was made clear by Lord Mance (giving the judgment for the majority) in United States of America v Nolan [2015] UKSC 63; [2016] AC 463 at para 14: “… it is a cardinal principle of European Union and domestic law that domestic courts should construe domestic legislation intended to give effect to a European Directive so far as possible (or so far as they can do so without going against the ‘grain’ of the domestic legislation) consistently with that Directive: Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135, Vodafone 2 v Revenue and Customs Comrs [2010] Ch 77, paras 37-38 and Swift [trading as A Swift Move) v Robertson [2014] 1 WLR 3438, paras 20-21. But that means avoiding so far as possible a construction which would have the effect that domestic implementing legislation did not fully satisfy the United Kingdom’s European obligations. Where a Directive offers a member state a choice, there can be no imperative to construe domestic legislation as having any particular effect, so long as it lies within the scope of the permitted. Where a Directive allows a member state to go further than the Directive requires, there is again no imperative to achieve a ‘conforming’ interpretation. It may in a particular case be possible to infer that the domestic legislature did not, by a domestic formulation or reformulation, intend to go further in substance than the European requirement or minimum. R (Risk Management Partners Ltd) v Brent London Borough Council [2011] 2 AC 34, considered below, is a case where the Supreme Court implied into apparently unqualified wording of domestic Regulations a limitation paralleling in scope that which had been implied by the Court of Justice into general wording of the Directive to which the Regulations were giving effect: see Teckal Srl v Comune di Viano (Case C-107/98) [1999] ECR I–8121. It concluded that the two had been intended to be effectively back-to-back. A reformulation may also have been aimed at using concepts or tools familiar in a domestic legal context, rather than altering the substantive scope or effect of the domestic measure from that at the European level. But that is as far as it goes.” (See also Matthews v Kent and Medway Towns Fire Authority [2006] UKHL 8; [2006] 2 All ER 171, paras 24 and 37 per Lady Hale.) Plainly, if regulations were made which apparently failed to enshrine in UK law the minimum standards required by a Directive, the courts would endeavour to construe the regulations so that those minimum standards were protected consistently with the UK’s international obligations. However, there was nothing to prevent the United Kingdom from providing protection which goes beyond those minimum standards. In the case of the 2000 Regulations, there is no doubt that the minimum requirements set by the Part-time Work Directive were satisfied. There is also no doubt that the Part-time Work Directive left open to member states the choice as to how the protection should be implemented and the possibility of introducing more favourable protection in doing so (see, for example, clause 6.1, para 12 above). 75. Further, section 19(1) of the 1999 Act is a broad enabling power not limited to implementing the terms of the Part-time Work Directive. Rather, it gave free-standing power to the Secretary of State to secure in domestic law that “persons in part time employment are treated, for such purposes and to such extent as the regulations may specify, no less favourably than persons in full-time employment”. In other words, neither the purposes nor the extent of the protection was fixed. Moreover, the government made clear its intention to consult fully on “how [the regulations] should be used, by discussing with interested parties and publishing draft regulations for comment”, demonstrating that wider protection was contemplated (Explanatory Notes, para 217). A consultation was in fact carried out and this directly informed the scope of the 2000 Regulations, as discussed by Julia Lourie in Part-time Work: Research Paper 00/50, House of Commons, 15 May 2000 which identifies the changes made following consultation. That is inconsistent with the respondent’s contention that section 19 was framed widely only in order to give the Secretary of State power to go further than the Part-time Work Directive in respect of pay because pay was not covered by it. 76. Having been given significant leeway by section 19(1), it is striking that the Secretary of State did not adopt the “solely because” language in clause 4.1 by way of the causation test to be applied but instead adopted language in the 2000 Regulations that comes directly from pre-existing equality legislation and which had been the subject of authoritative treatment by the courts. The obvious implication is that this was deliberate and that the “effective cause” jurisprudence was to be followed. Contrariwise, in replacing the “solely because” test in clause 4.1 with the “on the ground of” test the meaning of which was well-established by then, there is no indication that the courts were meant instead to depart from the jurisprudence which dealt with that pre-existing legislation and made clear that the protected characteristic had to be an effective or substantial cause, but not the sole cause, of the asserted discriminatory treatment. Like Edis LJ, I find it hard to think of any good reason why the 2000 Regulations should be construed as if they incorporated the word “solely” from clause 4.1 of the Framework Agreement when a deliberate decision to omit it was necessarily taken (para 40 of the Court of Appeal judgment). 77. Elisabeth Laing LJ (supported by Mr Mountford) considered it necessary for there to be a clear indication in the 2000 Regulations that the “unusually strict test for causation in clause 4.1” (para 67) had been relaxed and she therefore looked to see whether there was language in the 2000 Regulations showing that the Secretary of State had that deliberate intention, concluding that there was absolutely no sign in the language of regulation 5(2) that the test for causation was intended to be less strict than the test in clause 4.1. I disagree with that approach. As Lord Mance made clear in Nolan, it may in a particular case be possible to infer that the domestic legislature did not, by a domestic formulation or reformulation, intend to go further in substance than the European requirement or minimum; but it is not necessary to show a deliberate intention to do so. In my judgment there is nothing to suggest that Parliament did not intend to go further than the Part-time Work Directive here. Indeed, the reverse is true. Moreover, it does not matter whether there was a deliberate intention to widen the causation test, or whether the causation test adopted simply reflected what the Part-time Work Directive was understood to mean or require. What matters is what was intended by the language used in the 2000 Regulations themselves. Accordingly, there is no imperative to achieve a conforming interpretation in this case. The common ground position adopted in McMenemy was wrong to say otherwise (paras 5 and 6 referred to above at para 57). The only question that remains to be answered is what the causation test in regulation 5(2) means and requires. To recap, the right conferred by regulation 5(1) “applies only if— (a) the treatment is on the ground that the worker is a part-time worker, and (b) the treatment is not justified on objective grounds” (regulation 5(2)). The words “solely because” do not appear in the 2000 Regulations. Contrary to the arguments advanced by Mr Mountford, the word “only” and the use of a singular “ground” do not support any particular causation test. 81. First, the word “only” is undoubtedly similar to the word “solely”, but this does not mean that regulation 5(2)(a) is to be construed as if it read “the treatment is solely because the worker is a part-time worker”. The word “only” in regulation 5(2) limits the scope of the right to protection by requiring the less favourable treatment to be both “on the ground” of part-time status and not justified on objective grounds. So, it qualifies both conditions and not just the first (in sub-paragraph (2)(a)). Put another way, it emphasises that both conditions must be satisfied. The word “only” does not otherwise qualify the necessary causal link between the treatment and the status – it is in the wrong place as a matter of grammar to do that. Had this been the intention, words clearly to that effect could have been used in regulation 5(2)(a), for example by indicating that the right to protection arises where the treatment “is only on the ground that the worker is a part-time worker.” Moreover, if the Part-time Work Directive does impose a sole ground test, it is striking that different words were used. As Bean LJ explained (para 99), it would have been easy enough to have used the words “solely because” in sub-paragraph (2)(a) of the 2000 Regulations if the intention was simply to reproduce the wording of clause 4.1. That was not done, and there is no warrant for rewriting the regulation. 82. Secondly, I disagree with the reasoning of Elisabeth Laing LJ that the use in regulation 5(2)(a) of the word “ground” in the singular suggests that the treatment should be found to be on one ground only for the right to protection to arise. Regulations 6 and 7 do not support this conclusion and are directed at different issues. Regulation 6 refers to “the reasons for the treatment” because it concerns a pre-action stage when the employee does not know why he or she received treatment perceived to be less favourable on part-time worker grounds and enables such information to be requested from the employer. Regulation 7(1) adopts the well-established formula “the reason (or, if more than one, the principal reason)” from the unfair dismissal provisions in Part X of the Employment Rights Act 1996 since it concerns protection for unfair dismissal. Rather, regulation 5(2)(a) is directed at a single protected ground, namely part-time status; the word ground is therefore in the singular (as it was in relation to the single ground of sex, but not race which encompasses several different sub-grounds—nationality, ethnicity, etc). I cannot see that the different use of the words “reason”, “reasons” and “ground” in these regulations tells one anything about the meaning of the word “ground” in the singular in sub-paragraph (2)(a). Nor does the fact that the protection afforded by the 2000 Regulations is more narrowly confined than other equality legislation help in determining the scope of the causation test to be applied. It is true that in various ways the 2000 Regulations are structurally different in their approach and narrower than other legislative protection given to those with protected characteristics. But it does not follow in any way that the approach to causation is of a piece with those limitations and must be read as requiring a sole ground only. On the contrary, the focus must be on the words of regulation 5(2)(a), read in context and having regard to its particular purpose: see among many authorities on the proper approach to statutory interpretation, R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255, paras 29–31; R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28; [2023] 1 WLR 2594 (“PACCAR”), paras 40–42. 85. In my view, to require that the claimant’s status as a part-time worker be an effective cause of the less favourable treatment, even if not the sole cause of that treatment, is consistent both with the clear language of regulation 5(2) and with the protective purpose of this regulation. To hold otherwise is inconsistent with the approach standardly taken to questions of causation in discrimination cases and risks uncertainty and unreasonable outcomes. Although the examples of perverse outcomes given by Elias P in Sharma (para 49) were criticised as unsustainable by Elisabeth Laing LJ and Mr Mountford, it does seem to me that there is force in his conclusion to this effect. The EAT in this case (para 72) referred to their collective industrial experience of issues relating to part-time work, and to the fact that discrimination against part-timers often takes place because of factors associated with part-time status so that limiting the protection to less favourable treatment solely on the ground of part-time work risks excluding many cases where the part-time nature of the work might be the effective, but not the sole, reason for that treatment. An imaginary hypothetical example illustrates the unreasonableness: an employer who denies a particular benefit to all “women over 6 feet tall” will mean that a tall woman who suffers the disadvantage does so for two reasons: her sex and her height. Under anti-discrimination law as it has developed, there would clearly be discrimination on the ground of sex because sex is an effective cause of the treatment, albeit not the sole cause. If the employer instead refused a benefit to “part-time workers over 6 feet tall”, it is hard to see why the same analysis should not apply, especially where a defence of objective justification is available to the employer. It seems to be counter to even the limited purpose of the 2000 Regulations to construe them as avoiding protection for treatment which inherently and necessarily disadvantages part-time workers (unless that treatment can be justified). The fact that not all part-timers are treated adversely should not mean that those who are cannot take proceedings for discrimination if being part-time is an effective cause (or reason) for their adverse treatment. The existence of other causes of the treatment may be relevant to the question whether the treatment is justified on objective grounds or to the amount of compensation to be awarded for the unlawful treatment on a just and equitable basis. But the existence of other causes should not and, in my judgment, does not mean that the right not to be treated less favourably on the ground of part-time status for the purposes of regulation 5(1) does not arise. For these reasons (which are essentially the same as those given by the Court of Appeal majority), I would allow the appeal. The 2000 Regulations prohibit less favourable treatment of part-time workers where their part-time status is an effective cause of the impugned treatment. It need not be the sole cause.

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Save the Children UK is the latest charity to benefit from a £500 donation from AlphaBiolabs via the company’s Giving Back initiative. For every testing instruction received from family law and social work professionals, AlphaBiolabs enters the customer’s name into its bi-monthly Giving Back draw to ‘win’ a £500 donation for their chosen charity. Monika Humagain, a Solicitor at Harringtons in […] The post AlphaBiolabs’ supports Save the Children UK with latest Giving Back donation appeared first on Venables Legal Resources.

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The EU General Court has given important guidance on how the European Commission should apply the EU’s Digital Markets Act (DMA), after ruling on challenges brought by Meta and Apple against aspects of their designation as ‘gatekeepers’ under the EU’s digital markets competition regime, experts have said.

Valeriy Ernestovich Drelle (Respondent) v Servis-Terminal LLC (In Liquidation in the Russian Federation) (Appellant) LORD BRIGGS AND LORD HAMBLEN (with whom Lord Sales, Lord Stephens and Lord Doherty agree): The main issue on this appeal is whether a creditor may rely upon an unrecognised and unregistrable foreign judgment as the basis for being owed a debt, sufficient to entitle the creditor (subject to other conditions not in issue) to present a bankruptcy petition under section 267 of the Insolvency Act 1986 (the “1986 Act”). By “unrecognised” it is meant that the foreign judgment has not been made the subject of recognition proceedings in the UK. A judgment is “unregistrable” if the statutory process for registration of certain foreign judgments, such as that provided by the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the “1933 Act”), does not apply to it. The matter was first raised in the High Court on appeal from the Insolvency and Companies Court (“ICC”) judge. The High Court judge thought that the creditor could do so, but the Court of Appeal thought not. The creditor appeals to this court. The appellant, Servis-Terminal LLC (“ST”), is a Russian company in bankruptcy and acts by its trustee-in-bankruptcy, Mr Sergey Lisin. The respondent, Mr Valeriy Drelle (“Mr Drelle”), is the former Director General of ST. He was also a shareholder. The largest creditor of ST is Gazprom Neft (“GPN”). GPN is a subsidiary of PJSC Gazprom (“Gazprom”), a publicly listed company engaged in energy production, majority owned (directly or indirectly) by the Russian State. GPN became a “designated person” for sanctions purposes on 10 January 2025. In December 2011, ST advanced a loan of RUB 2 billion (the “Loan”) to Fort-Steiton LLC (“Fort-Steiton”), a Russian company, with the benefit of a personal guarantee from Fort-Steiton’s owner, a Mr Anatoly Motylev (“Mr Motylev”), the chairman and majority shareholder of the Russian Credit Bank (“RCB”). In or around July 2015, RCB collapsed. As a result, ST lost around RUB 7.9 billion held in its accounts with RCB. The majority of these funds came from GPN. Shortly after RCB’s collapse, Mr Motylev left Russia. The Loan was never repaid. Mr Motylev was declared bankrupt in Russia in February 2018, and in England in November 2020. In April 2017, the Arbitrazh Court of Yaroslavl Region declared ST bankrupt and appointed Mr Lisin as its Trustee-in-Bankruptcy. In March 2018, ST issued proceedings against Mr Drelle in the Arbitrazh Court of Yaroslavl Region. The basis of ST’s claim against Mr Drelle was that, by causing ST to advance the Loan, he had acted unreasonably and in bad faith, and had caused loss to ST. Mr Drelle defended the claim on a number of grounds, including that the Loan had been entered into in order to generate a profit; there were no grounds to doubt Fort-Steiton’s solvency; he had acted in accordance with established business practice in obtaining a guarantee from Mr Motylev and had no grounds to doubt Mr Motylev’s creditworthiness since he was the owner of a banking group and considerable assets; ST had issued several other loans to Fort-Steiton which had all been repaid with interest; and the shareholders had approved the granting of the Loan. The proceedings in the Arbitrazh Court of Yaroslavl Region were conducted over a 14-month period and involved ten hearings as well as written submissions. In a judgment dated 24 May 2019 the judge held that Mr Drelle had breached his duties to ST and he was ordered to pay RUB 2 billion to ST. Mr Drelle appealed to the Court of Appeal (Second Arbitrazh Appeal Court). The appeal was conducted by way of full review. Following a hearing on 31 July 2019, in a judgment dated 6 August 2019, the Court of Appeal dismissed the appeal. Mr Drelle appealed to the Cassation Instance Arbitrazh Court (Arbitrazh Court of Volgo-Vyatsky District). In a judgment dated 6 November 2019, the appeal was dismissed. Mr Drelle appealed to the Supreme Court of the Russian Federation. His application was considered by a single judge who held that there were no grounds for the appeal. By a ruling dated 17 February 2020, the appeal was dismissed. On 9 October 2020, ST served a statutory demand under section 268(1)(a) of the 1986 Act (the “Statutory Demand”) on Mr Drelle based on the judgment of the Arbitrazh Court of the Yaroslavl Region dated 24 May 2019 (the “Russian Judgment”). On 13 October 2020, ST presented a bankruptcy petition (the “Petition”) on an expedited basis under section 270 of the 1986 Act. On 27 October 2020, Mr Drelle issued an application to set aside the Statutory Demand (the “Set Aside Application”). The grounds of the Set Aside Application (which were the same grounds as those opposing the making of a bankruptcy order) were that the Russian Judgment debt was disputed on bona fide and substantial grounds because the Russian judgments were improperly obtained, biased and/or contrary to natural justice and English public policy, and further or alternatively that they were obtained by fraud and/or collusion. Mr Drelle adduced witness evidence from Alyona Zheglova, ST’s finance officer, in relation to his contention that the outcome of the Russian proceedings was predetermined against him, as well as expert evidence on Russian law from Maxim Kulkov, and on State interference in Russian legal proceedings from John Lough. ST also adduced expert evidence in those fields. The trial of the Petition took place on 28, 29 and 30 June 2022 before ICC Judge Burton. In her judgment, which was handed down on 9 March 2023, ICC Judge Burton found that the Russian Judgment debt was not disputed on bona fide and substantial grounds: [2023] EWHC 506 (Ch); [2024] BPIR 285. Mr Drelle obtained permission to appeal against the Bankruptcy Order on the basis that ICC Judge Burton’s conclusion that the Russian Judgment debt was not disputed on bona fideand substantial grounds was wrong. He also raised for the first time the contention that the Russian Judgment did not constitute a petition debt since it had not been the subject of recognition proceedings. The appeal was heard by Richards J on 15 and 16 January 2024 (the “First Appeal”). By his judgment, which was handed down on 11 March 2024, Richards J dismissed the First Appeal: [2024] EWHC 521 (Ch); [2024] BPIR 496. Mr Drelle obtained permission to appeal from the Court of Appeal on the ground that Richards J had erred in holding that an unrecognised foreign judgment is a debt within the meaning of section 267(2)(b) of the 1986 Act (Ground 1) and also on the ground that he had applied the wrong standard of appellate review to the decision of ICC Judge Burton and that that judge’s conclusion that the Russian Judgment debt was not disputed on bona fideand substantial grounds was wrong (Grounds 2 to 4). The hearing of the appeal took place on 11 and 12 December 2024 before Lords Justice Newey, Popplewell, and Snowden (the “Second Appeal”). On 31 January 2025, judgment was handed down: [2025] EWCA Civ 62; [2026] Ch 1; [2025] BPIR 564. The Second Appeal was allowed on the ground that a bankruptcy petition cannot be presented on the basis of an unrecognised foreign judgment (Ground 1). In view of the fact that Mr Drelle had succeeded on Ground 1 and because the Court of Appeal did not want to say anything which might prejudice the hearing of any recognition proceedings concerning the Russian Judgment which ST might bring, the Court of Appeal did not address Mr Drelle’s remaining grounds of appeal (Grounds 2 to 4) relating to the decision that the Russian Judgment debt was not disputed on bona fideand substantial grounds. 25. The Petition was brought under section 267 of the 1986 Act. This section is headed “Grounds of creditor’s petition” and provides so far as relevant as follows: A creditor’s petition must be in respect of one or more debts owed by the debtor, and the petitioning creditoror each of the petitioning creditors must be a person towhom the debt or (as the case may be) at least one ofthe debts is owed. (2) Subject to the next three sections, a creditor’s petition may be presented to the court in respect of a debt ordebts only if, at the time the petition is presented— the amount of the debt, or the aggregate amount of the debts, is equal to or exceeds the bankruptcy level, the debt, or each of the debts, is for a liquidated sum payable to the petitioning creditor, or one or more of the petitioning creditors, either immediately or at some certain, future time, and is unsecured, the debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay, and there is no outstanding application to set aside a statutory demand served (under section 268 below) in respect of the debt or any of the debts.” Section 382(1) of the 1986 Act provides that “Bankruptcy debt”, in relation to a bankrupt, means (subject to subsection (2)): “any of the following— any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy ….” “For the purposes of references in this Group of Parts [which comprises sections 251A to 385] to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in this Group of Parts to owing a debt are to be read accordingly.” As to the grounds for the Petition, the Russian Judgment was unsecured and was for a liquidated sum well in excess of the bankruptcy level of £5,000. No suggestion had been made that Mr Drelle was able to pay that sum, or had a reasonable prospect of being able to pay it, and the Statutory Demand based on the Russian Judgment debt had not been satisfied. The key question is whether the Russian Judgment meets the requirements of section 267(2)(b) of the 1986 Act and, more specifically, whether it gives rise to a “debt … payable to [ST] … either immediately or at some certain, future time.” 29. Richards J held that the Russian Judgment is a “debt” within the meaning of section 267(2)(b) even though it is unrecognised. His essential reasons for so concluding were as follows: Rule 51 of Dicey, Morris & Collins, The Conflict of Laws (16th ed) (“Dicey”) provides that a foreign judgment which is not impeachable (as found by ICC Judge Burton) is “conclusive as to any matter thereby adjudicated upon” and cannot be impeached for any error of fact or law. The effect of Rule 51 is that the Russian Judgment is to be taken as conclusive of any matter that it adjudicates. Accordingly, for the purposes of section 267, it is to be assumed conclusively that Mr Drelle presently owes RUB 2 billion to ST, as determined by the Russian Judgment. The fact that ST has only an unrecognised foreign judgment, does not prevent the Russian Judgment constituting a “debt”. It finally and conclusively requires payment of a liquidated sum that is not subject to any contingency. The “obstacle” of the need for recognition presents a barrier to enforcement that is no different in nature to the barrier to enforcement that faces a creditor who has an English trade debt, but no judgment. 30. The leading judgment of the Court of Appeal was given by Newey LJ who held that, not having been the subject of recognition proceedings, the Russian Judgment was not capable of providing the basis for a bankruptcy petition. His essential reasons for so concluding were as follows: Dicey Rule 45 shows that there is a general principle that a foreign judgment has no “direct operation” in England. A foreign judgment is enforced by bringing an action on the judgment, not by execution. The bringing of a bankruptcy petition is seeking enforcement and involves using the foreign judgment as a “sword”. Dicey Rule 51 confirms that an unrecognised foreign judgment can be determinative of a matter but that rule is concerned with defences, not with use of such a judgment as a “sword”. The principle that a foreign judgment “has no direct operation” in England reflects the common law’s aversion to enforcing a foreign exercise of sovereign power. That suggests that use of an unrecognised judgment as a “sword” is objectionable. The revenue rule (that the English courts have no jurisdiction to entertain an action for the enforcement of a revenue law of a foreign state) has a similar root. The revenue rule prevents a foreign tax as being regarded as a “debt” for the purpose of section 267 of the 1986 Act. That supports the contention that an unrecognised foreign judgment, arising, as it does, from an exercise of sovereign power, is likewise not to be seen as giving rise to a “debt”. In re A Judgment Debtor [1939] Ch 601 (“Judgment Debtor”) the Court of Appeal decided that, under the 1933 Act, a bankruptcy petition cannot be presented on the strength of an unregistered (but registrable) foreign judgment. That would mean that a holder of an unrecognised judgment would be in a better position than a holder of an unregistered judgment were it the case that a petition can be founded on the former. 32. The essential issues which arise on the appeal may be stated as follows: At common law, what is the legal effect, if any, of an unrecognised foreign judgment for a debt or definite sum of money? The construction of section 267 of the 1986 Act—does such a judgment give rise to a “debt” within the meaning of section 267 such that a bankruptcy petition can be presented in reliance upon it? Article 13 of the United Nations Commission on International Trade Law of 30th May 1997 (“the Model Law”) - does article 13 of the Model Law mean that a “foreign creditor” under an unrecognised foreign judgment for a debt has the same rights as a creditor with an equivalent claim under English law? If necessary, Mr Drelle also seeks by respondent’s grounds of appeal to uphold the order made by the Court of Appeal to set aside the Bankruptcy Order on the ground that ICC Judge Burton erred in concluding that the debt was not disputed on bona fideand substantial grounds and Richards J erred in upholding that decision. The Court of Appeal gave permission to appeal on this issue for the Second Appeal but did not address it. Issue (1): At common law, what is the legal effect, if any, of an unrecognised foreign judgment for a debt or definite sum of money? 34. There are various Dicey Rules which are of relevance to the appeal. In particular: “Rule 45—A judgment of a court of a foreign country (hereinafter referred to as a foreign judgment) has no direct operation in England but may Rule 46—(1) …a foreign judgment in personam given by the court of a foreign country with jurisdiction to give that judgment…and which is not impeachable…, may be enforced by a claim or counterclaim for the amount due under it if the judgment is for a debt, or definite sum of money (not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty); and Rule 51—a foreign judgment which is a final and conclusive on the merits and not impeachable…is conclusive as to any matter thereby adjudicated upon, and cannot be impeached for any error either There is no issue in this case that the Russian Judgment was given by a court of competent jurisdiction, that it is final and conclusive, and that, as matters stand, it is not impeachable, as held by ICC Judge Burton. There is also no issue that the status of the judgment is governed by common law as there is no statutory scheme, such as the 1933 Act, applicable to Russian judgments. It is not therefore a registrable judgment. Mr Charles Samek KC for Mr Drelle submits that the fact that an unrecognised judgment has no “direct operation” in England means that it is of no legal effect unless and until it is recognised. A foreign court’s authority, carrying with it powers of enforcement and sanction, ends at the border of the state in which it sits. Before a foreign judgment can be deployed offensively in England, it must itself first be recognised by the English court. Mr Mark Phillips KC for ST submits that the fact that an unrecognised foreign judgment for a debt or definite sum of money may be enforced by an action on the judgment shows that that judgment does have legal effect. If it were otherwise no action could be brought upon the judgment. This is what he calls the obligation principle, which he submits is of long standing and has never been doubted. These rival contentions require an analysis of the juridical basis upon which an action may be brought on a foreign judgment for a debt or definite sum of money. As stated in Dicey para 14-007: “English courts have recognised and enforced foreign judgments from the 17th century onwards. It was at one time supposed that the basis of this enforcement was to be found in the doctrine of comity. English judges believed that the law of nations required the courts of one country to assist those of any other, and they feared that if foreign judgments were not enforced in England, English judgments would not be enforced abroad. But later this theory was superseded by what is called the doctrine of obligation”. As Dicey explains, the doctrine of obligation or, as we prefer to call it, the obligation principle, was first stated in two decisions of Parke B in the 1840s and later endorsed in two decisions of Blackburn J in 1870. Russell v Smyth (1842) 9 M & W 810; 152 ER 343 concerned the enforceability in England of an order for expenses (costs) made by the Court of Session in Scotland. The court held that an action of assumpsit or debt could be brought to enforce the order. Parke B (at p 347) stated the applicable principle as follows: “Where the Court of a foreign country imposes a duty to pay a sum certain, there arises an obligation to pay, which may be enforced in this country”. Williams v Jones (1845) 13 M & W 628; 153 ER 262 concerned the enforceability in England of a judgment for a debt given by the county court of Caernarvonshire, an inferior court not of record. It was held that an action of debt could be brought upon the judgment. Parke B (at p 265) stated as follows: “The principle on which this action is founded is, that, where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. It is in this way that the judgments of foreign and colonial courts are supported and enforced, and the same rule applies to inferior courts in this country, and applies equally whether they be courts of record or not.” 43. This statement of principle was cited and applied by Blackburn J in Godard v Gray (1870) LR 6 QB 139. That case concerned a judgment given by a French court for an amount of freight due under a charterparty governed by English law. The fact that the judgment may have been wrong as a matter of English law was held to be no defence to an action brought upon the judgment. Blackburn J (in reasons given with Mellor J) stated (at p 148): “It is not an admitted principle of the law of nations that a state is bound to enforce within its territories the judgment of a foreign tribunal. Several of the continental nations (including France) do not enforce the judgments of other countries, unless where there are reciprocal treaties to that effect. But in England and in those states which are governed by the common law, such judgments are enforced, not by virtue of any treaty, nor by virtue of any statute, but upon a principle very well stated by Parke, B., in Williams v. Jones [citing the passage set out at para 42 above].” Blackburn J further explained (at p 150) that the foreign judgment: “…was considered, not as merely prima facie evidence of that cause of action for which the judgment was given, but as in itself giving rise, at least prima facie, to a legal obligation to obey that judgment and pay the sum adjudged”. 45. Schibsby v Westenholz (1870) LR 6 QB 155 concerned a French judgment in default. It was held that it could not be enforced in England because the French court had no jurisdiction over the defendant. In giving judgment, Blackburn J (with whom Mellor, Lush and Hannen JJ agreed) endorsed what he had said in Godard v Grey in the following terms at p 1139: “It is unnecessary to repeat again what we have already said in Godard v. Gray. We think that, for the reasons there given, the true principle on which the judgments of foreign tribunals are enforced in England is that stated by Parke, B., in Russell v. Smyth, and again repeated by him in Williams v. Jones, that the judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on the defendant to pay the sum for which judgment is given, which the courts in this country are bound to enforce…” These cases clearly establish that the principle upon which foreign judgments for a debt are enforceable in England and Wales by an action on the judgment is that, at common law, such a foreign judgment itself gives rise to an obligation to pay the sum for which judgment has been given. This was recognised in the 1932 Report of the Foreign Judgments (Reciprocal Enforcement) Committee, chaired by Greer LJ, which led to the enactment of the 1933 Act (the “Greer report”). It summarised the common law as follows (at para 5): “If a foreign judgment fulfils the conditions required for its recognition in England as final and conclusive, and any sum of money certain is payable by one party to the other thereunder, the judgment itself creates in England a cause of action as for a debt in respect of the sum due thereunder. An action can be brought to recover the sum of money due under the judgment”. In Adams v Cape Industries plc [1990] Ch 433 (CA) Slade LJ (giving the judgment of the court) stated (at p 513) that it is “clear” that “at common law in this country foreign judgments are enforced, if at all, not through considerations of comity but upon the basis of a principle explained…by Parke B inWilliams v Jones”. He then cited the passage cited at para 42 above and said that Blackburn J “stated and followed the same principle” in Godard v Grey and Schibsby v Westenholz. In Owens Bank v Bracco [1992] 2 AC 443 (HL) Lord Bridge of Harwich (with whom the other Lordships agreed) stated (at p 484): “A foreign judgment given by a court of competent jurisdiction over the defendant is treated by the common law as imposing a legal obligation on the judgment debtor which will be enforced in an action on the judgment by an English court in which the defendant will not be permitted to reopen issues of either fact or law which have been decided against him by the foreign court.” Rubin v Eurofinance SA [2012] UKSC 46; [2013] 1 AC 236 (“Rubin”) concerned the enforceability of orders made in foreign bankruptcy proceedings against a person who was not present or resident in that country and had not submitted to the jurisdiction of the foreign court. It was held by the majority that since at common law and under the 1933 Act a judgment in personam would not be enforced in such circumstances, the court should not adopt a more liberal rule in the interests of the universality of bankruptcy. In his judgment Lord Collins of Mapesbury (with whom Lord Walker of Gestingthorpe and Lord Sumption agreed) observed (at para 5) that if the judgment debtors had submitted to the jurisdiction, then no issue would have arisen as “[e]nforcement would have been at common law”. 53. “The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633, per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc [1990] Ch 433, 513 and Owens Bank Ltd v Bracco [1992] 2 AC 443, 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150.” “But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law.” 55. If by “theoretical” Lord Collins meant that in many cases the juridical basis for the rule will not matter in practice, that is no doubt correct. There will, however, be cases where it does matter, as the present case illustrates. Another example of a case where it might matter is where the issue was one of limitation—see, for example, Berliner Industriebank AG v Jost [1971] 2 QB 463 in which, under the Limitation Act 1939, a common law obligation was held to be subject to the 6-year limitation period under section 2(1) rather than the 12-year limitation period applicable to judgments under section 2(4). If by “historical” Lord Collins meant that it is the product of history, then again that is correct. If, however, he meant that it is of historical rather than current significance then we respectfully disagree. The obligation principle remains the juridical basis of the enforcement of foreign judgments for a debt or definite sum of money as the cases referred to above, most of which were cited with apparent approval by Lord Collins in Rubin,make clear. We consider it most unlikely, however, that this is what Lord Collins meant as otherwise he would surely have identified (which he did not) what the alternative (modern) juridical basis is and why. In summary, the well-established common law principle is that a foreign judgment for a debt or definite sum of money gives rise to an obligation to pay the sum for which judgment has been given. That obligation arises when the final and conclusive judgment is given. It does not depend upon recognition. As noted in the Greer report, the cause of action is “as for a debt”. The Court of Appeal do not appear to have been addressed in detail on the obligation principle. Their conclusion that a foreign judgment has no legal effect until it is recognised is, however, contrary to that principle. We will now address the principal matters relied upon by the Court of Appeal for reaching the conclusion which they did. The Court of Appeal placed significant reliance upon the statement in Dicey Rule 45 that a foreign judgment has no “direct operation” in England. What this means is that it has no status as a judgment in England. As such, none of the processes of execution which would be available in respect of an English judgment are available in respect of a foreign judgment. So, for example, none of the methods of enforcing judgments set out in CPR 70 such as a third party debt order or a charging order or the appointment of a receiver can be invoked in respect of a foreign judgment. That “direct operation” is referring to processes of execution is borne out by the commentary at para 14-002 of Dicey. This states: “A foreign judgment has no direct operation in England. It cannot be immediately enforced by execution.” In other words, having no “direct operation” means it cannot be “enforced by execution”. That it does not mean that the judgment has no legal effect is made clear in the 1st edition of Dicey in 1896. In that edition Rule 88 stated that: “A foreign judgment has no direct operation in England” and the comment explained this by reference to execution: “A foreign judgment does not operate directly in England. The judgment of, e.g., a French Court, cannot be enforced here by execution”. Rule 94 stated that: “An invalid foreign judgment has…no effect”. By contrast, the comment did explain this in terms of it having no legal effect: “When it is established that a foreign judgment to which effect is to be given in England is invalid, the judgment has no effect in England”. A foreign judgment may, however, have indirect operation in England. Being able to sue on a foreign judgment for a debt or definite sum of money involves indirect reliance on the judgment. What is being sued upon is the common law obligation to pay the judgment sum, and that obligation is founded upon the foreign judgment itself, rather than on the underlying facts (such as a contract to pay) which led to the judgment. If the action succeeds then there will be an English judgment for which processes of execution are available. Where the judgment is not for a debt or definite sum of money then the underlying cause of action can be sued upon and the foreign judgment relied upon as being conclusive as to matters of fact and law determined thereby—see Dicey Rule 51 and Rule 45(2). Again, that involves the indirect operation of the foreign judgment. 62. The Court of Appeal relied upon the following passage from Briggs, The Conflict of Laws, 5th ed., at p 112: “The first rule of foreign judgments is that judgments of foreign courts have, as such, no legal effect in England, for foreign judges have no authority in England. Except where Parliament has provided otherwise, foreign judgments cannot be enforced in England by execution, and no person is in contempt of court, or otherwise in peril in England, if she fails to do what she has been ordered to do by a foreign judge. As judicial adjudication is an exercise of state sovereignty, this is obvious: state sovereignty ends at the border of the state, and while international comity may certainly require that respect be given to exercises of that power within the sovereign’s own territory, that is where the conventional obligations of comity end.” Professor Briggs is there stating that foreign judgments have no legal effect in England “as such”—ie as judgments. They can only have indirect effect or operation, as described above. As he states, that means that they “cannot be enforced in England by execution”. That foreign judgments do have legal effect is borne out by Professor Briggs’ endorsement and explanation of the obligation principle at p 121: “The foreign judgment, if it satisfies the requirements of the common law, is understood to create an obligation, a tie of law, by which the parties are bound and to which each may hold the other. The ‘doctrine of obligation’, which provides the basis and the intellectual justification for the common law recognition of judgments, was articulated 150 years ago in two classic judgments of the Court of Queen’s Bench, and was never doubted by Dicey.” He then comments that criticisms of that principle “need to be repudiated, firmly”. The Court of Appeal were wrong to say Dicey Rule 51 means that an unrecognised foreign judgment can only be used as a shield rather than a sword. Where the foreign judgment is for a debt or definite sum of money and an action is brought on the judgment it is clearly being relied upon as a sword. Similarly, if the findings of fact or law are relied upon as being conclusive in proceedings brought in reliance upon the underlying cause of action it is again being relied upon as a sword. Rule 51 draws no distinction between reliance upon the foreign judgment as being final and conclusive to support a claim or a defence. Dicey Rule 20 provides that: “English courts have no jurisdiction to entertain an action: For the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state” 67. The Court of Appeal placed significant reliance on the revenue rule. As stated by Newey LJ at para 43: “The significance of this for present purposes lies in the fact that there can, I think, be no doubt but that the ‘revenue rule’ precludes presentation of a bankruptcy petition in respect of a foreign tax liability. Nor did I understand Mr Phillips to dispute that. The ‘revenue rule’ must therefore serve to prevent a foreign tax from being regarded as a ‘debt’ in respect of which a petition could be presented notwithstanding the fact that nothing to that effect is expressed in section 267(2)(b) of the 1986 Act. More specifically, the fact that imposition of a tax involves an exercise of sovereign power must result in a foreign tax not being regarded as a ‘debt’ on which a bankruptcy petition can be presented. That tends to support the contention that an unrecognised foreign judgment, which has no ‘direct operation’ because it arises from an exercise of sovereign power, is likewise not to be seen as giving rise to a ‘debt’ capable of founding bankruptcy proceedings.” This is in our view a false analogy. The basis of the revenue rule is explained in Dicey para 8-002 as follows: “There is a well-established and almost universal principle that the courts of one country will not enforce the penal and revenue laws of another country. Although the theoretical basis for the Rule is a matter of some controversy, the best explanation, it is submitted, is that suggested by Lord Keith of Avonholm in Government of India v Taylor, that enforcement of such claims is an extension of the sovereign power which imposed the taxes, and ‘an assertion of sovereign authority by one State within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties.’” 69. There is a world of difference between a sovereign authority bringing a claim asserting a sovereign right, such as to a tax or penalty, and a private person bringing a claim asserting a private right, as in the present case. Even where the claim is brought by a sovereign authority the revenue rule does not apply where the claim does not involve the assertion of a public right but is of a kind which could be brought by any private citizen. This is borne out by this court’s recent decision in Skatteforvaltningen v Solo Capital Partners LLP [2023] UKSC 40; [2024] AC 539. In that case it was held that the revenue rule did not apply to a claim brought by the Danish national tax authority to recover tax refunds which it alleged had been fraudulently induced. As explained by Lord Lloyd-Jones (with whose judgment the other Justices agreed) at para 58: “In the present case, the appellants are undoubtedly able to point to prior exercises of sovereign power by Denmark in creating its laws relating to the taxation of dividends and in operating the tax system. This, however, merely provides the context for the present claims. The substance of the claims, as we have seen, does not involve any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power. On the contrary, the respondent is simply bringing restitutionary claims to recover monies of which it has been defrauded, a course open to any private citizen who had been similarly defrauded. Furthermore, as the Court of Appeal pointed out, the attempt to challenge that conclusion by seeking to characterise the payment of the refunds as sovereign acts does not assist the appellants. First, even if, notwithstanding the fact they were induced by fraud, the making of the payments was correctly characterised as a sovereign act, there is no reason why an attempt to recover the payments should be considered a vindication of sovereign power. Secondly, the respondent is not seeking to vindicate the payment but to invalidate them on grounds of fraud.” The claim brought by ST to found the Petition does not involve “any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power”. It is not only a claim that could be brought by any private citizen, it is in fact being brought by such a citizen. The revenue rule, and the principles underlying it, are of no relevance to the present case. Where it applies the court has no jurisdiction to entertain the action. This is so whether the foreign tax authority seeks judgment in England, or obtains a foreign judgment and then tries to get it recognised by an action on it. No such suggestion can be or is made here. The court clearly has jurisdiction to entertain an action on a foreign judgment for a debt or definite sum of money. Rule 46(1) itself clearly draws the distinction between an action on a foreign judgment for a debt or a definite sum of money and a revenue or penal claim by making it clear at (1)(a) that the common law action on the judgment will not lie if the sum in question is “payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty”. This will be addressed in more detail under Issue (2) below. In the present context, all that need be said is that there is no reason why the common law should operate in the same way as a statutory scheme, such as the 1933 Act. Just as the common law is not relevant to the operation of such a statutory scheme, that scheme is not relevant to and does not affect the (pre-existing) common law. Conclusion on Issue (1) At common law, the legal effect of an unrecognised foreign judgment for a debt or definite sum of money is that it gives rise to an obligation to pay the judgment sum. Issue (2): The construction of section 267 of the 1986 Act - does such a judgment give rise to a “debt” within the meaning of section 267 such that a bankruptcy petition can be presented in reliance upon it? The short question of construction lying at the heart of this appeal is whether the obligation to pay to which a foreign judgment gives rise, even prior to its recognition, is a “debt” within the meaning of that word when used in section 267 of the 1986 Act. We have set out the relevant part of section 267 above. By section 264(1)(a) a bankruptcy petition may be presented by any one or more of the individual’s creditors, but only on the grounds set out in section 267. All the cumulative conditions set out in section 267(2) assume that there must be a relevant debt, and section 267(1) requires that the debt must be owed by the debtor to the petitioning creditor. But the word “debt” is not elsewhere defined for the purposes of section 267, and the phrase “bankruptcy debt”, which is defined in section 382, is not used in section 267. That phrase is more concerned with who may prove in the bankruptcy, which is a different question from who may present a petition, and less restrictively circumscribed. 77. Although some of the concepts used to identify who may present a bankruptcy petition in the Bankruptcy Act 1914 (the “1914 Act”) are carried through to the 1986 Act, (such as the requirement that the debt be a liquidated sum payable immediately or at some certain future time), generally the scheme of the 1986 Act makes a new start, and falls to be construed in its own right as a fresh, separate piece of legislation. Counsel wisely did not attempt to elucidate the meaning of “debt” by any kind of carry-over from the 1914 Act. The right to petition under the 1914 Act depended upon establishing one or more acts of bankruptcy by the debtor, one of which was failure to pay a judgment debt, execution not having been stayed, after service of a bankruptcy notice: see section 1(1)(g). Judgment debt in the 1914 Act plainly meant an English judgment or (later) a registered foreign judgment, since an unregistered and unrecognised foreign judgment could not have been the subject of execution in England: see Williams and Muir Hunter on Bankruptcy (19th ed) at p 30. All that has been swept away by the 1986 Act, which requires only that a qualifying debt (whether a judgment debt or not) is one which the debtor appears to be unable to pay, or to have no reasonable prospect of being able to pay: see section 267(2)(c) and section 268, where inability to pay may only be established upon the failure of the debtor to respond to a statutory demand, or execution of a judgment debt being returned unsatisfied. Plainly the unsatisfied execution basis can again only refer to an English judgment (or registered foreign judgment) but there is no requirement that the statutory demand be based upon a judgment debt at all. Any debt will do. In this respect the new bankruptcy provisions in the 1986 Act may be said to have taken their lead more from the pre-existing provisions relating to petitions for the winding up of a company, than from the 1914 Act: see section 168(5) and 169(1) and (2) of the Companies Act 1929. But even a fresh piece of legislation needs to be construed in the light of the common law as it stood at the time of the enactment. This is because, when using without special definition a legal term or concept like “debt”, the makers of the statute must be taken to have had in mind the then common law understanding as to what it meant: see Bennion, Bailey and Norbury on Statutory Interpretation (9th ed) at para 22.5. Of course, a properly purposive and contextual interpretation of the legislation may lead to a conclusion that some other meaning of the legal term was intended, but the general common law meaning is at least a good place to start. Speaking in general common law terms, a debt is a legal obligation owed by one person to pay a sum of money to another person: see eg Jowitt’s Dictionary of English Law (6th ed) under “Debt”. It may arise under a contract, a deed, a covenant, a statute or anything else giving rise to the necessary legal obligation. Plainly it may arise under a judgment or other court order. It is a fair assumption from section 267 read in context that “debt” is being used in that wide general sense, not least because the section then goes on to prescribe much more precisely what particular characteristics the debt must have if it is to be made the subject of a petition. It must exceed the bankruptcy level: section 267(2)(a) and (4). It must be for a liquidated sum, payable immediately or at a certain future time, payable to the petitioner and be unsecured: section 267(2)(b). It is not to be regarded as liquidated by reason only that its amount is specified in a criminal bankruptcy order: section 267(3). It has always been the understanding of the common law (before, at the time of and after the passing of the 1986 Act) that an unrecognised foreign judgment for a sum of money did give rise to an immediate legal obligation to pay that sum to the judgment creditor, enforceable by an action on the foreign judgment in an English court. It was therefore a “debt” within the general understanding of the common law. It is no surprise to read it so described (ie as a debt) in the Greer report. We can envisage no reason why section 267 should have used “debt” in any narrower sense than we have described, or why its purpose should not have extended to a legal obligation to pay under an unrecognised foreign judgment. The evident purpose of the scheme encompassed by sections 267 and 268 of the 1986 Act is to provide a reasonably precisely specified basis upon which the court might conclude that the relevant debtor was unable to pay his or her debts, so as to make it appropriate that the statutory scheme of pari passu distribution of the debtor’s assets among their creditors should be put in place. There is no reason why inability to discharge the legal payment obligation arising from an unrecognised foreign judgment should not qualify for that purpose. A sustained attempt was made by counsel for Mr Drelle to submit that, since a bankruptcy petition is a recognised means of “enforcement” of a judgment debt (although not execution of it), to read “debt” in section 267 as including the obligation arising from an unrecognised foreign judgment would run counter to the statement in Dicey Rule 46(1) that an unrecognised foreign judgment “may be enforced by a claim or counterclaim for the amount due under it… but not otherwise.” There are at least two difficulties with that submission. 85. The first is that this is evidently not the opinion of the learned editors of Dicey. At para 14-012 is it stated that: “A judgment creditor seeking to enforce a foreign judgment in England at common law cannot do so by direct execution of the judgment. It must bring an action on the foreign judgment.” But at footnote 33 the editors add that: “The judgment creditor may serve a statutory demand in terms of the foreign judgment, just as with any other unpaid debt”. To the same effect is Professor Briggs, in his article ‘Recognition of foreign judgments: a matter of obligation’ (LQR 2013, 129(Jan), 87-100) at footnote 12. The second is that although bankruptcy (or winding up) proceedings are often loosely categorised as a means of collective enforcement of debts (see eg Wight v Eckhardt Marine GmbH [2003] UKPC 37; [2004] 1 AC 147 per Lord Hoffmann at para 26 citing Brightman LJ in In re Lines Bros Ltd [1983] Ch 1, 20), they are in no relevant sense a means of enforcement of a judgment. Bankruptcy proceedings initiate a scheme for the division of the debtor’s assets pari passu among his unsecured creditors, under the protection of a moratorium upon the enforcement or execution of any judgment: they are in that sense the very antithesis of the enforcement of an individual creditor’s judgment: see Sian Participation Corpn v Halimeda International Ltd [2024] UKPC 16; [2025] AC 1321 at paras 32 and 54 and In re International Tin Council [1987] Ch 419 at 455F-G per Millett J. 87. Reliance was also placed by counsel for Mr Drelle upon the effect of the 1933 Act. As explained in the Greer report its intention (as between participating jurisdictions) was to provide a simpler means of enforcing a foreign judgment than by recognition proceedings, but with substantially the same effect, by making a registered judgment as good as an English judgment for the purposes (inter alia) of execution and the running of interest: see section 2(2). Section 6 then provides that: “No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part of this Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in the United Kingdom.” It was decided in Judgment Debtor (and not challenged in this appeal) that this prohibition extended to bankruptcy proceedings. Thus, if a foreign judgment was registrable, bankruptcy proceedings could not be founded upon it without first having the judgment registered. Why, counsel asked rhetorically, should an unregistrable and unrecognised judgment be any better placed? It was pointed out that the Greer report (upon the advice of which the 1933 Act was passed) assumed that its provisions would not enact anything more than a convenient procedural, rather than substantive, change to the position at common law, “with no radical alterations of the present position”. 88. In our view the primary answer to this submission is that whatever changes the 1933 Act may have made to the enforceability of registrable but as yet unregistered foreign judgments, it made no difference to the use that could be made of unregistrable and unrecognised foreign judgments at common law, or under the existing bankruptcy legislation. The secondary answer is that, as already noted, an unrecognised foreign judgment could not in 1933 be used as the basis of an alleged act of bankruptcy under the Bankruptcy Act 1914 (in force at the time of the Greer report). So the 1933 Act, and in particular section 6, did indeed replicate the then effect of recognition of a foreign judgment, for bankruptcy purposes. It was the new scheme for bankruptcy petitions under the 1986 Act which, as described above, for the first time enabled reliance on the debt created by an unrecognised (but unregistrable) foreign judgment for the purpose of creating a relevant debt for bankruptcy purposes. Finally on this point, the explanation in the Greer report of the nature of the debt obligation under an unrecognised foreign judgment was just as we have earlier described it. Nor is the position of a creditor with a registrable foreign judgment any worse off in the aggregate than one with an unregistrable judgment. The registration process carries with it substantial procedural advantages over recognition proceedings. Viewed that way, the simple process of registration is not much of a disadvantage, as a required preliminary to presenting a bankruptcy petition. Our conclusion on issue 2 therefore is that, contrary to the judgment of the Court of Appeal, the obligation to pay a sum of money under an unregistrable, unrecognised foreign judgment is a debt within the meaning of section 267 of the 1986 Act. The result is that, subject only to Mr Drelle’s additional grounds of appeal to the Court of Appeal, which have yet to be adjudicated upon, this appeal should be allowed. Issue (3): Article 13 of the Model Law—does article 13 of the Model Law mean that a “foreign creditor” under an unrecognised foreign judgment for a debt has the same rights as a creditor with an equivalent claim under English law? 90. ST advanced (for the first time in this court) a lengthy but essentially fallback submission that, even if its primary case as to the meaning of “debt” in section 267 of the 1986 Act did not prevail, viewing the matter as at 1986, it should nonetheless succeed because of a change introduced into English insolvency law by reason of article 13 of the Model Law. Since 2006 this has had the force of law in Great Britain by virtue of Reg 2(1) of the Cross-Border Insolvency Regulations 2006 (“CBIR”), pursuant to the power conferred by section 14 of the Insolvency Act 2000. Article 13 (in the form which appears in Schedule 1 to the CBIR) provides as follows, under the heading: “Access of foreign creditors to a proceeding under British insolvency law”: Subject to paragraph 2 of this article, foreign creditors have the same rights regarding the commencement of, and participation in, a proceeding under British insolvency law as creditors in Great Britain. Paragraph 1 of this article does not affect the ranking of claims in a proceeding under British insolvency law, except that the claim of a foreign creditor shall not be given a lower priority than that of general unsecured claims solely because the holder of such a claim is a foreign creditor. A claim may not be challenged solely on the grounds that it is a claim by a foreign tax or social security authority but such a claim may be challenged— on any other ground that a claim might be rejected in a proceeding under British insolvency law.” The gist of the argument advanced by Dr Riz Mokal, junior counsel for ST, may be summarised as follows. “Foreign” where used in article 13 and elsewhere in the Model Law did not mean, or at least was not confined to, a reference to the geographical location of the creditor, but rather it meant, or included a reference to, the law under which the creditor was owed its debt. Thus, in giving effect to the anti-discrimination provision in paragraph 1 (about the commencement of bankruptcy proceedings) a foreign creditor was (or included) a creditor, wherever located, claiming under a foreign judgment. By parity of reasoning the comparator was another creditor, wherever located, who was claiming under an English judgment. Since we have already concluded, without reference to the Model Law, that someone seeking to base a bankruptcy petition on a debt under a foreign unrecognised judgment is no worse off in terms of locus standi than a creditor with an English judgment debt, this fallback argument is not a necessary part of ST’s case. Therefore, without meaning any disrespect to Dr Mokal’s detailed submissions, we need only deal with it very briefly. In summary, we have been entirely unpersuaded by it. It appears clear to us that, wherever “foreign” is used in the Model Law, or at least where it is used in article 13, it is used as a descriptor of geographical location. The foreign creditor intended to be protected from discrimination on account of their foreign-ness is one who (or which) is located abroad, geographically speaking. For this purpose, the precise criterion for geographical location (nationality, ordinary residence or centre of main interests) is irrelevant. So, the comparator for a Russian located creditor seeking to rely upon a debt under a Russian judgment is an English (or strictly British) located creditor relying upon an identical Russian judgment. It has nothing to do with the question whether the Russian origin of the judgment creates any disadvantage for the creditor, as against an English judgment. In any event, as we have concluded, it does not, for the purpose of commencing bankruptcy proceedings. The high point of Dr Mokal’s submission was to suggest that, for the purposes of the Model Law, someone living in Calais was to be treated as foreign not because of their location in Calais, but because their relevant rights were likely to be governed by French Law. In our view they would be foreign because they were separated from Britain by the English Channel. Mr Drelle invited the court to uphold the order made by the Court of Appeal to set aside the Bankruptcy Order on the ground that ICC Judge Burton erred in concluding that the debt was not disputed on bona fideand substantial grounds and Richards J erred in upholding that decision. As the court made clear at the hearing, this is not an appropriate issue for determination by the Supreme Court, all the more so in circumstances where there has been no prior decision made by the Court of Appeal. It is the Court of Appeal which gave permission to appeal on this issue and it is that court which should determine it. This issue will accordingly have to be remitted to the Court of Appeal. For all the reasons set out above, the appeal is allowed against the Court of Appeal’s decision to allow Ground 1 of the appeal before it. The case will be remitted to the Court of Appeal to determine the remaining grounds for which it gave permission to appeal (Grounds 2 to 4).

LORD LLOYD-JONES (with whom Lord Reed, Lord Burrows, Lady Rose and Lady Simler agree): On 18 December 2023 the respondents were all convicted at Leeds Crown Court, before Lambert J and a jury, of offences of causing or allowing a vulnerable adult to suffer serious physical harm, contrary to section 5, Domestic Violence, Crime and Victims Act 2004 as amended by Domestic Violence, Crime and Victims (Amendment) Act 2012 (“DVCVA 2004”). This appeal concerns the effect of section 5(1)(d)(iii) which requires that the unlawful act which causes death or serious physical harm occurred in circumstances of the kind that the defendant foresaw or ought to have foreseen. Factual background The victim of the offences contrary to section 5 DVCVA 2004 was Ambreen Fatima Sheikh (“Ambreen”), a woman of 30 years of age. She was born on 22 January 1985 in the Islamic Republic of Pakistan. On 3 May 2014, while still living in Pakistan, she entered into an arranged marriage with Asgar Sheikh, who lived with his mother and father and his brother and sister at 15 Clara Street, a mid-terrace house in Huddersfield, West Yorkshire. The family structure was as follows. Khalid Majid Sheikh was the father of the three children of the family. Shabnam Shahzadi Sheikh was the mother of the three children of the family. Shagufa Yasmin Sheikh was their daughter. Asgar Hussain Sheikh was their older son. Sakalyne Sheikh was their younger son. On 13 May 2014, Ambreen applied to the British High Commission in Islamabad for entry clearance to the United Kingdom as the spouse of Asgar Sheikh. This was granted on 10 November 2014. Ambreen arrived in the United Kingdom on 16 November 2014 and thenceforth, until her admission to hospital, lived with the respondents and Sakalyne Sheikh at 15 Clara Street. Shabnam Sheikh suffered from diabetes, for which she had been prescribed anti-diabetic medicines, which, from 17 October 2012, included glimepiride. By 23 June 2014 Shabnam Sheikh was being prescribed 6mg glimepiride per day in the form of 2mg and 4mg tablets. Apart from Shabnam Sheikh, none of the respondents had been diagnosed at this time with diabetes, nor had Sakalyne Sheikh. Ambreen was not diabetic. At 01:12 on 1 August 2015 Shagufa Sheikh made an emergency call to the ambulance service in which she reported that Ambreen could not breathe properly and an emergency ambulance was needed. In response to the call, an ambulance arrived at 15 Clara Street at 01:31. The ambulance personnel were admitted by Asgar Sheikh, who showed them into a bedroom where Ambreen was lying in bed. Shagufa Sheikh and Shabnam Sheikh were in the bedroom; Sakalyne Sheikh was in an adjoining room; Khalid Sheikh was not in the property. Ambreen was unconscious and unresponsive with a Glasgow Coma Scale Score of 4. Her breathing was very noisy. A decision was made to transport her to hospital. 8. On admission to hospital at 02:05, Ambreen was found to be in a very serious condition. She had a high temperature and was deeply unconscious. A CT head scan revealed generalised swelling of the brain. Her Glasgow Coma Scale Score was assessed as being 7 and her breathing was abnormal. During 1 August, a decision was made to conduct a lumbar puncture with a view to confirming or excluding the presence of infection in the cerebro-spinal [per Oxford ED / Black’s Medical Dictionary] fluid, meningitis having been on the list of differential diagnoses. For these purposes the nursing staff rolled her over so that her back was exposed in order that a doctor could conduct the procedure. Once her back was exposed it revealed the presence of a very severe lesion over the sacrum which measured 10 inches by 4 inches (“the sacral lesion”). The skin was black with raw exposed subcutaneous tissue at the edges. The hospital authorities reported the condition of their patient to the police. Because it was considered that Ambreen might not survive, the police asked a Home Office pathologist and a plastic surgeon to examine her body. Other lesions and marks were noted. These included a lesion to the right ear, scattered lesions over her back and what appeared to be pressure marks to the toes and one of her heels. Radiographs revealed the presence of a lung infection, consistent with her high temperature on admission. The infection was caused by inhaling gastric content while Ambreen was unconscious and thereby unable to protect her airway. The results of the lumbar puncture excluded infection as an explanation for the brain injury. Ambreen had not sought any medical attention for the sacral lesion, nor had any been obtained for her, whether from a general practitioner or from a hospital. The lesion must have been very painful, and the other members of the household must all have been aware of Ambreen’s condition. The police searched the property inside and outside 15 Clara Street. They recovered, from a wheelie bin at the rear of the house, a pair of trousers which had been worn by Ambreen. The trousers smelled strongly of urine and contained black particulate debris from the sacral lesion. They were stained with a “bleached” appearance over an area which corresponded with the site of the sacral lesion. The police recovered a pillowcase from the bin which was stained with vomit, urine and dilute blood, which had emanated from Ambreen. In a ground floor room, the police found a false fur bed throw which was lying underneath unconnected items. The throw was stained with urine and dilute blood which had emanated from Ambreen. A pair of trousers which she had been wearing when the ambulance personnel entered the bedroom were seized by the police and scientifically analysed. They were clean and devoid of any urine, vomit or blood staining. The trial The trial of the respondents took place before Lambert J and a jury at the Crown Court at Leeds, between 4 October 2023 and 18 December 2023. The respondents were charged, with Sakalyne Sheikh, on an indictment which contained eight counts. Counts 1 to 5 charged each of them, separately, with an offence of “causing or allowing … a vulnerable adult to … suffer serious physical harm” contrary to section 5 (1) of the DVCVA 2004. Count 6 charged all five defendants with an offence of conspiracy to pervert the course of public justice. Count 7 charged Shagufa Sheikh and Shabnam Sheikh with an offence of “doing acts tending and intended to pervert the course of public justice”. Count 8 charged Asgar Sheikh with a similar offence to that charged in count 7. The charges in counts 6 to 8 arose out of the same facts. The prosecution case in relation to the offences charged in counts 1 to 5 of the indictment was that Ambreen sustained serious physical harm in the form of a severe injury to the brain which rendered her deeply unconscious. The most likely cause of the brain injury was a hypoglycaemic coma resulting from the ingestion of a small amount of glimepiride. A very small amount of glimepiride can cause a non-diabetic person to enter a coma, a matter of which Shabnam Sheikh had been warned by a medical practitioner on a number of occasions in the presence of Shagufa Sheikh. Ambreen has never recovered consciousness and remains alive, in a vegetative state, with a reduced life expectancy and requires constant support and care. At the conclusion of the prosecution’s case, the respondents made submissions directed to the issue of whether no reasonable jury, properly directed, could convict the respondents in respect of counts 1 to 5. Khalid Sheikh (with Sakalyne Sheikh) made a similar submission in respect of count 6 of the indictment. Lambert J rejected these submissions and gave reasons contained in a written ruling. The respondents (and Sakalyne Sheikh) did not give evidence. One medical expert witness, Mr Burge, a plastic surgeon, was called on behalf of Shagufa Sheikh. On 18 December 2023, the respondents were convicted of the offences with which they were charged. The fifth defendant, Sakalyne Sheikh, was acquitted of the DVCVA 2004 offence charged in count 4 but was convicted of the offence of conspiracy to pervert the course of public justice, the subject of count 6. All five defendants were convicted on count 6. Shagufa Sheikh and Shabnam Sheikh were convicted on count 7 of offences of “doing acts tending and intended to pervert the course of public justice”. Asgar Sheikh was convicted on count 8 of an offence of “doing acts tending and intended to pervert the course of public justice”. The respondents entered Notices of Appeal in respect of their convictions on counts 1, 2, 3 and 5. Their appeals were focused upon the correct interpretation of section 5(1)(d)(iii) DVCVA 2004 and its application to the facts of the case. They contended that Lambert J had been in error in refusing their applications that the DVCVA 2004 charges should be withdrawn from the jury. The respondents contended that the “unlawful act” relied upon by the prosecution as having caused serious physical harm to the victim was, if proved, not one which “occurred in circumstances of the kind” that the respondents had foreseen or ought to have foreseen. On 23 January 2025 the Court of Appeal delivered judgment ([2025] EWCA Crim 38; [2025] 1 WLR 2924) and concluded that the respondents’ submissions in respect of the DVCVA 2004 charges should have succeeded. The court also concluded that even if Lambert J did not err in rejecting the submission of no case to answer, the summing-up was tainted by too broad an interpretation that Lambert J had given to section 5(1)(d)(iii) DVCVA 2004. The court allowed the appeals and quashed the convictions. On 26 March 2025 the Court of Appeal certified that the following point of law of general public importance was involved in the decision to allow the appeals and refused leave to appeal to the Supreme Court: “Whether section 5(1)(d)(iii) of the Domestic Violence Crime and Victims Act 2004, which provides, as one of the conditions of criminal liability, that ‘the act occurred in circumstances of the kind that D foresaw or ought to have foreseen’, should be construed broadly so as to include any deliberate and harmful act occurring in the context of previous domestic violence that is known to have been perpetrated against the victim within the same household.” The legislation The Domestic Violence, Crime and Victims Act 2004 created in section 5 a novel offence of “causing or allowing” the death of a child or a vulnerable adult and, in section 6, modified rules of procedure. In 2012 the offence was extended by the Domestic Violence Crime and Victims (Amendment) Act 2012 to include “causing or allowing a child or vulnerable adult … to suffer serious physical harm.” 21. “(1) A person (‘D’) is guilty of an offence if– a child or vulnerable adult (‘V’) dies or suffers serious physical harm as a result of the unlawful act of a person who– D was such a person at the time of that act, at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and either D was the person whose act caused the death or serious physical harm or– D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and the act occurred in circumstances of the kind that D foresaw or ought to have foreseen. The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies. If D was not the mother or father of V– D may not be charged with an offence under this section if he was under the age of 16 at the time of the act that caused the death or serious physical harm; for the purposes of subsection (1)(d)(ii) D could not have been expected to take any such step as is referred to there before attaining that age. a person is to be regarded as a ‘member’ of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it; where V lived in different households at different times, ‘the same household as V’ refers to the household in which V was living at the time of the act that caused the death or serious physical harm. (5) For the purposes of this section an ‘unlawful’ act is one that– (6) ‘serious’ harm means harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861; ‘vulnerable adult’ means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise. A person guilty of an offence under this section of causing or allowing a person's death is liable— on conviction on indictment in England and Wales, to imprisonment for life or to a fine, or to both; on conviction on indictment in Northern Ireland, to imprisonment for a term not exceeding 14 years or to a fine, or to both. A person guilty of an offence under this section of causing or allowing a person to suffer serious physical harm is liable— on conviction on indictment in England and Wales, to imprisonment for a term not exceeding 14 years or to a fine, or to both; on conviction on indictment in Northern Ireland, to imprisonment for a term not exceeding 10 years or to a fine, or to both.” 22. The legislation was enacted to remedy a specific mischief arising from the position at common law whereby where two or more persons are charged with a criminal offence and the prosecution is unable to prove which one was responsible for the commission of the offence, in circumstances where they cannot be proved to have acted in concert, both must be acquitted (R v Abbott and Abbott [1955] 2 QB 497, per Lord Goddard CJ at p 503; R v Lane and Lane (1986) 82 Cr App R 5 per Croom-Johnson LJ at p 18; R v Bellman [1989] AC 836, p 849: R v Aston and Mason (1992) 94 Cr App R 180; R v Strudwick (1994) 99 Cr App R 326). In April 2003 the Law Commission published its Consultative Report, Children: Their Non-Accidental Death or Serious Injury (Criminal Trials) (Law Com No 279) in which it sought to address “a problem which has been recognised for many years by judges, academics and practitioners, and which has been highlighted by the press” (para 1.1). It provided the following example: “A child is cared for by two people (both parents, or a parent and another person). The child dies and medical evidence suggests that the death occurred as a result of ill-treatment. It is not clear which of the two carers is directly responsible for the ill-treatment which caused death. It is clear that at least one of the carers is guilty of a very serious criminal offence but it is possible that the ill-treatment occurred while one carer was asleep, or out of the room.” It continued (at para 1.2): “As the law stands, as a result of the Court of Appeal’s ruling in Lane and Lane it is likely that such a trial would not proceed beyond a defence submission of ‘no case to answer’. As a result, neither parent can be convicted, and one or other parent, or both, might well have literally ‘got away with murder’. It should be remembered that even though one parent may not have struck the fatal blow or blows, he or she may be culpable either through having participated in the killing actively or by failing to protect the child. In many cases of this type it is difficult, or impossible, to prove this beyond reasonable doubt, and therefore neither parent can be convicted.” 23. The Law Commission noted (at para 2.11) that there was ample evidence that the present rules of evidence and procedure which applied in criminal trials represented “a significant obstacle to the effective investigation into and identification and punishment of those who are guilty of the most serious offences against the most vulnerable members of society”. It concluded (at para 2.12): “This is not a situation about which there can be any complacency. In subsequent Parts of this report we consider the impact of international obligations upon the State both to ensure fair trials and to protect the fundamental human rights of, amongst others, children. The present unhappy state of affairs calls into question whether we have currently achieved a correct balance between these different, often competing, rights. It is our view that we should carefully examine our present laws and procedures to see whether their present configuration may be changed to achieve a better balance between the right of a defendant to a fair trial and the duty upon the State to protect the fundamental rights of children who are victims, by having an effective system for identifying and punishing those who have attacked and, often, killed them.” On 15 September 2003 the Law Commission published its final report Children: Their Non-Accidental Injury or Death (Criminal Trials) (Law Comm No 282) which recommended the creation of a new offence and provided a draft Bill. That draft Bill was substantially modified during its course through Parliament. The result was section 5 DVCVA 2004 in its original form. It created an offence which could be committed in either of two alternative ways: either causing or allowing a child or vulnerable adult to die or suffer serious physical harm. The prosecution does not have to prove which alternative applies (section 5(2)). 25. Section 5 displays a number of modifications of conventional common law principles, helpfully identified by Mr Robert Smith KC on behalf of the Director of Public Prosecutions (“the appellant”). An unlawful act is defined by section 5(5) as one that constitutes an offence. By section 5(6) an “act” includes both a course of conduct and an omission. As a result, the definition of an “act” extends to gross negligence manslaughter (R v Fartun Jamal [2026] EWCA Crim 135) and to certain offences of neglect pursuant to section 1, Children and Young Persons Act 1933. Both awareness of the risk (section 5(1)(d)(i)) and foresight of the circumstances in which the act occurred (section 5(1)(d)(iii)) are substantially widened by the terms “or ought to have been aware” and “or ought to have foreseen” respectively. They introduce an objective assessment by the jury of the relevant state of mind of a defendant. The prosecution is not required to prove whether a defendant caused the death or serious physical harm in question or whether he or she, with the necessary awareness and foresight, failed to take such steps as he or she could reasonably have been expected to take to protect the victim from the significant risk of serious physical harm (R v McCarney [2015] NICA 27 at paras 29–36). Respective cases in the Crown Court 26. The prosecution case in the Crown Court was that the unlawful act which resulted in serious physical harm to Ambreen and which therefore formed the basis of the offence charged was the administration of glimepiride. The family members’ awareness of a significant risk of serious physical harm was alleged to arise from the sacral lesion on Ambreen’s back. The sacral lesion was caused by the unlawful and deliberate application of some form of caustic substance to the body of Ambreen which had taken place a number of days before she sustained the brain injury which was also caused unlawfully (the latter therefore being “the unlawful act”). The prosecution could not prove who had been responsible for inflicting either of these injuries but asserted that they were caused by one or more of the defendants. Consequently, the prosecution presented its case against the respondents and Sakalyne Sheikh on the basis that each defendant had “caused or allowed” the serious physical harm arising from the unlawful act. The prosecution was not required to prove which of these alternatives applied (section 5(2) DVCVA 2004). The elements of the prosecution’s case against each of the respondents (and Sakalyne Sheikh) were as follows: The unlawful act was caused by one or more of the defendants and amounted to serious physical harm. While the precise mechanism by which the injury to the brain was caused could not be proved with certainty, it was likely to have been due to hypoglycaemia, resulting from ingestion of the anti-diabetic agent glimepiride. The onus was on the prosecution to prove that if the cause of the brain injury was the ingestion of glimepiride it had not been ingested accidentally or by Ambreen’s own deliberate and voluntary act. For such purposes the prosecution relied upon the evidence that neither Ambreen nor any of the defendants had sought medical help for the sacral lesion, together with the evidence which had been adduced in support of counts 6, 7 and 8. The defendants were all members of the “same household” as Ambreen, and each of them had “frequent contact” with her (section 5(1)(a)(i) and (ii) DVCVA 2004). At the time of the unlawful act there was a significant risk (“the risk”) of serious physical harm being caused to Ambreen by the unlawful act of such a person (section 5(1)(c) DVCVA 2004). The defendants were or ought to have been aware of the risk. The prosecution contended, as a matter of inference from the circumstances, that each defendant was aware that the sacral lesion had been inflicted unlawfully by one or more of them. The prosecution acknowledged that it was “critical” to the prosecution’s case to prove that the sacral lesion had been inflicted prior to the unlawful act, as evidence of actual or constructive awareness of the risk for the purposes of section 5(1)(d)(i) DVCVA. The defendants had failed to take any steps to protect Ambreen from the risk in circumstances in which they could reasonably have been expected to do so (section 5(1)(d)(ii) DVCVA 2004). The unlawful act occurred “in circumstances of the kind” that the defendants foresaw or ought to have foreseen (section 5(1)(d)(iii) DVCVA 2004). The prosecution contended that the subsection should be construed broadly, that the jury was required to consider all the circumstances and not just whether a defendant had actual or constructive foresight of the act or type of act which resulted in the serious physical harm. 27. The respondents presented their respective cases in common with each other and contended that, for the following reasons, the prosecution had failed to prove their case on counts 1 to 5 of the indictment: The prosecution had not proved that Ambreen was a “vulnerable adult” within the meaning of section 5(6) DVCVA 2004. If it was proved that the brain injury which Ambreen sustained was not due to natural causes and, as asserted by the prosecution, that it was caused by the ingestion of glimepiride, the prosecution had failed to prove that she did not ingest the drug accidentally or deliberately and voluntarily. Since one 2mg tablet of glimepiride would be sufficient to induce a hypoglycaemic coma in a non-diabetic, the amount ingested may not have been any greater and there was a realistic possibility that the drug had been consumed accidentally. The sacral lesion was not a caustic burn but was a pressure sore which was caused by Ambreen lying inert because of the brain injury which had rendered her unconscious. Consequently, the prosecution had failed to prove that the sacral lesion was caused before Ambreen suffered the brain injury and there was therefore no evidence of any antecedent event which could have created an awareness of the risk for the purposes of section 5(1)(d)(i) DVCVA 2004. Section 5(1)(d)(i) DVCVA 2004 should be construed strictly so as to mean that a defendant must be proved to have had actual or constructive awareness of a risk of serious physical harm being caused by an unlawful act which falls within the same category as the antecedent events which led to the awareness of the risk. Consequently, on a correct construction of section 5(1)(d)(i) DVCVA 2004, if the unlawful act was committed by any other means, a defendant could not be proved to have had the necessary awareness of the risk. Since section 5(1)(d)(iii) DVCVA 2004 required proof that the unlawful act occurred in “circumstances of the kind” that the defendant foresaw or ought to have foreseen, and the administration of glimepiride was a wholly different set of circumstances to those which involved the application of a caustic substance to Ambreen’s body, then on a correct construction of section 5(1)(d)(iii) DVCVA 2004, the act of administering one or more tablets of glimepiride did not occur in “circumstances of the kind” that any defendant foresaw or ought to have foreseen. The ruling on submission of no case 28. At the close of the prosecution case Lambert J delivered a ruling rejecting the submissions of no case to answer made on behalf of the respondents and Sakalyne Sheikh. She held: There was sufficient evidence on which a reasonable jury could conclude that Ambreen was a vulnerable adult. There was sufficient evidence on which a reasonable jury could conclude that the serious physical harm suffered by Ambreen was caused by an unlawful act. In particular, a reasonable jury could properly exclude accidental or deliberate self-administration of the anti-diabetic medicine. There was sufficient evidence on which a reasonable jury could conclude that the sacral injury was due to the application of a caustic alkaline chemical and that it was inflicted before the administration of glimepiride. Lambert J rejected the submission that the use of the definite article in section 5(1)(d)(i) meant that the risk of which the defendants ought to have been aware was the risk of the unlawful act, that is either the specific unlawful act itself or an unlawful act falling into the same offence category as that which was foreseen or foreseeable. Lambert J observed that if the intention had been to confine liability to cases where the defendant had or ought to have foreseen the precise unlawful act which was in due course done, the offence would be a very narrow one indeed. The substantive conditions imposed by section 5(1)(d)(i) and (ii) – awareness of the risk and failure to take reasonable steps to protect the victim from the risk – were relatively straightforward and there was evidence on which a reasonable jury properly directed could conclude that they were satisfied in this case. So far as section 5(1)(d)(iii) was concerned, Lambert J emphasised three points. First, it was the circumstances rather than the unlawful act which must be of the kind that the defendant foresaw or ought to have foreseen. Secondly, the provision required only that the act occurred in circumstances “of the kind” that the defendant foresaw or ought to have foreseen. The circumstances did not have to be identical. Thirdly, this broad interpretation of section 5(1)(d)(iii) reflected the fact that offences of this sort tended to take place in private. Applying this construction, she was satisfied that there was sufficient evidence upon which a reasonable jury could conclude that the unlawful act occurred in foreseen or foreseeable circumstances. The summing up and verdicts Lambert J summed up to the jury in terms which closely reflected the language of the statute. The summing up is considered in greater detail below. The respondents were convicted of the offences contrary to section 5 with which they were charged. Sakalyne Sheikh was acquitted of the offence contrary to section 5 with which he was charged. The judgment of the Court of Appeal On appeal, the Court of Appeal quashed the respondents’ convictions for offences contrary to section 5. The Court of Appeal concluded that the statutory construction adopted by Lambert J in respect of section 5(1)(d)(i) DVCVA 2004 was correct and that the emphasis was upon the reasonable foreseeability of the risk, thereby rejecting the respondents’ submissions on this point (at paras 28 to 30). The Court of Appeal rejected the prosecution submission that “circumstances of the kind” will necessarily encapsulate all and any serious harm caused or inflicted by any unlawful means if it occurs within the domestic setting and concluded that if the prosecution was correct in this respect section 5(1)(d)(iii) would become otiose (at para 31). The Court of Appeal considered that the submission of “no case to answer” regarding counts 1 to 5 (charging offences contrary to section 5) should have succeeded. The administration of a minimal quantity of glimepiride, even if established to be with unlawful intent, was so “utterly different” from the infliction of the sacral injury that the court doubted that a reasonable jury properly directed could conclude that it “occurred in circumstances of the kind that D foresaw or ought to have foreseen” (at para 41). The Court of Appeal observed that, even if it had concluded that Lambert J did not err in rejecting the submission of “no case to answer”, the summing up was tainted by too broad an interpretation given by Lambert J to section 5(1)(d)(iii) DVCVA 2004 and it did not sufficiently assist the jury (paras 39 and 42). 36. The Court of Appeal also commented adversely upon the following aspects of the prosecution’s case and Lambert J’s ruling: The case against the appellants was riddled with evidential difficulties (para 36). The direction to the jury needed to address each possible causative act of commission where one or other of a number of specified unnatural and necessarily unlawful acts occurred to cause death or serious physical injury (para 37). Section 24 of the Offences against the Person Act 1861 (maliciously administering poison etc with intent to injure) was engaged and the judge should have specifically addressed the question of intent (paras 38 and 42). There was nothing in the judge’s ruling to indicate that she had regard to the expert evidence given at trial that glimepiride appears only “very, very rarely” as a weapon given deliberately to cause an overdose and hypoglycaemia (para 39). 37. Section 5 DVCVA 2004 as amended creates an offence of “causing or allowing a child or vulnerable adult to die or suffer serious physical harm”. The offence may be committed in alternative ways. It is committed if a defendant (“D”) causes a child or vulnerable adult (“V”) to die or suffer serious physical harm (section 5(1)(d)) or if D allows V to die or suffer serious physical harm (section 5(1)(d)(i)–(iii)). The section is intended to provide for situations in which the prosecution cannot prove which of two or more persons in the same household as V caused the death or serious physical harm. As a result, and as already stated, the prosecution is not required to prove whether the first or the second alternative applies (section 5(2)). To establish the second alternative the prosecution must prove: At the time of the act which caused death or serious physical harm to V, D was or ought to have been aware of a significant risk of serious physical harm being caused to V by the unlawful act of a member of the same household as V (section 5(1)(d)(i)); D failed to take such steps as D could reasonably have been expected to take to protect V from that risk (section 5(1)(d)(ii)); and The act occurred in circumstances of the kind that D foresaw or ought to have foreseen (section 5(1)(d)(iii)). For the appellant, Mr Robert Smith makes a submission which may conveniently be considered in two parts. First, he submits that a broad and purposive construction of section 5(1)(d)(iii) should be adopted under which the words “circumstances of the kind” should be construed as including all the circumstances which existed in the context of which the act was committed and which D foresaw or ought to have foreseen. He submits that it is not the act which must be proved to have been foreseen or which ought to have been foreseen. The requirement of actual or constructive foresight is directed to circumstances of the kind in which the act occurred. 40. Secondly, the appellant further submits that a broad and purposive construction of the words in section 5(1)(d)(iii) leads to the conclusion that, absent wholly exceptional circumstances, once D is proved to have had actual or constructive awareness of a significant risk of serious physical harm being caused to V by a member of the same household as V (section 5(1)(d)(i)), any “act” (ie one which is unlawful and causes serious physical harm) which is perpetrated in the context of domestic violence against the same victim, will be one which has occurred in circumstances which at least “ought to have been foreseen” by D. The appellant submits: “While not every violent and unlawful act will lead to actual or constructive awareness that V is at significant risk of serious physical harm, where a defendant becomes aware of such a risk (section 5(1)(d)(i)) so as to give rise to the duty to take reasonable steps to protect the victim (section 5(1)(d)(ii)) it is difficult to contemplate circumstances in which the possibility of an unlawful act causing serious physical harm would be outside the scope of a defendant’s constructive foresight when it occurs in a domestic setting, other than in wholly exceptional circumstances.” The full implications of this submission are explained later in the appellant’s written case. The appellant submits that section 5(1)(d)(iii) should be construed broadly, so as to include any deliberate and harmful act which occurs in the context of previous violence that is known to have been perpetrated against V by a member of the same household. The appellant submits that an absence of at least constructive foresight of the kind of circumstances in which the act occurred is difficult to envisage. This submission on behalf of the appellant is reflected in the certified point of law before the Supreme Court. 41. The respondents submit that the words “the act occurred in circumstances of the kind that D foresaw or ought to have foreseen” in section 5(1)(d)(iii) should not be construed so broadly as to include any deliberate and harmful act occurring in the context of previous domestic violence that is known to have been perpetrated against the victim within the same household. They submit that such a reading would mean that section 5(1)(d)(iii) serves no purpose because it would confer no practical additional safeguard for the defendant. The appellant’s case, the respondents submit, comes close to asserting a presumption that once the matters to be established under section 5(1)(d)(i) and (ii) have been proved to the jury’s satisfaction, it will follow inexorably that the ingredient under section 5(1)(d)(iii) will have also been established “other than in wholly exceptional circumstances”. They submit that the correct interpretation of section 5(1)(d)(iii) requires the focus to be on all the circumstances in which the harm occurred, which means that it cannot be satisfied solely by reference to the risk of harm that was already present in the household. The actual or constructive awareness of a risk of general violence in a domestic setting should not mean that any unlawful act occurring within that setting automatically satisfies section 5(1)(d)(iii). The respondents point to the appellant’s contention that, at the least, the respondents ought to have foreseen that further serious physical harm might be inflicted on V, regardless of the method used to achieve that result, given their proven awareness of the risk of serious physical harm at the time of the act. The respondents observe that, while this may be correct, it is insufficient to satisfy section 5(1)(d)(iii) because the kind of circumstances in which further serious physical harm was occasioned must also have been foreseeable. 42. There is considerable force in the respondents’ submissions in response to the second part of the appellant’s submission. Section 5(1)(d)(iii) is clearly intended to provide additional protection for D over and above that afforded by section 5(1)(d)(i) and (ii). The appellant’s second submission, if accepted, would render section 5(1)(d)(iii) otiose. This was the point made by the Court of Appeal (at para 31): “… we cannot accept Mr Smith’s submission, and one that Lambert J apparently adopted in paragraphs [39] and [41] of her ruling, that ‘circumstances of the kind’ will necessarily encapsulate all and any serious harm caused or inflicted by any unlawful means if it occurs within the domestic setting. We agree with Mr Green [for the first respondent] and Mr Iqbal [for the second respondent], that if Mr Smith is right on this point, section 5(1)(d) (iii) becomes otiose, for by this stage of their deliberations the jury will already have determined that the unlawful act has occurred to a vulnerable victim by a member of D’s household and so, within a domestic setting.” (I should note in passing that I do not agree that Lambert J adopted this approach in her ruling.) The Court of Appeal went on to approve the following passage in Smith, Hogan and Ormerod’s Criminal Law, 17th ed (2024), para 15.4.4 which makes the point most effectively: “Care must be taken to avoid the circumstances being interpreted too loosely. It is not, it is submitted, enough that the prosecution can say that the circumstances are of a ‘kind’ which involves general violence towards V in the domestic context such that any unlawful act that causes serious injury to V in that setting is capable of being one that D2 ought to have foreseen (even if the act itself was of a wholly unforeseeable kind).” Before a jury can convict a defendant of the offence under section 5 on the alternative basis of “allowing a child or vulnerable adult to die or suffer serious physical harm” the prosecution must prove to the criminal standard the three matters set out in section 5(1)(d). Section 5(1)(d)(i) is concerned with actual or constructive awareness of the risk of serious physical harm. Section 5(1)(d)(ii) is concerned with the reasonable steps expected to be taken to protect against this risk. Section 5(1)(d)(iii) is concerned with the circumstances in which the act that caused the harm and forms the basis of the charge occurred. 44. I consider that the approach to section 5(1)(d)(iii) adopted by Lambert J in her ruling on the submissions of no case to answer was entirely correct. She correctly emphasised the importance of concentrating on the precise language used by Parliament. (1) First, the focus is not on the act but on the circumstances in which the act occurred. As Lambert J pointed out (at para 37 of her ruling), Parliament could have chosen to limit liability by requiring D to have actual or constructive foresight of the act or kind of act which led to death or serious physical harm. Instead, it is the circumstances which must be of the kind that D foresaw or ought to have foreseen. In this regard, the judge observed that she did not accept (at least in the unqualified terms in which it was stated) a statement in Smith, Hogan and Ormerod’s Criminal Law, 16th ed (2021), para 15.4.4, that section 5(1)(d)(iii) “means that D2 who foresees that D1 might use violence by punching V cannot be convicted if D1 kills or seriously injures V by poisoning”. (The Court of Appeal also disapproved of this statement at para 29.) As Lambert J observed, there may be cases where a poisoning takes place in circumstances which are of a different kind from those that were or ought to have been foreseen on the basis of a prior assault, but the focus must always be on the circumstances, not the unlawful act or kind of act. Secondly, the reference to “circumstances of the kind” is significant. The legislation requires only that the act occurred in circumstances of the kind that D foresaw or ought to have foreseen. The circumstances do not have to be identical (see R v Uzma Khan [2009] EWCA Crim 2; [2009] 1 WLR 2036 per Lord Judge CJ at para 39). As Lambert J explained in her ruling (at para 38), in some cases the risk of harm that D is expected to foresee may be limited to certain kinds of circumstances, eg where a member of the household is intoxicated or where a distressed infant cries for a long period of time. In other cases, the risk of harm that D is expected to foresee may be present whenever V is alone with a member or members of the household, in which case section 5(1)(d)(iii) will be satisfied if the unlawful act occurs in that context. (3) Thirdly, it is important not to lose sight of the object and purpose of the legislation and the mischief at which this unusual offence was addressed. As Lambert J explained at para 39 of her ruling, offences of this sort committed against children and vulnerable adults tend to take place in private where the precise circumstances are not known and cannot be inferred. The members of the family may decline to give any explanation as to how the injury occurred or how antecedent injuries apparent from a medical examination occurred or they may all give the same innocent explanation. To require in every case a precise correspondence between the circumstances of the conduct establishing the risk of harm and those of the unlawful act would unduly limit the protective scope of the offence. There is nothing in the wording of section 5(1)(d)(iii) which requires proof of some link or some degree of correspondence or likeness between the circumstances that create the awareness of risk and the unlawful act to which the risk gave rise. The requirement is simply that D was or ought to have been aware of the risk and that the unlawful act occurred in circumstances of the kind that D foresaw or ought to have foreseen. As a result, a broad interpretation of section 5(1)(d)(iii) is required. 45. It does not follow, however, that no regard should be paid to the nature of the act or the mechanism of infliction of harm. Depending on the facts of each case, the boundary between an act and the circumstances in which it took place may not be precise and may on occasion be difficult to draw. Furthermore, it will sometimes be artificial to attempt to consider the circumstances while excluding the nature of the act or the mechanism of infliction of harm. Indeed, it was common ground among all parties before us that the nature of the act and the mechanism of infliction of harm are matters which may properly be taken into account as part of the circumstances referred to in section 5(1)(d)(iii). It must, however, be emphasised that the focus of section 5(1)(d)(iii) is not on the foreseeability of the act but on the foreseeability of the circumstances in which it occurred. In particular, a difference in the mechanism of infliction of harm will not necessarily be determinative of whether section 5(1)(d)(iii) is satisfied. In the present case, the fact that the antecedent act was “utterly different” from the unlawful act which caused the injury was only one of the circumstances which the jury was entitled to take into account in deciding whether actual or constructive foresight was proved for the purposes of section 5(1)(d)(iii). On this reading section 5(1)(d)(iii) is not otiose. On the contrary it will often play an important role and afford valuable protection to D. The risk of serious physical harm of which D was or ought to have been aware (section 5(1)(c); 5(1)(d)(i)) may be limited to certain kinds of circumstances, for example where the perpetrator is intoxicated or an infant victim is distressed for a prolonged period of time. Section 5(1)(d)(iii) will protect D where the act occurred in circumstances of the kind which were not foreseen or foreseeable by D. 47. The Court of Appeal began its consideration of section 5(1)(d)(iii), as stated above, by disapproving (at para 29) the statement in Smith, Hogan and Ormerod’s Criminal Law, 16th ed, para 15.4.4, that section 5(1)(d)(iii) means that D2 who foresees that D1 might use violence by punching V cannot be convicted if D1 kills or seriously injures V by poisoning. While the Court of Appeal agreed that section 5(1)(d)(iii) does restrict the offence by inserting a safeguard against any unlawful act vicariously incriminating a non-perpetrating D, in its view the assertion in the example provided went too far in adopting a generic characterisation of unlawful acts as illustrative of “circumstances of a kind”. Similarly, the Court of Appeal cited with approval (at para 34) the following statement from the 17th edition of Smith, Hogan and Ormerod’s Criminal Law at para 15.4.4: “But what of cases in which D2 foresaw D1 might punch, but D1 poisons? What of the situation where D1 usually kicks V but, on this occasion, caused GBH by dangerous driving at V. It is submitted that the focus must remain on the circumstances in which the death or GBH arose and not on the precise nature of the injury. It may be, for example, that the ‘circumstances’ that are relevant are that D1 usually inflicts injury when D1 is drunk, or when V refuses to do as they are told.” (Emphasis added by the Court of Appeal.) The Court of Appeal went further (at para 35 of its judgment): “However, in this latter regard, we cavil at the example given in chapter 15.4.7 of the 17th edition suggesting that a non-perpetrating D ‘who is aware that X has previously shaken D’s baby, V, violently when X is drunk, might not be guilty if X caused V’s death or serious injury by, for example, dipping V’s dummy in methadone to stop V’s incessant crying when X was sober and trying to work’. It appears to us that it is liable to be seized upon by defendants and relied upon as an argument that ‘circumstances of the kind’ are to be interpreted dependent only upon the situation which existed at the time of the previous insult, namely X’s sobriety, rather than, for example the extent of his previous maladaptive behaviour towards an infant who would not be soothed. That is, though the act be different in nature, they were committed with the same desired outcome in mind. This is not to interpret ‘the circumstances’ too loosely. It will, of course, be a matter for the jury, or the judge on a submission of no case to answer, to have regard to all the evidence and all the circumstances.” 48. I agree with the Court of Appeal’s analysis up to that point. However, when it came to apply the provision to the facts of the present case, the Court of Appeal (at para 41) departed from its stated approach and fell into error. It said: “We are persuaded that, in the particular circumstances of this case, the submission of no case to answer as regards the counts of causing or allowing the serious physical harm of a vulnerable person should have succeeded; the administration of a minimal quantity of glimepiride, even if established to be with unlawful intent, was so utterly different from the infliction of the sacral injury that had occurred shortly beforehand and which the prosecution relied upon as giving rise to the foreseeable risk of serious physical harm, that we doubt that a reasonable jury properly directed could conclude that it occurred “in circumstances of the kind that D foresaw or ought to have foreseen” . We stress that we do not thereby suggest that a defendant will necessarily escape liability if the act which gives rise to the foreseeable risk is of a ‘different category’ to that which causes the victim’s subsequent death or serious harm. All cases will be fact specific. In this case, for example, if Ambreen had been forced to ingest a caustic agent such as caused her sacral injury, then the misuse of the same or similar caustic agent could be evidence from which a reasonable jury may properly conclude that the act had been committed ‘in circumstances of the kind’ that the defendants foresaw or ought to have foreseen.” As the appellant points out, the example given by the Court of Appeal in the last sentence of para 41 highlights its error in relying upon comparison of the means by which the chemical agent was used to cause both the antecedent injury and the unlawful act, rather than any wider circumstances. As indicated above, there may in situations such as this be no clearly defined boundary between the “act” and the “circumstance of the kind” referred to in section 5(1)(d)(iii). In particular, the manner of infliction of the antecedent injury and that of the injury caused by the “act” are capable of being part of the “circumstances of the kind”. However, the relevant “circumstances of the kind” are not restricted to these matters. The problem with the reasoning of the Court of Appeal at para 41 of its judgment, set out above, is that it considers the means or method of infliction of injury to the exclusion of all other considerations and, in doing so, it takes an unduly narrow view of “circumstances of the kind” in section 5(1)(d)(iii). In its view, the fact that the mechanism of injury was “utterly different” in the two cases was dispositive of the issue. Furthermore, the Court of Appeal erred in substituting its own view for that of the jury on what was essentially a matter for the jury when it was not entitled to do so. The prosecution case at the trial was that the “circumstances” included the following matters. First, there was evidence that by the time the act occurred a general hostility towards Ambreen existed on the part of one or more of the members of the household. Secondly, one or more of them, to the knowledge of all of them, had unlawfully inflicted the sacral injury upon Ambreen by using some form of caustic agent. Thirdly, it also relied on evidence that Ambreen had suffered traumatic damage to her right ear which may have been caused by the same caustic agent. Fourthly, there was evidence that she had been seriously neglected. She was emaciated and dehydrated. She had been left lying in terrible conditions and there had been substantial delay in seeking medical assistance. 51. In her ruling on the submissions of no case to answer, Lambert J correctly analysed the effect of section 5(1)(d)(iii). (See paras 28(6) and 44 above.) She went on (at para 41) to consider the judgment in R v Uzma Khan where Lord Judge CJ had observed (at para 40) that the judge in that case, to underline the importance attached to foresight of the kind of violence which resulted in death, was entitled to explain the distinction between direct personal violence as opposed to violence inflicted with a potentially fatal weapon. Lambert J correctly considered that this was not inconsistent with her approach in the present case. The observation as to the type of violence had to be read in the light of Lord Judge’s further observation (at para 40) that if that was too restrictive a direction, it was to the advantage of the appellants and that he could anticipate cases in which such a direction would indeed be over-advantageous to a defendant. Lambert J then applied her analysis to the prosecution case and concluded that there was sufficient evidence upon which a jury could conclude that the unlawful act occurred in foreseen or foreseeable circumstances. In particular, she referred (at para 42 of her ruling) to the following matters: “On the Crown’s case the unlawful act occurred in a domestic context when Ambreen was alone in the household with some or all of the defendants. The unlawful act took place after an earlier incident in which she had been injured and humiliated by the application of a caustic agent to her lower back and bottom. The unlawful act which led to Ambreen’s brain damage was a further injury in a similar context to the earlier injury. In my judgement the circumstances were of a kind which, if not foreseen, were foreseeable.” On this basis she refused the applications based on section 5. For the reasons stated above, she was right to do so. In the circumstances of this case, and in particular in the light of the earlier injury, Lambert J correctly considered that there was evidence on which the jury could conclude that the administration of the drug occurred in circumstances of the kind that were or ought to have been foreseen. This was pre-eminently a matter for the jury. The Court of Appeal went on to state (at para 42) that even if it had concluded that Lambert J did not err in rejecting the submission of no case, it would nevertheless have found that the summing up was tainted by the too broad interpretation that Lambert J had given to section 5(1)(d)(iii). While it considered that she directed the jury correctly upon the route to verdict in accordance with “the chronological statutory scheme of section 5(1)(d)(i) to (iii) as required”, in its view the summing up did not sufficiently assist the jury as to how they should approach the task in hand. In particular, the Court of Appeal observed (at para 37) that to enable the jury to consider, if they were to find that a non-perpetrating defendant was aware that there was a significant risk of serious physical harm, whether that defendant had failed to take steps that it was reasonable for them to take, called for “an intricate and evidentially tailored direction in relation to all components of section 5(1)(d)”. These criticisms are unfounded. 53. In summing up Lambert J reminded the jury that it was critical to the prosecution case that the sacral injury occurred before the glimepiride tablets were given because, according to the prosecution case, it was the act of putting the caustic substance on Ambreen’s lower back and the injury which it caused, which created the significant risk of serious physical harm being caused by one of the defendants by the subsequent unlawful act, and the awareness of that risk by each of the defendants. If the prosecution had not made the jury sure that the sacral injury occurred before the administration of glimepiride, they must find all defendants not guilty of the section 5 offence. She continued, in terms reflecting the statute: “The prosecution also need to make you sure that the defendant whose case you are considering was either the person who administered the glimepiride – so either the person who gave Ambreen the tablet – or, if he or she was not the person who gave Ambreen the tablet, he or she was aware of the sacral injury and was aware, or ought to have been aware, of the significant risk that Ambreen might suffer serious physical harm as a result of the unlawful act of another one of the defendants; and in addition, failed to take such steps as he or she could reasonably be expected to take to protect Ambreen from the risk; and the administration of the glimepiride tablets occurred in circumstances of the kind that the defendant whose case you are considering either foresaw or should have foreseen.” Lambert J then directed the jury that when considering whether each defendant failed to take such steps as he or she could reasonably be expected to take they must consider those matters from the perspective of the defendant in question. Each defendant’s circumstances should include their age, intellectual ability, gender and position within the family. She continued: “It is a matter for you to determine the circumstances in which the glimepiride was administered, and you should do this by taking into account all of the evidence. You should then determine whether you are sure that the defendant whose case you are considering foresaw those kind of circumstances, or ought to have done so …” 55. The judge then summarised the prosecution and defence cases for the benefit of the jury. In summarising the prosecution case she explained: “The prosecution says that, by the time Ambreen came to suffer irreversible brain damage, she was a vulnerable adult, and this is because she was unable to protect herself from violence, abuse or neglect. She had become vulnerable because she was, by this time, isolated within 15 Clara Street and dependent upon the defendants for her welfare, her existence and her life. The Crown say she had no friends, she had no money, she had no job, her passport was in Shagufa’s bedroom, and her relatives were threatened with violence and chased from the house when they came to see her on 11 July. The prosecution also says that, if it proves that the sacral injury was inflicted before Ambreen lost consciousness, then that is further evidence that Ambreen was vulnerable and that she was unable to protect herself and unable to seek medical help. The prosecution says that the brain damage which Ambreen suffered was unlawfully and deliberately caused by one or more of the defendants as a result of administering to her, or causing her to ingest, or to take, some form of antidiabetic agent which was, in all probability, the drug glimepiride. Although it is impossible to be categoric about the mechanism of injury, the prosecution say that the overwhelming evidence favours glimepiride as being the cause of Ambreen’s brain injury. Although there may have been some additional brain damage caused by Ambreen aspirating saliva or stomach contents, this was a direct consequence of her deeply unconscious state. Glimepiride was available at 15 Clara Street at the time having been part of Shabnam Sheikh’s regular prescriptions, and the administration of that antidiabetic agent resulted in hypoglycaemia – or low blood sugar, as we now know that word means – and in consequence, profound and irreversible brain damage from which Ambreen will not recover. The injuries to her brain constitute serious physical harm. It is the prosecution case that, some days before the brain injury was sustained, one of the defendants inflicted the sacral injury, the consequences of which must have been known to everyone in that house. The sacral injury took the form, the prosecution submit, of a caustic burn which must have been very painful and so the other defendants must have been aware of Ambreen’s condition. No help was sought. The prosecution say that there can only be one credible explanation for that failure, and that is that they each knew that Ambreen’s sacral injury had been inflicted unlawfully and deliberately by one or more of the members of that household, and that is the explanation why no medical help was called. As a result of that injury, the prosecution’s case is that, in respect of those defendants who are not the perpetrators, the remaining defendants were aware of, or certainly ought to have been aware, that Ambreen was, from then onwards, facing a significant risk of further serious physical harm at the hands of one or more of the members of the household. At some stage after the sacral injury was inflicted and before she suffered the brain injury, she also suffered, say the prosecution, traumatic damage to her right ear which was caused by the same chemical agent which caused the sacral injury. The defendants must have foreseen, or certainly ought to have foreseen, the risk of further physical injury. It was a repetition of serious physical harm which had been inflicted on Ambreen as part of a pattern of on-going physical violence and abuse already demonstrated by the sacral injury and the injury to her right ear. The defendants who were not the perpetrators did nothing to protect Ambreen from this on-going risk of which they were all aware and certainly ought to have been. No medical assistance was sought, nor was the matter reported to the police. These, say the prosecution, are steps which the defendants could, and should, reasonably have taken.” The judge then provided the jury with a fair summary of the case for each defendant. 57. The judge provided the jury with a “Route to Verdict”. Question 5 once again reflected the language of the statute: “Question 5: ‘Are we sure that the defendant whose case we are considering either (a) unlawfully caused the physical harm which Ambreen suffered—' If ‘yes’, you must find the defendant whose case you are considering guilty of the offence. If not, then go to (b) to (d) and ask yourselves whether you are sure that the defendant whose case you are considering (b) was aware, or ought to have been aware, of the significant risk of serious physical harm to Ambreen by the unlawful act; and failed to take such steps as he or she could reasonably have been expected to take to protect Ambreen from the risk; and the unlawful act occurred in circumstances of the kind that the defendant whose case you are considering foresaw, or ought to have foreseen. If your answers to any of the questions in (b) to (d) is ‘no’, then you must find the defendant whose case you are considering not guilty. If your answers to (b) to (d) above are all ‘yes’, then you must find the defendant whose case you are considering guilty of this offence.” 58. In considering the criticisms made by the Court of Appeal of the judge’s summing up, it is important to bear in mind that nobody in the present appeal has at any point suggested that the words “circumstances of the kind” in section 5(1)(d)(iii) bear a meaning other than their ordinary meaning. As a result, it was not for the judge to interpret and define the words of the statute for the benefit of the jury. Rather “[i]t is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved” (Brutus v Cozens [1973] AC 854 per Lord Reid at p 861 C–F). In the present case that was the role of the jury. It was not necessary for the judge to rule, as a matter of law, what the words mean. Indeed, it would have been wrong for the judge to attempt to do so. As Lord Reid observed (at p 861G): “No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different.” In the present case Lambert J acted entirely correctly in directing the jury in the terms of the statute. As Lord Judge observed in relation to the predecessor to section 5(1)(d)(iii) in R v Uzma Khan (at paras 36 and 40), generally speaking a direction framed in accordance with the statute pre-empts any criticism. Any attempt to paraphrase or elaborate upon the meaning of the words in section 5(1)(d)(iii) would have been unhelpful. Similarly, it would have been unhelpful to invite the jury to consider different hypothetical examples. What was required was a focus on the application of the words of the statute in their ordinary meaning to the facts as found by the jury. That was precisely what the directions of Lambert J provided. Further criticisms of the judge The Court of Appeal made further criticisms of the judge. However, none of these matters was relied upon as a ground of appeal before the Court of Appeal or by way of respondent’s notice on the appeal to this court. Furthermore, although these matters were addressed by Mr Donkin KC, on behalf of the appellant in his oral submissions, none of the respondents’ counsel sought to address us on these points. In these circumstances, these matters can be addressed relatively briefly. 61. First, the Court of Appeal observed (at paras 36 to 37) that the case against the defendants was riddled with evidential difficulties. The prosecution had opened the case on the basis that none of the medical expert witnesses was certain as to the precise causation of Ambreen’s hypoxic brain injury, save that it did not result from natural causes, but on the balance of probabilities it was due to hypoglycaemia caused by her ingestion of glimepiride. The other possible mechanism was interruption of vascular flow by manual pressure. The prosecution case was that it was unnecessary to show the precise mechanism, only that it was as a result of an unlawful act. The Court of Appeal, while observing that it was initially disconcerting to see reference to the civil standard of proof in relation to establishing the unlawful act, accepted that it was possible to mount a prosecution under section 5 on the basis that one or other of a number of specified unnatural and unlawful acts occurred to cause death or serious bodily harm if that be proved to the criminal standard. However, it considered that where, as in this case, it was either one act or the other that has led to death or serious injury, the direction would need to address each possible causative act of commission. 62. The prosecution case was supported by the expert evidence adduced by the prosecution at the trial. That evidence was that while the precise cause of Ambreen’s unconsciousness and brain damage was not capable of being identified it was probable that it was due to a hypoglycaemic coma caused by an anti-diabetic drug. Alternatively, it was possible that it was caused by manual obstruction of arterial blood flow. Whatever the precise cause, it was not due to any naturally occurring disease process. Further damage to the brain was caused by the obstruction of the airways after Ambreen had become profoundly unconscious. The prosecution case was that whatever the precise cause it was due to a deliberate and unlawful act on the part of one of the defendants. If the cause was a drug induced hypoglycaemia, accidental ingestion or deliberate self-ingestion could be ruled out because of the circumstances in which the defendants had attempted to conceal the victim’s condition. That matter resulted in their convictions for conspiracy to pervert the course of public justice. There is no substance in this criticism. The alternative possible causes were fairly presented to the jury in the summing up. Secondly, the Court of Appeal drew attention (at para 38) to the criminal offence of administering a poison or other noxious substance contrary to section 24 of the Offences against the Person Act 1861 and (at para 42) criticised the judge for failing specifically to address the question of administration of a noxious substance. In fact, section 24 of the Offences against the Person Act 1861 was not an issue at the trial. An unlawful act for the purposes of section 5(1)(a) and (c) is defined by section 5(5)(a) as one which constitutes an offence. The deliberate administration of a harmful agent with intent to cause the victim some physical harm is an offence. The matter was sufficiently addressed in the summing up and route to verdict. 65. Thirdly, the Court of Appeal observed (at para 39) that nothing in the judge’s ruling indicated that she had had regard to the evidence of Professor Pinkey, a professor of diabetics, and Professor Ferner, a consultant physician and clinical pharmacologist, which she subsequently summed up to the jury, to the effect that glimepiride “very, very rarely” appeared in world clinical literature as “a weapon or something which is given deliberately to cause an overdose and hypoglycaemia” and that only a small amount may cause “catastrophic results” in a thin young woman with a BMI of 18 such as Ambreen. The Court of Appeal concluded that Lambert J had not done so because she had erroneously accepted the prosecution submission that “circumstances of the kind” was to be broadly interpreted. Here it referred back to para 31 of its judgment, set out at para 42 above. The Court of Appeal appears to have considered this relevant to its conclusions in relation to foresight for the purposes of section 5(1)(d)(iii). In fact the judge observed at para 5 of her ruling on the submissions of no case to answer that it was the prosecution case that only a small quantity of the drug (8mgs – 12mgs or less, perhaps two or three tablets only) would be required to cause profound hypoglycaemia in a non-diabetic person. However, the rarity of the drug’s unlawful administration to another was not an issue which could have any bearing on the issue of foresight for the purposes of section 5(1)(d)(iii), since the necessary foresight was not of the unlawful act but of the kind of circumstances in which it occurred. For these reasons I consider that Lambert J was correct to dismiss the submissions of no case to answer on counts 1 to 5; Lambert J did not misdirect the jury in relation to counts 1 to 5. I would set aside the order of the Court of Appeal allowing the appeals against conviction of the respondents on counts 1 to 3 and 5 and reinstate those convictions. 68. Section 33(2) of the Criminal Appeal Act 1968 makes it a condition of granting permission to appeal to the Supreme Court that the Court of Appeal has certified that a point of law of general public importance is involved in the decision. For reasons which will be apparent from this judgment, I consider that the question certified by the Court of Appeal does not adequately address the real issues in this appeal. However, this court is not confined to considering only the certified point of law (R v Hayes [2025] UKSC 29, [2025] 1 WLR 3553, per Lord Leggatt at paras 42–43). During the course of argument Mr Robert Smith helpfully proposed the following alternative which I gratefully adopt. “Where, as on the facts of this case, an act causing serious physical harm to a vulnerable adult was (to employ the Court of Appeal’s term) utterly different from the antecedent violence inflicted on the victim, is that necessarily fatal to the requirement of foresight in section 5(1)(d)(iii)?” I would answer the question in the negative.

View download options Akbars Restaurant (Middlesborough) Limited (Appellant) vSecretary of State for the Home Department (Respondent) LORD SALES (with whom Lord Richards, Lord Leggatt, Lady Rose and Lady Simler agree): Section 15 of the Immigration, Asylum and Nationality Act 2006 (“section 15” and “the 2006 Act”, respectively) confers a power on the Secretary of State to issue a notice to impose a financial penalty on a person who employs an immigrant who has no permission to work in the UK. This appeal is concerned with the validity of a civil penalty notice (“the CPN”) issued by the respondent Secretary of State to the appellant, which is a company which operates a restaurant in Middlesbrough. According to the CPN, the appellant had breached section 15 by employing an adult subject to immigration control who was not entitled to work in the UK. The CPN required the appellant to pay £15,000 as a penalty. The appellant contends that the CPN did not give proper reasons for the imposition of the penalty, as required by section 15, and was invalid. The appeal gives rise to a question about the proper approach to the interpretation of a statute in light of its purpose. Legislative framework The Secretary of State has responsibility pursuant to the Immigration Act 1971 for regulating and maintaining effective immigration controls. 3. “15 Penalty It is contrary to this section to employ an adult subject to immigration control if— he has not been granted leave to enter or remain in the United Kingdom, or his leave to enter or remain in the United Kingdom— is invalid, has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum. An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment. But the excuse in subsection (3) shall not apply to an employer who knew, at any time during the period of the employment, that it was contrary to this section. The Secretary of State may give a penalty notice without having established whether subsection (3) applies. A penalty notice must— state why the Secretary of State thinks the employer is liable to the penalty, state the amount of the penalty, specify a date, at least 28 days after the date specified in the notice as the date on which it is given, before which the penalty must be paid, specify how the penalty must be paid, explain how the employer may object to the penalty or make an appeal against it, and An order prescribing requirements for the purposes of subsection (3) may, in particular— require the production to an employer of a document of a specified description; require the production to an employer of one document of each of a number of specified descriptions; require an employer to take specified steps to verify, retain, copy or record the content of a document produced to him in accordance with the order; require action to be taken before employment begins; require action to be taken at specified intervals or on specified occasions during the course of employment.” An order has been made setting out prescribed requirements for employment checks to be carried out by employers, for the purpose of the application of the excuse set out in section 15(3). Section 19 of the 2006 Act provides that the Secretary of State shall issue a code of practice specifying factors to be considered by her in determining the amount of a penalty imposed under section 15. The Secretary of State has issued a series of such codes of practice. The codes of practice set out matters such as the sorts of checks which employers are expected to carry out in relation to immigrant workers employed by them. 6. Section 16(1) of the 2006 Act provides for an employer who receives a penalty notice to give notice to the Secretary of State if they object to the penalty notice on the grounds that “(a) he is not liable to the imposition of a penalty, (b) he is excused payment by virtue of section 15(3), or (c) the amount of the penalty is too high”. Section 16(4) states that where the Secretary of State receives a notice of objection “he shall consider it and— (a) cancel the penalty, (b) reduce the penalty, (c) increase the penalty, or (d) determine to take no action” (ie leave the original penalty in place). Section 16(5) provides that where the Secretary of State considers a notice of objection he shall have regard to the code of practice under section 19 (in so far as the objection relates to the amount of the penalty) (paragraph (a)); “inform the objector of his decision before the end of the prescribed period or such longer period as he may agree with the objector” (paragraph (b)); issue a new penalty notice if the penalty is increased (paragraph (c)); and “if he reduces the penalty, notify the objector of the reduced amount” (paragraph (d)). Section 17 provides for an employer who has given a notice of objection to have a right of appeal to a court. Where the employer’s principal place of business is in England and Wales, the court is the county court. Section 17(3) stipulates that the appeal “shall be a re-hearing of the Secretary of State’s decision to impose a penalty” and is to be determined having regard to the code of practice issued under section 19 (paragraph (a)) and “(b) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware)”. Factual background and the proceedings in the lower courts On 15 January 2023 immigration officers conducted an inspection of the appellant’s restaurant, where they identified one migrant who was working illegally, his leave to remain in the UK having expired (“the worker”). On 9 February 2023 the Secretary of State, acting by officials in the usual way, sent an information request to the appellant seeking information, including about the pre-employment document checks which had been carried out in relation to the worker. No response was received. On 13 March 2023 the Secretary of State issued the CPN to the appellant for a penalty of £15,000. Under the heading “You are liable for a civil penalty” it stated: “We encountered a suspected breach of section 15 by your business on 15/01/2023. We have considered the information and evidence in your case, and concluded that you have breached section 15 … by employing an adult subject to immigration control who has a) not been granted leave to enter or remain in the UK, or b) their leave to enter or remain in the UK is invalid or has ceased to have effect, or c) who is subject to a condition preventing them from accepting the employment in question.” In this way the CPN listed all the options in section 15(1) without stating which one the Secretary of State thought applied in relation to the worker. In a section headed “Your penalty breakdown”, the CPN stated that the “Penalty reason” was “No right to work”, again without stating the basis, as specified in the options in section 15(1), on which that conclusion had been reached. The CPN indicated the evidence (interview records and photographic evidence) held by the Secretary of State which “shows that the illegal worker … identified was employed by you under a contract of service or apprenticeship and carried out work for which they did not have permission to undertake” (again, without stating which particular ground in section 15(1) was relied on). The CPN explained how the appellant should pay the penalty (with a discount for early payment) and how it could enter an objection to the notice. Attached to the CPN was a document headed “Statement of Case”. This explained why the Secretary of State believed that the worker was employed in the appellant’s restaurant and that the appellant had not established a statutory excuse under section 15(3). It stated, “Please be advised that Home Office records show that [the worker] does not have the right to work in the UK”, but did not set out which of the options in section 15(1) the Secretary of State considered applied. Under the heading “Conclusion” it was simply stated that the worker “was employed by you in breach of section 15 …”. The Statement of Case also explained how the penalty amount had been calculated, taking account of certain mitigating factors. On 9 April 2023 the appellant’s solicitor emailed a completed objection form to the Secretary of State, which stated that the worker “was lawfully present in the UK and had no restriction preventing him from taking employment”. The covering email contended that the worker was lawfully present in the UK and had applied for an extension of his leave to remain by the time of the inspection; it continued “please provide evidence which demonstrates that the alleged illegal worker has no right to work in the UK. The provision of such information is incredibly important as it will form the basis of whether [our] client will seek to appeal the penalty notice to the county court”. No further explanation or evidence was provided by the Secretary of State. On 26 April 2023 the Secretary of State issued an Objection Outcome Notice. This rehearsed the fact that the CPN had been issued for a penalty of £15,000 for breaching section 15 by employing an adult subject to immigration control by reference to all the options set out in section 15(1) (again without indicating which one applied), and stated that the appellant remained liable for a penalty of £15,000 (with a discount available for early payment). On 12 May 2023 the appellant filed an appeal in the county court against the CPN. The appellant repeated the substance of its objection to the CPN. Correspondence ensued between the appellant’s solicitor and the Secretary of State, in the course of which the Secretary of State confirmed her decision to uphold the CPN, which she said had been “issued pursuant to section 15(1)(b)(iii)”. On 21 July 2023 the Secretary of State filed and served the evidence on which she proposed to rely at the hearing of the appeal, which was to the effect that the worker’s leave to remain had expired so that, at the time of the inspection, he was an overstayer who did not have permission to work in the UK. By email dated 8 August 2023 to the Secretary of State, the appellant’s solicitor observed that this appeared to be a reference to the ground of liability set out in section 15(1)(b)(ii), whereas the impression had been given previously that section 15(1)(b)(iii) was being relied on. The email stated that the CPN was “defective and invalid for non-compliance with the 2006 Act”. The Secretary of State replied to say that in her view both section 15(1)(b)(ii) and (iii) applied. At the hearing in the county court before HHJ Gargan, the appellant raised its objection to the validity of the CPN as a preliminary issue. The appellant also maintained that it was not liable to the imposition of the penalty and that the penalty amount was excessive. The Secretary of State submitted that the CPN was valid: it complied with section 15(6)(a) because it stated that there had been a breach of section 15 for one or more of the reasons set out in section 15(1). No greater particularity was required. The Secretary of State also submitted that since the appeal was a re-hearing, in which the court had power to accept evidence which was not available to her when the CPN was issued, it was open to the court to find that the CPN was justified for a reason different from the one originally relied on by the Secretary of State. 21. The judge dismissed the appeal. He noted that the Secretary of State’s position was that by the form of the CPN she was reserving to herself the right to pursue any or all of the limbs of section 15(1) and that her case was that the CPN satisfied the requirement in section 15(6)(a) because it said that there was a breach of section 15 for one or more of the reasons given in that section, without the need for greater particularity (paras 26–27); and said that the appellant’s solicitor did not seriously challenge that argument (para 28). Nonetheless, the point about the validity of the CPN had been taken and had not been abandoned. The judge accepted the Secretary of State’s submission on that point, saying (para 34), “the whole purpose of section 15 is to impose a penalty on employers in respect of employees who have no right to work. The particulars given in section 15 identify the circumstances in which an individual might have no right to work”. There was no prejudice or injustice to the appellant “in allowing the [Secretary of State] to rely on the notice as drawn”, so as to permit her to rely on the ground set out in section 15(1)(b)(ii) and the evidence adduced by her in support of that ground: para 41. The appellant appealed to the Court of Appeal on a single ground for which permission to appeal was granted, namely that the judge had erred in law in determining that the CPN complied with section 15(6), notwithstanding that it listed all the statutory reasons in section 15(1) (albeit in the alternative), which are mutually exclusive; and had erred in law in determining that the Secretary of State could change the reason being relied on shortly before the appeal hearing and without re-issuing the penalty notice. The Court of Appeal (Lewison, Coulson and Zacaroli LJJ) dismissed the appeal: [2024] EWCA Civ 1387; [2025] 1 WLR 1306. Zacaroli LJ gave the substantive judgment, with which the other members of the court agreed. The appellant’s principal submission was that the CPN was invalid because under the heading “You are liable for a civil penalty” it referred to all the grounds in section 15(1) (para 3 above) and this could not be cured by anything appearing later in the notice. Zacaroli LJ rejected that submission, holding that in determining whether a penalty notice satisfies the requirement in section 15(6)(a) it is necessary to look at the notice as a whole: para 32. The appellant’s alternative submission was that, even reading the CPN as a whole, it failed to specify which limb of section 15(1) was relied on and was defective for that reason. The contention was that the requirement in section 15(6)(a) for the Secretary of State to state why she thinks the employer is liable to the penalty requires that she should state which of the grounds in section 15(1) she thinks applies. Zacaroli LJ rejected that submission as well. Zacaroli LJ held that section 15(6)(a) should not be read in that restrictive way, on the grounds that the language of the provision is general and non-prescriptive; as a matter of ordinary language, a notice which identifies to the employer the facts and evidence on which the Secretary of State has reached the conclusion that a particular person, who does not have the right to work, is working under a contract of employment with the employer in breach of section 15(1) is a notice which states “why” the Secretary of State thinks the employer is liable to a penalty; and greater specificity would be required in the wording of section 15(6)(a) to impose an obligation on the Secretary of State to be more specific: paras 34–35. 27. Section 15(6)(a) “must be seen in light of the statutory scheme as a whole and its purpose”, which was to discourage illegal employment of persons subject to immigration control, and does so by placing the onus under section 15(3) on an employer to carry out the necessary checks on those it employs: para 36. Under section 17(1), the same onus lies on an employer who appeals. In Zacaroli LJ’s view this provided the answer to the appellant’s submission that a penalty notice has the effect of a judgment and, without specifying the limb of section 15(1) relied on, the employer could not know whether to challenge it: paras 38–40. Further, according to Zacaroli LJ, on an appeal, which is a re-hearing of the decision to impose the particular penalty on the particular basis originally identified, it would be open to the court to allow the Secretary of State to rely on a different limb of section 15(1) from that referred to in the penalty notice, and this again indicates that section 15(6)(a) should not be read with the restrictive meaning contended for by the appellant: paras 41–42 and 45. The parties’ submissions The appellant’s submission in this appeal, as in the courts below, is that the CPN was invalid because it failed to comply with the requirement in section 15(6)(a) that a penalty notice “must … state why the Secretary of State thinks the employer is liable to the penalty”. By specifying in the CPN all the grounds in section 15(1), which are mutually exclusive, as part of the reason for it being issued, the Secretary of State had not actually stated why she thought that the employer is liable to the penalty set out in the CPN and had failed to give the appellant fair notice of her reasons why a penalty was to be imposed. Mr Zane Malik KC for the Secretary of State supports the decision and reasoning of the Court of Appeal. In that regard he emphasises the purpose which he says Parliament had in introducing the regime, which was to encourage employers to carry out reasonably diligent checks on workers before and after the point of their recruitment, while they remained so employed; the mischief which the regime was intended to address was illegal working in the UK. To accept the interpretation of section 15(6)(a) proposed by the appellant would allow a technical argument to frustrate the aim of the statutory regime. 31. Mr Malik also submits, in the alternative, that if (contrary to the view of the Court of Appeal) there was a defect in the CPN, that defect did not render the CPN invalid or unlawful. He seeks to rely on R v Soneji [2006] 1 AC 340, in which the House of Lords articulated a nuanced approach to determining the legal effect of a failure to comply with a statutory procedural requirement, indicating that it is necessary to ask what Parliament would have intended the effect of the breach of the requirement to be as regards the validity of a step taken as a result of that breach. He submits that in the present case the appellant was in no doubt as to why the Secretary of State took the view that it was liable to the imposition of a penalty under section 15; other requirements were complied with, including that the appellant was advised of its right to object to the CPN, the grounds on which it might object and the procedure for filing the notice of objection; and the purposes of serving a penalty notice and of section 15(6)(a) were satisfied. There had therefore been substantial compliance with the requirements of that provision and of section 15 as a whole, so that it should be inferred that in these circumstances Parliament intended that the CPN should be treated as valid. In support of that submission, Mr Malik further relies, in particular, on JN (Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 307; [2009] Imm AR 615 (“JN (Cameroon)”), para 27. In my view, Zacaroli LJ was correct to say (see para 24 above) that to assess whether a penalty notice issued under section 15 complies with the requirements of that provision it is necessary to look at the substance of the notice read as whole. That leaves the question whether, reading the CPN as a whole, it did comply with section 15(6)(a). 34. The context in which section 15(6)(a) appears has an important constitutional dimension. Section 15 and the accompanying provisions in the 2006 Act create a regime under which the state, by action by the Secretary of State, may impose a penalty on a person. It is described as a civil penalty, which has certain implications regarding the procedure to be followed. But the interpretation of section 15 has to proceed against the background that the regime is penal in nature. Where the state imposes a penalty of this kind, it is to be expected that proper reasons should be given to explain why it is doing that and to show that its action is justified. The person affected is entitled to know why the penal power of the state has been invoked against them. The giving of reasons also imposes appropriate discipline on the state to ensure that such power is being exercised properly and serves as a practical safeguard against capriciousness. In my view, in the context of the exercise of the penal power of the state, these are considerations and values which Parliament, acting as a reasonable legislature in a liberal democracy which respects the rule of law, is to be taken to have wished to promote in the operation of the regime. 35. Further, fairness requires that the person affected should be given accurate and sufficient information about the reasons why a penalty has been imposed, so that they can make an informed decision about whether to appeal pursuant to section 17, can understand what evidence they will need to adduce in support of such an appeal and can have a reasonable opportunity to contest those reasons in court if they do appeal. This is relevant both to the basic issue of whether the immigrant worker falls within one of the limbs of section 15(1) and also to the issue whether the employer took reasonable steps to check whether such a problem existed, which may be relevant to the operation of the defence under section 15(3) and also to arguments regarding mitigation affecting the amount of the penalty. It is well established that Parliament legislates on the footing that the exercise of power by a public authority which has a detrimental impact on a person should be carried out in a fair manner: see R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 (a case concerning the procedure required to be adopted by the Secretary of State before exercising his power to set a minimum period which a prisoner would have to serve in prison for the purposes of retribution and deterrence before being eligible for consideration for parole) at p 560, per Lord Mustill: “where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances”. The alternative cases described in section 15(1) are mutually exclusive. If a court was responsible for imposing a fine of £15,000 for breach of section 15, it would not be acceptable for it to give a judgment simply saying that the case before it fell within one or other of three mutually exclusive cases, without saying which one. Similarly, if a person was charged with an “offence” of breaching section 15(1), it would be incumbent on the prosecution to state which limb of section 15(1) was being relied on. 37. Both these points are relevant here. The issuing of a penalty notice is an operative judgment by the state that a penalty should be imposed, and may be the only one (if there is no appeal). There is no good reason why the fact that the Secretary of State is the person who makes the decision to impose the penalty should make any difference as to the standard of explanation for that decision which is to be regarded as acceptable. A person is entitled to know why a penalty has been imposed on them, and simply saying that one or other of three mutually inconsistent grounds applies does not tell them that. In addition, the regime is structured in such a way that the penalty notice operates as a form of charge levelled against an employer, which may fall to be scrutinised by a court if the employer decides they wish to test the imposition of the penalty on an appeal to the county court. This point is reinforced by section 15(5) (para 3 above): the Secretary of State may give a penalty notice without having established whether subsection (3) applies, which means that the employer may have to appeal to test whether a defence arises under that provision, and in doing so may challenge the penalty on other grounds as well (including that the grounds relied on by the Secretary of State for issuing the notice could not be made out by her). Since a penalty notice also serves that charge-laying function, there is no good reason why the Secretary of State should be subject to a lesser standard in particularising the case actually being made against the employer than any other prosecuting authority which invokes the penal power of the state. In my view, these are important factors which are relevant in informing the approach to be adopted when interpreting section 15, and section 15(6)(a) in particular. Section 15(2) authorises the Secretary of State to give an employer a penalty notice only where she has established that the employer has acted contrary to section 15(1). A distinction is drawn in this respect between section 15(1) and section 15(3): section 15(5) permits the Secretary of State to give a penalty notice without having established whether section 15(3) applies. Since the three limbs in section 15(1) are mutually exclusive, the Secretary of State (acting by her officials) must necessarily consider and decide which one (if any) of those limbs applies, in order to be able to decide whether her power under section 15(2) to give a penalty notice has arisen. Section 15(6)(a) states that a penalty notice “must … state why the Secretary of State thinks the employer is liable to the penalty”. It is expressed in mandatory terms. In setting out an obligation on the Secretary of State to state why she thinks the employer is liable to the penalty which the Secretary of State has decided to impose under subsection (2), section 15(6)(a) requires the Secretary of State to explain her thought process in coming to that view. This means—reading the language used according to its natural and ordinary meaning in the overall context of section 15—that she must state her reasons, including by explaining which of the limbs of section 15(1) she thinks applies. This interpretation of section 15(6)(a) is reinforced by the constitutional context, as set out above. Furthermore, since the provision applies where the Secretary of State must necessarily have formed a positive view about which limb of section 15(1) applies, there is no sensible reason why she should not be required to explain that to the employer, and section 15(6)(a) should be interpreted accordingly. 42. The Court of Appeal placed weight on the fact that, if an employer wishes to invoke the excuse under section 15(3), the onus is on them to show that they complied with any prescribed requirements in relation to the employment. In my view, however, consideration of section 15(3) cannot displace the natural interpretation of section 15(6)(a) set out above. That is for several reasons: (i) section 15(3) does not impose a duty on the employer to do anything; it merely provides for the employer to have an excuse in certain circumstances, so in interpreting section 15 it cannot be presumed that the employer must have carried out checks; (ii) the Secretary of State may impose a penalty charge without consideration of any defence under section 15(3) (see section 15(5)), and section 15(6)(a) imposes an obligation on the Secretary of State irrespective of whatever may be the position under section 15(3); (iii) section 15(3) sets out an excuse which an employer may seek to make out if it transpires that they are otherwise liable to pay the penalty charge set out in the notice, whereas the issue on the interpretation of section 15(6)(a) relates to what the Secretary of State is required to set out at the prior stage of issuing the notice itself; (iv) an employer may have other defences (in particular, it is a defence to the imposition of a penalty if the notice imposing the penalty charge should not have been issued by the Secretary of State in the first place) and the employer is entitled to be told the nature of the case against them so that they can know whether they have such a defence; and (v) in any event, the possibility that the employer might have carried out some checks, with a view to gaining protection by raising an excuse under section 15(3), cannot outweigh the points at paras 34–38 above and at paras 43–46 below regarding the proper interpretation of section 15(6)(a). Section 15 is part of a group of provisions comprising sections 15 to 19 of the 2006 Act, which also form part of the context in the light of which section 15(6)(a) falls to be interpreted. The effective operation of those provisions requires that the Secretary of State should state which limb of section 15(1) she thinks applies in the particular case. Section 16 (notice of objection) (para 6 above) presupposes that an employer in receipt of a penalty notice is in a position to explain any defence available to them under subsection (1), including that “he is not liable to the imposition of a penalty”. Among other things, this requires that they are able to tell from the penalty notice which limb of section 15(1) is being relied on by the Secretary of State, so that they can deny that charge. Section 16(4) says that where the Secretary of State receives a notice of objection she “shall consider it” and take action in light of it, which may consist of cancelling the penalty (paragraph (a)). Accordingly, when a notice of objection is sent, the Secretary of State has to go through the relevant mental process again, and the employer can only assist her to do that if they know what the Secretary of State’s original reasoning process was. Further, one of the grounds on which the employer may seek to persuade the Secretary of State to cancel the penalty is by showing that the Secretary of State was in error in thinking previously that the limb of section 15(1) relied on by her was made out, and to be able to do that the employer needs to know from the penalty notice which limb that was. 46. Under section 17(1) (para 7 above) an employer may appeal on the ground that they are “not liable to the imposition of a penalty”, which may be established if the employer can show that the limb of section 15(1) relied on by the Secretary of State is not made out. Again, the employer is only able to pursue an appeal in that way if they know which limb of section 15(1) was relied on by the Secretary of State. In such a case, the court may allow the appeal and cancel the penalty: section 17(2)(a). As stated in section 17(3) the appeal is a re-hearing “of the Secretary of State’s decision to impose a penalty”, meaning that the focus of the appeal is the decision actually taken by the Secretary of State, including the limb of section 15(1) which she relied on. The Secretary of State is not permitted to defend the appeal by relying on a limb which has not been specified. The appeal is to be determined having regard to any other matters which the court thinks relevant, including matters of which the Secretary of State was unaware (section 17(3)(b)), but this just means that the Secretary of State may adduce new evidence bearing on the matters actually decided by her (including, eg, whether a person was working for the employer). It is not a provision which permits the Secretary of State to change the basic nature of the case against the employer on an appeal. Mr Malik submits that section 15(6)(a) has to be interpreted in the light of its purpose, and sought to characterise the purpose as set out at para 30 above, in an effort to gloss the meaning of the language used. In my view, this submission is unsustainable. Mr Malik’s appeal to the general purpose of section 15 is pitched at a level which is too general and abstract, and is untethered from the language used by Parliament in section 15(6)(a), read in context. Determination of the purpose of a statutory provision has to be linked to the language Parliament has chosen to use. “[I]t is the words of the provision itself read in the context of the section as a whole and in the wider context of a group of sections of which it forms part and of the statute as a whole which are the primary means by which Parliament’s meaning is to be ascertained: [R (O)], paras 29–30 (Lord Hodge)”: PACCAR, para 42. 48. The drafter will often seek to take account of a number of objects when drafting legislation, so that the text of a provision strikes a balance between them. In their joint speech in Maunsell v Olins [1975] AC 373, at p 393, Lord Simon of Glaisdale and Lord Diplock warned against a simplistic approach to construction based on an assumption that the drafter has sought to remedy only one mischief, and discounted the crude idea that a statutory provision has only one statutory objective: “For a court of construction to constrain statutory language which has a primary natural meaning appropriate in its context so as to give it an artificial meaning which is appropriate only to remedy the mischief which is conceived to have occasioned the statutory provision is to proceed unsupported by principle, inconsonant with authority and oblivious of the actual practice of parliamentary draftsmen. Once a mischief has been drawn to the attention of the draftsman he will consider whether any concomitant mischiefs should be dealt with as a necessary corollary.” The drafter may pursue a main statutory object whilst at the same time taking account of other important relevant considerations, such as the requirements of fairness and legal certainty. As was stated pithily by the US Supreme Court in Rodriguez v United States (1987) 480 US 522, 525–526: “no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” (Emphasis in original.) 50. To similar effect, in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 WLR 324, at paras 170–171, Lord Neuberger of Abbotsbury and Lord Mance (speaking with reference to EU legislation, but making a general point) said: “It is a common place in legislation that objectives may not be fully achievable or achieved. Compromises or concessions have to be made if legislators are to achieve the enactment of particular provisions … When reading or interpreting legislation, it can never therefore be assumed that particular objectives have been achieved to the fullest possible degree. Limitations on the scope or application of a legislative measure may have been necessary to achieve agreement. There may also have been good reasons for limitations, of which courts are unaware or are not the best judge. Where the legislature has agreed a clearly expressed measure, reflecting the legislators’ choices and compromises in order to achieve agreement, it is not for courts to rewrite the legislation, to extend or ‘improve’ it in respects which the legislator clearly did not intend.” In the present case, the relevant purpose of section 15(6)(a), in so far as the explanation to be given was required to explain which limb of section 15(1) the Secretary of State thought applied, was plainly to inform an employer in receipt of a penalty notice why it was being imposed and also, in consequence, to enable them to be able to make an informed decision whether to appeal on that point. On the basis that section 15(6)(a) is to be given the interpretation I have set out, contrary to the view of the courts below, Mr Malik submits that HHJ Gargan was still right to dismiss the appellant’s appeal in the county court. Mr Malik relies on the approach to breach of procedural requirements set out in statute explained in R v Soneji. On this submission, although section 15(6)(a) imposed an obligation on the Secretary of State to specify the limb of section 15(1) relied upon as the basis for imposing the penalty charge, which was breached, by the time of the hearing in the county court the Secretary of State had specified which limb was being relied upon. So, it is said, the appellant has not really suffered any detriment, and in these circumstances Parliament cannot be taken to have intended that the CPN should be treated as invalid, with the result that the appellant’s appeal under section 17 of the 2006 Act should be dismissed. 53. The significance of R v Soneji is that it introduced a new framework for addressing the question of what effect breach of a procedural requirement set out in statute would have on subsequent proceedings. The previous division between treating such a requirement as mandatory (any breach of which would invalidate that procedural step, and any proceedings which followed it) or as directory (any breach of which would not invalidate the procedural step or any proceedings which followed it), with no possibility of any middle position, was revisited so as to introduce a middle position as a possible interpretive option. The relevant approach is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; and in determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute (see the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, para 93; endorsed in R v Soneji, para 21). The recognition in R v Soneji of this new framework for analysis does not mean that the effect of procedural rules in every statutory context turns on detailed examination of the consequences arising from the breach of the particular rule. Nor does it mean that a test of substantial compliance applies in every case in order to determine the validity of some procedural step. Examination of the purpose served by a particular statutory procedural rule, such as a rule requiring notice to be given of some matter, may indicate that Parliament intended it should operate strictly, so that any failure to comply with it invalidates the notice and that procedural step. 55. In my view, in the context of the regime in the 2006 Act, section 15(6)(a) sets out a clear condition for the validity of a penalty notice so far as is relevant in this case, namely that the Secretary of State has to specify which limb of section 15(1) is being relied on as the basis for the imposition of the penalty set out in the notice. The interpretive guidance from the constitutional context as set out above points strongly in this direction, as does consideration of the statutory regime as a whole and the way it is supposed to operate in practice. An employer who receives a penalty notice is entitled to know from the notice which limb of section 15(1) is being invoked to justify imposing the penalty. The importance of fairness in this context also points to that result. An employer should not have to appeal in order to find out which limb of section 15(1) is in fact being relied on by the Secretary of State, which is what happened here. Further, a penalty notice has effect if there are no later proceedings (ie if there is no appeal), and Parliament’s intention as to the operation of section 15(6)(a) has to be tested in the light of that possibility. 56. On the other side of the equation, looking at matters from the perspective of the Secretary of State, it is difficult to see that there is any good reason which could lead to the inference that Parliament intended that breach of the requirement in section 15(6)(a) as regards identifying the particular limb of section 15(1) relied on should not have the simple result that the penalty notice is invalid. Such an interpretation does not impose an unreasonable burden on the Secretary of State, since she holds all the relevant records regarding the immigration status of individuals and in order to exercise her power under section 15(2) she necessarily has to go through the process of identifying the limb of section 15(1) she relies on. Where the Secretary of State is empowered to impose a penal sanction on a person, it cannot be inferred that Parliament intended that a basic error regarding the applicability of section 15(1) might have no real consequence in relation to the validity of the penal notice. That point is reinforced by the fact that, unlike in R v Soneji, if it appears that an error has been made, the Secretary of State can issue a new penalty notice which does comply with the statutory requirement. 57. JN (Cameroon) does not assist the Secretary of State. It concerned whether the Asylum and Immigration Tribunal had jurisdiction to entertain an immigration appeal in a deportation case, where the notice of a decision to make a deportation order failed to specify, as required by regulations, the country to which the recipient was to be removed. The statutory context was very different. The operative decision for deportation is not the notice itself, but the underlying decision to deport, and it was against that decision that the appeal lay. The deficiency in the notice had no effect on the jurisdiction of the tribunal (para 21), nor on the validity of the underlying decision to deport (para 22). Even if the procedural defect in the notice could have an effect on the validity of the appeal, the middle-way approach in R v Soneji was applicable; “the proposed destination was clear and … the appellant’s ability to present his appeal was not impaired in any way by the failure to state the destination in the notice”, so that “non-compliance with the requirement has plainly not had any material adverse effect on fulfilment of the purpose for which the requirement is imposed” (para 27). By contrast, in the present context the middle-way approach in R v Soneji is not applicable. Section 15(6)(a) sets out a clear requirement so far as concerns specification of the limb under section 15(1) and failure to comply with that requirement rendered the CPN invalid. Fulfilment of the relevant purpose of section 15(6)(a) as set out at para 51 above would be unacceptably undermined if the CPN were given effect notwithstanding the failure to comply with that requirement.

View download options Tesla, Inc and another (Appellants) v InterDigital Patent Holdings, Inc and others (Respondents); Tesla, Inc and others (Respondents) v InterDigital Patent Holdings, Inc and another (Appellants) No 2 Appellants/Respondents – Tesla, Inc and Tesla Motors Ltd Daniel Alexander KC Andrew Lykiardopoulos KC James Segan KC Ligia Osepciu (Instructed by Powell Gilbert LLP) Respondents/Appellants – InterDigital Patent Holdings, Inc and InterDigital Holdings, Inc Thomas Raphael KC Maxwell Keay Sophie Ryan (Instructed by Gowling WLG (UK) LLP) Respondents/Appellants – Avanci Vehicle, LLC (formerly Avanci, LLC) Brian Nicholson KC Kathryn Pickard KC Miruna Bercariu (Instructed by Osborne Clarke LLP and EIP Europe LLP) Intervener – International Center for Law & Economics (written submissions only) (Instructed by Pinsent Masons LLP) Intervener – Computer & Communications Industry Association (CCIA) (written submissions only) (Instructed by Hogan Lovells Cadwalader International LLP) Intervener – Fair Standards Alliance (FSA) (written submissions only) Colin West KC (Instructed by Kirkland & Ellis International LLP) LORD HAMBLEN AND LORD KITCHIN (with whom Lord Sales, Lord Briggs and Lord Burrows agree): This appeal raises issues of great importance for all those innovators and implementers concerned with the production and operation of vehicles and other products which need to connect with one another, and for that purpose need to comply with a technical standard. The dispute concerns the terms of a global platform licence of “standard essential patents” (or “SEPs”) offered by the fourth defendant (“Avanci”) to automotive companies for use in 5G-enabled vehicles. The claimants (together “Tesla”) wish to launch 5G-enabled vehicles in the United Kingdom (the “UK”) and seek declarations as to the terms of a fair, reasonable and non-discriminatory (“FRAND”) licence to use the SEPs on the 5G licensing platform operated by Avanci, including those owned by the second defendant (together with the third defendant, “InterDigital”). The first question is whether there is a serious issue to be tried on Tesla’s claims (“the Licensing Claims”) for declaratory relief against InterDigital and Avanci. This in turn requires this court to consider whether the courts of England and Wales have jurisdiction to decide a dispute concerning the terms of a licence to use a SEP in circumstances where the claim is brought by an implementer rather than the SEP owner, the SEP forms part of a platform of SEPs having different owners, and the licence is offered by the platform operator acting as agent of those different SEP owners. Secondly, there are issues as to whether the Licensing Claims against the second defendant (“IDPH”) were properly served pursuant to CPR r 63.14(2) and the scope of that rule; and whether the Licensing Claims against the third defendant (“IDH”) fall within the classes of case for which permission to serve out of the jurisdiction may be given because they pass through what is known as Gateway 3 or Gateway 11 of CPR PD 6B. Thirdly, there is a dispute about the appropriate forum for the resolution of this dispute. Here a question arises as to whether the Delaware Court of Chancery is an available forum. If it is an available forum, further issues arise as to whether permission to serve IDH and Avanci out of the jurisdiction should be set aside on the basis that England and Wales is not clearly the more appropriate forum; and whether the proceedings against IDPH should be stayed on the ground of forum non conveniens. Finally, there is an issue as to whether permission to serve the proceedings out of the jurisdiction ought to have been refused as a matter of discretion. It will assist in understanding our assessment of these issues to provide an introduction to the standards system that underpins the Licensing Claims and to some of the more recent developments concerning the licensing of SEPs, the FRAND requirement and the disputes that have arisen in this area. It is now well understood that standards play a vital role in many areas of technology. They permit the products of one manufacturer to be used or to communicate with those of another and, more broadly, promote the interoperability, safety and quality of new products and systems. In this way they also encourage investment and innovation, and they support the creation and development of new industries and markets. Standards are usually produced by standard setting bodies and organisations (“SSOs”) with the assistance of industry and technical experts. This appeal is concerned with the standards set by the European Telecommunications Standards Institute (“ETSI”) and in particular the 5G standard for use in connection with 5G-enabled vehicles. Similar standards have been produced by ETSI for use in connection with 2G, 3G and 4G. The development of 6G standards is presently underway. Standards have also been used for many years in areas extending a good deal further than cellular technology for use with interconnected vehicles, and this is expected to continue. For example, they are applied, and will become increasingly important, in fields involving digital communications, telecommunications, consumer electronics and semiconductors. Further, some of the markets expected to rely ever more upon standards are those concerned with connected health, green technology, clean energy, streaming services and video on demand. All of these illustrate the wide importance of the issues raised by this appeal. The businesses operating in these technical areas and markets are sometimes very substantial but often are small or of only modest size. Indeed, one sector to which the issues raised by this appeal are of particular significance is that occupied by the many micro, small and medium size enterprises which devise, make and sell what are known as internet of things (“IoT”) devices across a range of industries. What is meant by IoT in this context is a network of connected devices that use sensors to collect and process data, which they can then share with other devices without the need for human interaction. These networks include, for example, home systems for monitoring occupation and adjusting lighting and heating; medical wearable devices for monitoring vital signs or the level of a blood marker such as glucose; and, in an industrial setting, output performance levels. SEPs describe and claim inventions which are declared by their owners to be essential to implementing a standard. As a condition of having an invention adopted and a patent declared as essential, the owner is generally required to enter into an irrevocable agreement with the relevant SSO to make the technology available for licence on FRAND terms. Businesses seeking to make and supply products or systems which implement or comply with a standard therefore rely on SEP owners to offer licences to use the inventions they describe promptly and on FRAND terms. For their part, the SEP owners rely on these implementers to take the FRAND licence they offer and not to delay unduly in doing so. ETSI is the body responsible for the development and promotion of telecommunications standards. It has formulated for this purpose a policy called the ETSI IPR Policy (or “the IPR Policy”) which was considered in detail by this court in Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] UKSC 37; [2020] Bus LR 2422 (“UPSC”), paras 6–14. So far as relevant to the issues arising in this appeal, the following aspects of the IPR Policy are of particular importance. 15. The IPR Policy is a contractual document governed by French law. It falls to be construed, like other contracts in French law, by reference to the language used in the relevant clauses of the contract and having regard to the context, that is to say, both the external context and the internal context of the policy document itself (UPSC, para 8). The policy refers to patents and other intellectual property rights (“IPRs”) which would inevitably be infringed by, for example, the sale or operation of components which comply with the standard as “Essential IPRs”, a term which includes SEPs, and it aims to strike a balance between two competing aims. The first is to ensure the technologies needed to operate according to the standard are made available to implementers as soon as possible (and SEP owners are prevented from “holding up” the implementation of the standard); and the second is to ensure these SEP owners are adequately and fairly rewarded for the use of their technologies (and that implementers are discouraged from “holding out” by unduly dragging out the process of licence negotiation, putting the SEP owners to additional cost and effectively forcing them to accept a lower royalty rate than is fair). The provisions of the IPR Policy primarily designed to achieve this balance begin with the imposition on each member of ETSI of an obligation to use its reasonable endeavours to inform ETSI in a timely manner of any of its IPRs—that is to say, for present purposes, patent rights—which might be essential to a standard which is being developed, and to declare its IPRs to ETSI for that purpose. When considering whether to include the technology described in a patent in the standard, ETSI requires the owner to enter into an irrevocable undertaking with it to allow implementers of the standard to obtain a licence to use the patented invention on FRAND terms. This obligation applies to all existing and future members of a patent family, and a patent family for this purpose includes patents relating to the same invention applied for and obtained in different jurisdictions. If the patented invention is included in the standard, the patent is treated as an Essential IPR (or SEP). But ETSI is not under any obligation to check whether patents declared to be essential are in fact essential to the standard. Nor does ETSI make any binding judgment on the validity or status of any such patents. These are matters left to national courts. The operative clauses of the IPR Policy accordingly include, at clause 4.1, an obligation on every member to inform ETSI of its IPRs which might be essential. Then, under clause 6.1, the Director-General of ETSI must request the member to give within three months an irrevocable undertaking in writing that it is prepared to grant irrevocable licences of such IPRs on FRAND terms. These licensing declarations are intended to bind all successors in title and, on transfer of a SEP, the member is required to take steps to ensure this is achieved (clause 6.1bis). 19. The member must then make a licensing declaration to ETSI which contains an undertaking which creates a French law contract for the benefit of third parties (stipulation pour autrui), whereby the declarant undertakes that, to the extent that the disclosed IPRs are, or become, Essential IPRs, including SEPs, they are prepared to grant irrevocable licences in compliance with clause 6.1 and will comply with clause 6.1bis. This declaration and associated undertaking (“the FRAND obligation”) is given by the member on behalf of itself and entities under common ownership or control (clause 15) and is in these terms: “The Declarant hereby irrevocably declares that (1) it and its AFFILIATES are prepared to grant irrevocable licenses under its/ their IPR(s) on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy, in respect of the STANDARD(S), TECHNICAL SPECIFICATION(S), or the ETSI Project(s), as identified above, to the extent that the IPR(s) are or become, and remain ESSENTIAL to practice that/ those STANDARD(S) or TECHNICAL SPECIFICATION(S) or, as applicable, any STANDARD or TECHNICAL SPECIFICATION resulting from proposals or Work Items within the current scope of the above identified ETSI Project(s), for the field of use of practice of such STANDARD or TECHNICAL SPECIFICATION; and (2) it will comply with Clause 6.1bis of ETSI IPR Policy with respect to such ESSENTIAL IPR(s).” A box can be and often is ticked indicating: “This irrevocable undertaking is made subject to the condition that those who seek licences agree to reciprocate.” This court also explained in UPSC, paras 58–65, that the IPR Policy was intended to have international effect and to mirror commercial practice in the telecommunications industry, and that this practice formed part of the context against which the FRAND obligation fell to be interpreted. As to the content of that commercial practice, an implementer does not know which SEPs are valid and would be infringed by operating the standard but needs authority from the outset to use the technology and inventions disclosed and described in them. Similarly, a declarant/SEP owner cannot be sure whether any particular SEP is valid and would be infringed by an implementer operating the standard without a licence. The practical solution in the industry, therefore, is for the SEP owner to undertake to license its portfolio of declared SEPs without knowing for sure how many are valid and would be infringed by implementing the standard, and it is common practice to do so on a global basis. This is a sensible way of dealing with unavoidable uncertainty. In the circumstances of at least one of the cases before the court, such parties would regard the negotiation of licences country by country as “madness” and so a FRAND licence between the relevant parties before the court had to be a worldwide licence. Importantly, if an implementer does not accept a licence on FRAND terms, the possibility of an injunction from the national court to restrain infringement of any patent found valid and infringed is not excluded either expressly or by implication. The IPR Policy imposes a limitation on the SEP owner’s ability to seek an injunction, but that limitation is the irrevocable undertaking to offer a licence on FRAND terms which, if accepted and honoured by the implementer, would preclude a finding of infringement. 23. As a way of simplifying the systems for the granting and taking of the necessary licences to operate under a standard, and minimising or at least reducing associated costs, a practice has developed in various markets of SEP owners choosing to license their SEPs through a platform or a pool operated by an agent. In both cases, that is to say a platform and a pool, the implementer agrees to pay a single fee and secures a licence to use all the SEPs on the platform or in the pool, as the case may be. If the rate is or appears reasonable, this may prove very popular with implementers, not least because it is a highly cost effective way of securing a licence to use many if not all of the SEPs necessary to operate the standard, and because it may not be practicable (and is likely, in any event, to be very expensive and time consuming) to negotiate a large number of bilateral licences individually. Indeed, as will be seen, for businesses concerned with at least the standard for 4G-enabled motor vehicles it has had two further consequences. First, some SEP owners choose to rely on the offer of the platform licence to meet their FRAND obligation. Secondly, some SEP owners choose not to maintain the separate systems and facilities needed to offer and negotiate individual bilateral licences. The courts in this country have now recognised that responsible implementers do not always wait for demands from SEP owners for payment and sometimes take active steps to secure the FRAND licences they need. Further, there is now an established practice of implementers proactively bringing declaratory proceedings to determine whether a bilateral offer of a licence by a SEP owner is or is not FRAND and, so far as it is not, to invite the court to settle the terms of a FRAND-compliant licence including, in an appropriate case, a global licence. A central question raised by this appeal is whether, as Tesla contends, an implementer is also able to bring proactive declaratory proceedings to test whether a SEP owner’s licensing offer is FRAND if that offer is made together with that of other SEP owners through an agent operating a patent pool or patent platform. The two Tesla claimants are, respectively, a company incorporated in the State of Texas and headquartered there (Tesla US) and a wholly-owned indirect subsidiary incorporated in England and Wales which sells premium fully electric vehicles and provides services in relation to such vehicles in the UK (Tesla UK). The second and third defendants (respectively IDPH and IDH) are members of the InterDigital group, a research and development organisation which licenses, among other things, wireless communications technology. IDPH and IDH are Delaware corporations and their principal place of business is in each case in Delaware. The first defendant was dissolved prior to the commencement of proceedings and any SEPs it owned were transferred to IDPH. The InterDigital group owns a worldwide portfolio of SEPs for the ETSI 2G, 3G, 4G and 5G standards, including, through IDPH, the three particular UK patents whose validity has been challenged in these proceedings and to which we will return. They have been referred to throughout as the “Challenged Patents”. The fourth defendant, Avanci, is a company incorporated in Delaware and its principal place of business is in Texas. It administers a number of platforms for the licensing of patents owned by multiple parties who have chosen to make their patents available on a non-exclusive basis for licensing in this way. We have also received written interventions from the Computer & Communications Industry Association (“CCIA”), the International Center for Law & Economics (“ICLE”), ACT | The App Association (“ACT”), the Fair Standards Alliance (“FSA”) and the Motion Picture Association, Inc (“MPA”) in which they have set out their views on industry practice and the principal issues arising in the appeal. We are grateful to them all. One of the platforms operated by Avanci is for the licensing of 2G, 3G, 4G and 5G SEPs for use in connection with 5G-enabled vehicles (“the Avanci 5G Platform”). It was launched in August 2023 and is the successor to its 4G platform. Avanci is independent of the owners of these SEPs, does not itself own any of the SEPs covered by the Avanci 5G Platform and has not undertaken any FRAND obligation in respect of those SEPs. A considerable body of SEP owners have granted Avanci the non-exclusive right to license their SEPs through the Avanci 5G Platform. Each of these owners, referred to in these proceedings as a Licensor, appointed Avanci as its agent for this purpose on signing up to the Master Licence Management Agreement (“the MLMA”). Avanci’s relationship with each Licensor is governed by the MLMA, which is subject to New York law. Avanci’s authority is limited to offering a pre-determined Standard Patent Licensing Agreement (“SPLA”) subject only to certain pre-approved modifications (“PAMs”). Subject to the PAMs, Avanci cannot alter or revise the terms of the SPLA without the consent of the Licensors, which is deemed to have been given if Avanci secures the approval of a specified proportion of them. Importantly, Avanci only has authority to grant a licence to all the SEPs of all the Licensors on the Avanci 5G Platform. It has no authority to grant a licence of a subset of those SEPs such as those owned by only a single Licensor or a limited category of SEPs of all the Licensors. The Avanci 5G Platform has proved to be successful. The licence for the platform is global and the pricing and other terms were arrived at by Avanci after extensive discussions with potential Licensors and licensees, and with the objective of devising an optional alternative licence to the multiple bilateral licences which those operators in this area would otherwise have had to negotiate. Avanci sought to devise a licence which would be commercially attractive to the majority of SEP owners and the majority of vehicle manufacturers on a one-size-fits-all basis. Indeed, between the launch of the Avanci 5G Platform in August 2023 and the first instance hearing in July 2024, over 65 SEP owners had opted to join the Avanci 5G Platform as Licensors (including Ericsson, Fujitsu, Huawei, Intel, LG Electronics, Nokia, Qualcomm, Samsung, Sony, ZTE, and InterDigital) and over 31 vehicle manufacturers (including those in the Volkswagen Group, Hyundai, Kia, Mercedes-Benz, BMW, Volvo Cars, Polestar, Ford, General Motors and Yanmar) had opted to take licences through the Avanci 5G Platform. These Licensors were estimated to own around 170,000 SEPs declared to the 5G standard. The largest proportion of these SEPs had been granted in the United States (the “US”), and about 7% of them (about 11,900) were UK SEPs. Most Licensors, but by no means all of them, have at all relevant times owned some UK SEPs as part of their SEP portfolios. The Licensors of the Avanci 5G Platform vary over time. The MLMA provides that a Licensor may withdraw for any reason at any time on giving at least six months’ prior notice in writing of its intention to do so. While a member of the platform, each Licensor retains the ability to negotiate and agree bilateral licences of its own SEPs. For its part, Avanci does not agree under the MLMA to fulfil any Licensor’s FRAND obligation, and Avanci has no ability to bring infringement proceedings against any implementer that does not take a licence and that is because it neither owns nor is it an exclusive licensee of any SEPs. Avanci also contends and has asserted publicly that the terms of the SPLA are in fact fair, reasonable and non-discriminatory, that is to say, FRAND, but maintains that these terms are not required to be FRAND and that it is not under any contractual or other obligation to Tesla or any other company or entity to ensure that they are FRAND. Here it emphasises (i) that it is not itself a SEP owner and has given no undertaking to ETSI to grant licences on FRAND terms and (ii) that the SPLA is an alternative to bilateral licences available from SEP owners. Again, this is a matter to which we must return. Nevertheless, Avanci maintains and has made clear to this court that, if an English court is going to consider the “FRAND nature” of the SPLA in these proceedings, it would not want that process to take place without its involvement as a party. IDH is, and has at all relevant times been, a Licensor and is a party to the standard form MLMA. It is IDH, on behalf of the InterDigital group, which made the licensing declarations to ETSI (and undertook the FRAND obligation) in respect of the SEPs owned by the InterDigital group, including the Challenged Patents. In April 2020 and prior to the matters giving rise to these proceedings, InterDigital invited Tesla to enter into negotiations for a licence to use its portfolio of SEPs. The letter indicated that Tesla could alternatively seek a licence to use the Avanci 4G platform which would cover the 3G–4G SEP portfolios of all the Avanci 4G platform licensors, including InterDigital. Tesla chose to pursue that alternative course and Tesla and Avanci reached agreement under which Tesla became an Avanci 4G platform licensee. The time came when Tesla wished to launch 5G-enabled vehicles in the UK, its fourth largest market in the world. It appreciated that for this purpose it would need a licence under the UK SEPs declared for 5G, all of which would be subject to the obligation, enforceable by third parties such as Tesla, to license them on FRAND terms. 42. Tesla also took the view that a large proportion of the SEPs, including those owned by InterDigital, were available for license through the platform operated by Avanci as agent for the SEP owners. Avanci maintains that the rate for the Avanci 5G Platform was, and is, entirely fair and reasonable. But Tesla considers that the rate is too high and far exceeds a FRAND rate. Accordingly, in December 2023, prior to launching 5G-enabled vehicles in the UK, Tesla brought these proceedings in which it now seeks: declarations of invalidity and non-essentiality in respect of three UK patents—the Challenged Patents—owned by IDPH and disclosed as essential or potentially essential to the 5G standard; and consequential orders for the revocation of the Challenged Patents. These claims (“the Patent Claims”) are brought against IDPH and IDH only. (ii) declarations that it is contractually entitled to a FRAND licence to the 2G–5G SEPs of all Licensors on the Avanci 5G Platform including the Challenged Patents and other UK SEPs on the Avanci 5G Platform which are owned by InterDigital; a declaration that the FRAND licence to the Challenged Patents and other InterDigital 5G Platform SEPs extends to the entirety of the Avanci 5G Platform; and a declaration that the standard (or “rack rate”) royalty for the Avanci 5G Platform is not FRAND and should be lower; and a determination of what that lower rate should be. 43. InterDigital has expressed concern in evidence filed on its behalf that it has in some way been unfairly singled out “as a target” in these proceedings; and this concern also found expression in an oral submission made on its behalf at the hearing of the appeal before this court. We reject that submission for the following reasons. First, InterDigital holds a significant portfolio of patents which have been declared as essential to the ETSI 2G, 3G, 4G and 5G standards. Secondly, as we have mentioned, InterDigital informed Tesla by letter in April 2020 that it needed a licence under its SEP portfolio, including for its 5G SEPs, and gave details of what it described as an exemplary set of US and European patents. It pointed out that Tesla had the option of seeking a bilateral licence or an Avanci 4G platform licence. Thirdly, InterDigital has been an Avanci platform member since the beginning of the Avanci program, and it has in that way demonstrated a preparedness to entrust the licensing of its SEPs to Avanci. Finally, InterDigital has also shown a preparedness to assert its SEPs in litigation in the courts in this jurisdiction and to seek FRAND injunctions and FRAND determinations, and it has done so on a number of occasions in recent years. In all these circumstances we accept the submission made by counsel for Tesla that InterDigital has subjected its SEPs to the scrutiny of the courts in this jurisdiction, including for the setting of FRAND licensing terms. We also reject any suggestion that IDH and IDPH are not appropriate defendants, subject of course to the other objections to the claims which we address later in this judgment. The Licensing Claims were originally brought against IDH on its own account but also as representative of all the other Licensors on the Avanci 5G Platform under CPR r 19.8. The claim against IDH in a representative capacity failed before Fancourt J and on appeal before the Court of Appeal. It has not been pursued further. Tesla originally alleged in its particulars of claim that Avanci itself owed a contractual obligation to grant Tesla a 5G Platform licence on FRAND terms, but that was not pursued. Tesla then applied to amend its claim to allege that Avanci owed a non-contractual obligation to effect a good faith performance of the FRAND obligation of each Licensor. This application was refused by Fancourt J and once again has not been pursued. All of these failed claims are relied upon by InterDigital as evidence of the difficulty that Tesla has faced in attempting to formulate a coherent case and as justifying particularly careful scrutiny of the claims which remain. We accept that it is necessary to consider these claims with care, and particularly so in light of this history. As we have indicated, Tesla seeks an Avanci 5G Platform licence but maintains it has a fallback claim for a bilateral licence from InterDigital of its 5G SEPs. Fancourt J and, on appeal, the Court of Appeal, by a majority, held that no such fallback claim had been formulated by Tesla in its particulars of claim. Arnold LJ, dissenting, reasoned that Tesla’s claim embraced that alternative. This gives rise to another issue on this further appeal. In December 2023, Tesla purported to serve the Patent Claims and the Licensing Claims on IDPH at the address for service given for the Challenged Patents at the UKIPO in reliance on CPR r 63.14(2). So far as relevant, Tesla also applied for permission to serve the Patent Claims and the Licensing Claims out of the jurisdiction in reliance on Gateway 3 (IDH and Avanci) and Gateway 11 (all defendants, including IDPH so far as service under CPR r 63.14 might prove ineffective). Permission was granted by Mellor J on 7 December 2023, on paper, without notice. At the substantive hearing, Tesla did not press the Patent Claims against Avanci. In January 2024, InterDigital and Avanci filed separate acknowledgements of service indicating their intention to challenge jurisdiction. On 8 March 2024, they each filed CPR Pt 11 applications challenging the jurisdiction of the English courts over the Licensing Claims on the basis of lack of serious issue to be tried, unavailability of any relevant gateways and (for IDPH) CPR r 63.14(2), and the availability of the US, in particular the Delaware Court of Chancery, as an alternative and more appropriate forum. InterDigital also (i) challenged jurisdiction in respect of the Patent Claims, alleging they were an abuse of process and maintaining (ii) there had been a lack of full and frank disclosure as further reasons to set aside service of the Licensing Claims. In May 2024, InterDigital applied to strike out the claim against it, without prejudice to the jurisdiction challenge. All of these applications were heard by Fancourt J in May and June 2024. On 15 July 2024, and for reasons given in his judgment, [2024] EWHC 1815 (Pat); [2024] RPC 29, the judge made an order granting the Part 11 applications made by InterDigital and Avanci in respect of the Licensing Claims and declaring that he had no jurisdiction to try them or should not exercise any jurisdiction over them and setting aside service of them. Accordingly, he struck the Licensing Claims out. He also dismissed InterDigital’s Part 11 application and the strike out application in respect of the Patent Claims, but he stayed those claims by consent as a matter of case management. He dismissed an application by Tesla to amend its pleadings. Fancourt J explained that the Patent Claims were not an abuse of process and had been validly served on IDPH pursuant to CPR r 63.14(2). They were unlikely to be pursued, however. He also held that permission had been properly granted to serve the Patent Claims out of the jurisdiction on IDH pursuant to Gateway 3. As for the Licensing Claims, there was no serious issue to be tried against Avanci because Tesla had not claimed any legally enforceable right to be offered or granted a licence by Avanci itself. Further, there was also no serious issue to be tried on these claims against InterDigital (or IDPH alone) because it would not be fair and just to grant a declaration absent the participation of the other Licensors and Avanci, and because InterDigital could not properly defend them. So too, there was no serious issue to be tried on the Licensing Claims against IDH in a representative capacity because a representative claim would be unfair to other Licensors with different interests who could not be served with individual claims out of the jurisdiction; it would be unfair to InterDigital to impose on it the burden of defending the Licensing Claims; and there could easily be conflicts of interest between InterDigital and other Licensors. Fancourt J also held that, had there been a serious issue to be tried, the Licensing Claims could have been served on IDPH pursuant to CPR r 63.14(2); could have passed through Gateway 11 as against IDH; and could have passed through Gateway 3 (though not Gateway 11) as against Avanci. Further and as for forum, Tesla had failed to show that the Delaware Court of Chancery was not an available forum for the Licensing Claims, and had failed to show that England and Wales was clearly the more appropriate forum given the closer connection between the parties and Delaware. The Patent Claims were separable and might not be needed. There were serious failures of full and frank disclosure in the application for permission to serve out, but these would not have been sufficient to justify setting service aside. 58. The Court of Appeal (Phillips and Whipple LJJ; Arnold LJ dissenting) dismissed Tesla’s appeal: [2025] EWCA Civ 193; [2025] RPC 12. The majority held that, first, there was no serious issue to be tried on the Licensing Claims against InterDigital or Avanci, essentially because there was no real prospect of showing that the FRAND obligation required SEP owners to license their SEPs on a collective basis with other SEP owners whether on FRAND or any other terms. Absent any applicable contractual arrangement, courts do not have jurisdiction to determine the terms of a FRAND licence which includes foreign patents. Second, there was also no reasonable prospect of showing that the terms of a FRAND licence to all the SEPs on the Avanci 5G Platform could be properly and fairly undertaken without all the Licensors being joined or represented. Third, there had been no assumption by Avanci of the FRAND obligation. Fourth, the declarations sought would not be useful or legitimate, and finally, Tesla had not pleaded a case of entitlement to a bilateral licence. Arnold LJ would have allowed the appeal. In broad outline, he considered that there was a serious issue to be tried on the Licensing Claims against Avanci notwithstanding the absence of an enforceable right to a licence from Avanci itself. This would clarify whether Avanci’s claim that its licence was FRAND was sustainable, and whether the Licensors could legitimately rely on the availability of the Avanci 5G Platform licence as discharging their FRAND obligation. Further there was, in his view, a serious issue to be tried on the Licensing Claims against InterDigital, and it was not inevitable that the grant of declaratory relief would be precluded by any evidential or other difficulties arising from the absence of the other Avanci 5G Licensors. Arnold LJ also concluded that the Licensing Claims related to InterDigital’s UK SEPs on the Avanci 5G Platform, including the Challenged Patents, and had been properly served on IDPH in the jurisdiction pursuant to CPR r 63.14(2), and that IDH was a necessary and proper party to those proceedings; and that the Licensing Claims against IDH and Avanci each passed through Gateway 11. Finally, the Delaware Court of Chancery was not an available forum for the Licensing Claims, as properly characterised, such that the defendants’ forum non conveniens challenge failed. The principal issues which arise here are: Whether there is a serious issue to be tried as to whether the FRAND obligation applies to an offer to license jointly through a platform? (“Issue 1”) Whether there is a serious issue to be tried as to whether the FRAND licence under the UK SEPs, including the Challenged Patents, is a platform licence at a FRAND rate? (“Issue 2”) Whether Tesla has a real prospect of being granted the declarations it seeks against InterDigital and Avanci? (“Issue 3”) We will deal with them in turn but first we must explain the test to be applied and how Tesla has developed its case, and then we must describe the relevant commercial practices which provide the background against which the issues identified above fall to be considered. 64. There is no dispute as to the relevant test. On an application to serve a foreign defendant out of the jurisdiction, the claimant has to satisfy three requirements. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits. The current practice is that this is the same test as for resisting summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more of the classes of case in which permission to serve out may be given. Here a “good arguable case” connotes that one side has a much better argument than the other. Third, the claimant must satisfy the court that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction: see Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804 at para 71; Tulip Trading Ltd v Bitcoin Association for BSV [2023] EWCA Civ 83;[2023] 4 WLR 16 at paras 12–15. Accordingly, whether we are assessing the strike out application or the application to set aside service out of the jurisdiction, we must consider, as a starting point, whether the claim, as formulated, has a real as opposed to a fanciful prospect of success. We are concerned at this stage with the FRAND obligation accepted and undertaken by IDH on behalf of IDPH and all other companies in the InterDigital group of companies in relation to their UK SEPs, including the Challenged Patents, on the Avanci 5G Platform. Save where from the context otherwise appears, we will refer to these UK SEPs, including the Challenged Patents, as the UK SEPs. As we have seen, the UK SEPs give InterDigital the right to prevent the sale of any products in the UK which would infringe them. That right is subject to the obligation, embodied in the FRAND obligation, enforceable by third parties, to offer licences to use the inventions described and claimed in the UK SEPs on FRAND terms. If an implementer such as Tesla undertakes to take the licence on those FRAND terms, the UK SEPs cannot be asserted against it. Tesla now seeks by these proceedings to find out what it needs to do to avoid infringement, and what the terms of a FRAND licence of the UK SEPs are. Mr Alexander KC, counsel for Tesla, has developed its case in the following way. He submits that the FRAND obligation does not cease to apply if a SEP owner chooses to license that patent through a platform or pool, and further, InterDigital having placed the UK SEPs on the Avanci 5G Platform, the licence of those patents must itself be a global platform licence. Secondly, it is also arguable that the only FRAND licence of the UK SEPs, including the Challenged Patents, is a platform licence at a FRAND rate. Tesla’s case has a further aspect. It contends that, even if the Avanci 5G Platform licence is not required to be FRAND, there is nonetheless a useful purpose in determining if it is FRAND, and that is so for Tesla, InterDigital and Avanci and indeed, other third parties. Implementers such as Tesla have an interest in knowing if they are paying the right sum, and InterDigital and other actual and potential Licensors have an interest in knowing whether, if they place their SEPs on the Avanci 5G Platform, they will satisfy their undertaking to ETSI to offer licences of their SEPs on FRAND terms. It is also Tesla’s case that in circumstances such as these, the court has jurisdiction to grant appropriate declaratory relief. Here Mr Alexander recognises that Avanci does not itself owe any contractual obligation to ETSI (and is not itself subject to any separate FRAND obligation) but submits this is not determinative. The obligation is undertaken by InterDigital and is enforceable by Tesla but the real issue lies between InterDigital’s agent, Avanci, and Tesla. Accordingly, all relevant parties are (or, in the case of Avanci, will be) before the court. We consider there is considerable merit in this part of Tesla’s case. The starting point is the FRAND obligation, undertaken by every patent owner, as a condition of having the technology described in the patent adopted in the standard, to make licences available on FRAND terms, and its important role in preventing “hold up”. This is a fundamental objective of the IPR Policy and an essential part of the background against which it must be construed. Further, and as we have explained, commercial practice is highly relevant to the interpretation of the IPR Policy and an assessment of the terms of a FRAND licence, it being a correct inference that in framing the IPR Policy, ETSI intended that the parties and the courts should look to, and draw on, commercial practice in the real world: UPSC, para 62. In the context of the cases then before the court, it was therefore appropriate to look at the commercial practice of agreeing to take a licence of a portfolio of patents, including disputed or potentially disputed foreign patents, regardless of whether or not each patent was valid and infringed by the use of the technology described in the standard, and to construe the IPR Policy as promoting that behaviour: UPSC, para 63. It is significant that, adopting this approach and in light of the evidence before them, lower courts in this jurisdiction have now accepted at least as raising a serious issue to be tried that the FRAND terms for a licence to a single SEP may extend to a global cross-licence of both parties’ SEPs: Lenovo Group Ltd v Telefonaktiebolaget LM Ericsson:[2025] EWCA Civ 182; [2025] RPC 11, paras 42–44, per Arnold LJ; a global licence covering SEPs and non-essential patents, that is to say patents which are not themselves subject to a FRAND commitment: Lenovo Group Ltd v InterDigital Technology Corpn: [2024] EWHC 1036 (Pat); [2024] RPC 23, paras 19–45, per Richards J; and even a global pool of patents having multiple owners: Mitsubishi Electric Corpn v OnePlus Technology (Shenzhen) Co Ltd [2021] EWHC 1541 (Pat), paras 26–33 per Mellor J. This is a jurisdiction which is developing to reflect the practice of the industries and markets with which it is concerned. 73. There are in our view several striking aspects of the commercial practices in the markets concerned with wireless communications technology for the motor industry which are relevant to the issues now before this court. The first is the increasing use by SEP owners and implementers of pools and platforms as a way of offering and securing the licences of the many thousands of SEPs needed to conduct a business which meets any particular standard, as demonstrated by the success of the Avanci 5G Platform to which we have referred. Indeed, Avanci itself maintains that Licensors on the Avanci 5G Platform now include almost all the major 5G SEP owners worldwide, and licensees include the most well-known car manufacturers selling 5G-enabled vehicles. Dr Brian Nicholson KC, counsel for Avanci, informed this court at the hearing of the appeal that today the Avanci 5G Platform brings together 89 SEP owners licensing 86 brands around the world, amounting to an equivalent of in excess of 7,500 bilateral licences. Further, the Avanci 5G Platform is by no means an unusual case in terms of its general structure, and the submissions of the interveners demonstrate that successful platforms or pools have been adopted across a range of other technical fields. So, for example, the MPA maintains that SEP pools are and have been an important (and, in some cases, the predominant) means through which its members access fair licences to the SEPs needed to operate and access the standards relating to connectivity and the transmission of data, and standards enabling the encoding and decoding of audiovisual data. Some of these pools now account for a very significant proportion of the licensing of the SEPs needed to operate according to these standards. Secondly, Avanci itself proclaims that the Avanci 5G Platform is FRAND. It sought confirmation from the US Department of Justice (“DoJ”) that its then proposed Avanci 5G Platform was not anti-competitive, and the DoJ responded in a business review letter dated 28 July 2020 that the proposed platform was “unlikely to harm competition” and that the DoJ was “not presently inclined to initiate an antitrust enforcement action”. The DoJ also recorded in that letter that Avanci represented its 4G platform rates to be FRAND and intended its 5G rates also to be FRAND; and it continued: “Each standards-essential patent holder will have to decide whether the Avanci Platform comports with its own FRAND commitments.” Indeed, Dr Nicholson also made clear in his submissions to this court that Avanci considers it has done what ETSI expected in that it has assisted and enabled SEP owners and implementers to come to a commercial arrangement which enables those implementers to access the standards on FRAND terms. Nevertheless, he continued, Avanci’s position was and remains that the platform has nothing to do with the ETSI undertakings of the individual SEP owners or their FRAND obligation, and that it is providing a free market alternative to bilateral licences. A third aspect of the commercial practice concerns reliance placed by a number of Avanci Licensors on the availability of the Avanci 4G platform licence as constituting an offer of a licence of their SEPs on FRAND terms which meets their FRAND obligation. Indeed, Tesla contends and provided evidence that a number of SEP owners who sued them for infringement in various jurisdictions prior to Tesla taking the Avanci 4G platform licence, relied on the availability of that licence as meeting their FRAND obligation. The final matter is the practical impossibility of negotiating the full range of bilateral licences necessary to carry on a business in accordance with the relevant standards, here specifically the ETSI 5G standard. It would also be immensely wasteful in terms of time and costs. Indeed, as Dr Nicholson also submitted, this problem is exacerbated because many SEP owners avoid standard form licences and they try to get the best deal they can with each implementer. The effect of all of this, and associated litigation related to attempts to license bilaterally, has created what Dr Nicholson described to the Court of Appeal and to this court as a “licensing debacle”. Indeed, some SEP owners are not in practice prepared to engage in bilateral negotiations at all. Issue 1: Is there a serious issue to be tried as to whether the FRAND obligation applies to an offer to license jointly through a platform? Against this background we must now consider, first, whether a SEP owner remains bound by the FRAND obligation so far as it may choose to join a pool or platform, such as the Avanci 5G Platform, or whether, on joining that pool or platform, its FRAND obligation falls away. Here Tesla’s case has been developed in two ways. In its most extreme form, Tesla contends that a SEP owner is required by the FRAND obligation and the undertaking it has given to ensure that all offers of a licence under the SEP are on FRAND terms, and that this obligation applies as much to offers of a licence through a platform such as the Avanci 5G Platform as it does to offers of a bilateral licence. The second and less extreme form of Tesla’s case is that a SEP owner remains bound by the FRAND obligation and the undertaking it has given to ETSI whether it chooses to license bilaterally or through a pool or platform, and that in so far as that SEP owner chooses to license through a pool or platform, the circumstances may be such that only the pool or platform licence (as the case may be) is capable of being FRAND. Underpinning both of these ways of putting its case, there is a common issue, namely whether, as Tesla contends, a SEP owner remains bound by the FRAND obligation if it chooses to join a pool or platform, or whether, as InterDigital and Avanci contend and the majority of the Court of Appeal accepted, the FRAND obligation has no bearing on pool or platform licences even though an operator such as Avanci may have advertised that platform licence as being FRAND, and individual Licensors may have relied on the pool or platform licence as satisfying their FRAND obligation. An offer of a pool or platform licence was, in the judgment of the majority of the Court of Appeal, a voluntary commercial offer to which the FRAND obligation did not apply at all. In our view Tesla has established a serious issue to be tried on this question for the following reasons. First, as a starting point, the FRAND obligation is undertaken by each patent owner as a condition of having the patent and the technology it describes adopted as part of the relevant standard. Second, we are unable to discern anything in the wording of the FRAND obligation or the wider IPR Policy which provides any basis for concluding that the FRAND obligation ceases to apply if two or more owners choose to offer a licence of their patents through or using a licensing agent appointed for that purpose. Indeed, the policy underpinning the FRAND obligation, namely that the SEP owners must be prepared to offer and grant irrevocable licences under their IPRs on FRAND terms and in this way prevent “hold up” applies with as much if not more force to offers to license IPRs made jointly. Third, the policy justification for construing the FRAND obligation as having application where numerous SEP owners controlling, as it was described to us, over 90% of the entire global stack of 2G–5G cellular SEPs have come together to offer licensing terms to the market is even stronger. Indeed, we see considerable merit in the argument advanced on behalf of Tesla that the utility of the FRAND obligation would be severely compromised were it to cease to apply in circumstances such as these. 86. Fourth, it is in our view significant that the FRAND obligation was drafted in conjunction with (and with the benefit of the close involvement of) the European Commission so reflecting the importance of the obligation from the point of view of competition policy, as Birss J recognised in his judgment at first instance in Unwired Planet International Ltd v Huawei Technologies Co Ltd [2017] EWHC 2988 (Pat); [2017] RPC 19, para 89. It is entirely consistent with this background that the Commission Guidelines on the application of article 101 of the Treaty on the Functioning of the European Union (the “TFEU”) to technology transfer agreements (2014/C 89/03) make clear, at para 261(e), the creation and operation of a technology pool, including licensing out, generally falls outside article 101(1) of the TFEU, irrespective of the market position of the parties, if, among other things, the pooled technologies are licensed out to all potential licensees on FRAND terms. Very similar policy considerations appear to have underpinned the approach of the US DoJ in considering the application of US anti-trust law to SEP platforms. Far from there being any understanding that FRAND considerations would have no application where SEP owners choose to license their SEP portfolios through a pool or platform, it is evident that the application of FRAND principles to the development of an appropriate licensing policy has been fundamental to their safe harbour protection in terms of competition law. Fifth, it therefore comes as no surprise that a judge of the Patents Court has now held, based on evidence before the court, including evidence of developing jurisprudence of the German courts, that in the real world, FRAND licences are now being agreed covering pools of patents, not least because of the obvious efficiencies and cost savings involved. Further and more significantly for present purposes, for an implementer now to refuse a pool licence (and it may be inferred a platform licence) but to insist only on a bilateral licence may require justification in a case where the pool comprises patents claimed to be essential to a particular standard which has been implemented by the products in question: see the Mitsubishi case (supra), para 32. Nevertheless, the Court of Appeal, by a majority, came to the contrary conclusion. The reasoning of the majority involved two propositions, namely that each SEP owner has, by its contractual arrangements with ETSI, undertaken to grant an irrevocable licence to its own essential IPR to an implementer and to do so on FRAND terms. But what it has not agreed to do, on any sensible interpretation of the contractual arrangements with ETSI, is to license its SEPs on a collective basis with other SEP owners whether on FRAND or other terms. Secondly, the fact that some SEP owners may have chosen voluntarily to place their SEPs on the Avanci platform does not change the analysis for, in so doing, they have not extended the scope of their undertaking to ETSI; nor have they entered into any other binding arrangement to license their SEPs on a collective basis. In our judgment, this reasoning does not address the case which Avanci and InterDigital have to meet. It is no part of Tesla’s case that any SEP owner is obliged by its FRAND obligation or its contractual arrangements with ETSI to engage with other SEP owners in collective licensing through a pool or platform; nor does Tesla contend that the scope of the FRAND obligation has in some way been extended to encompass collective licensing if any SEP owner joins a pool or platform. It is Tesla’s case that licensing through pools and platforms is a well-established way of dealing with the complexities and impracticalities of bilateral licensing, and that joining a pool or platform does not release the SEP owner from the FRAND obligation it has already undertaken. This is a very different proposition, and it is not one to which there is any persuasive objection. The majority in the Court of Appeal considered the position was still clearer in the case of Avanci which has given no undertakings and has no authority to negotiate let alone agree FRAND terms on behalf of the owners for the collective licensing of their SEPs. Again, in our judgment, this reasoning does not adequately address this aspect of Tesla’s case. It does not contend that Avanci is subject to any self-standing FRAND obligation to ETSI to offer 5G Platform licences to implementers on FRAND or other terms. Tesla’s case rests on Avanci’s acknowledged position as agent for the Licensors using the platform, each of which is subject to the FRAND obligation arising from the undertaking it has given. We consider that it is open to any Licensor on the Avanci 5G Platform to seek to rely on the availability of platform licences to satisfy its FRAND obligation. Indeed, Tesla alleges that, in the context of infringement litigation in relation to SEPs on the Avanci 4G Platform, a number of licensors (though not InterDigital) identified the offer of an Avanci 4G Platform licence as satisfying their obligation to licence their SEPs on FRAND terms, and they no doubt relied for that purpose on Avanci’s claim that its 4G Platform licence is FRAND, even though Avanci claims it is under no contractual obligation to ensure that is so. Issue 2: Is there a serious issue to be tried as to whether the FRAND licence under the UK SEPs—including the Challenged Patents—is a platform licence at a FRAND rate? We turn now to the second question, namely whether, on the assumption that a SEP owner remains bound by the FRAND obligation in respect of any SEPs it has chosen to license through the Avanci 5G Platform, there is a serious issue to be tried as to whether the FRAND licence of those SEPs is an Avanci 5G Platform licence at a FRAND rate. In considering this question we should say at the outset that we have not found Tesla’s broader case (summarised at para 80) persuasive. The FRAND obligation is to offer licences of the SEPs to implementers on FRAND terms. As this court explained in UPSC, paras 113–114, the SEP owner must ensure that licence terms are available which are fair, reasonable and non-discriminatory, reading that phrase as a whole. But, in our view, this does not preclude a further and separate negotiation which may result in what may be perceived to be or include a licence on commercial but non-FRAND terms. Nor does the obligation require all offers of a licence to be on FRAND terms irrespective of the circumstances in which they are made. Reverting now to the circumstances of this appeal, an important question, therefore, is whether Tesla has a real prospect of establishing that the only FRAND licence of InterDigital’s UK SEPs on the Avanci 5G Platform, including the Challenged Patents, is a global platform licence, that is to say, a licence extending to the whole Avanci 5G Platform at a FRAND rate. We have come to the conclusion that Tesla does indeed have a real prospect of establishing this case at trial, for the following reasons. First, Tesla contends that in reality many if not most licensors in the Avanci 5G Platform rely on the availability of platform licences as meeting their FRAND obligation. Second, as we have sought to explain, the question of what is or is not FRAND is to be informed by commercial reality and if, as a matter of commercial reality, it is simply not practicable for potential licensees to seek to negotiate bilateral licences with all the platform licensors then this is a powerful factor in support of the conclusion that only a platform licence can be FRAND. Similarly, if, in reality, most Avanci Licensors rely on the availability of a platform licence as fulfilling their obligations, this is another powerful factor supporting that conclusion. In the Court of Appeal, Arnold LJ referred (at para 95) to both of these contentions, noted they were disputed by Avanci and InterDigital but considered Tesla had a real prospect of establishing them. They were supported by Avanci’s own case concerning the “licensing debacle” associated with bilateral licensing; and that the Avanci 5G Platform has been very successful, providing an effective answer to the impracticality of negotiating the 7,500 bilateral licences that might otherwise have been required. So too, Tesla’s evidence suggested that some platform Licensors (not InterDigital) were relying on the availability of platform licences as meeting their FRAND obligation in the context of the Avanci 4G platform. Nevertheless, InterDigital and Avanci maintain that the majority in the Court of Appeal arrived at the correct conclusion for a series of further reasons which it is convenient to address together. They contend first, that the FRAND obligation only requires a declarant to be prepared to grant licences to its own and its affiliates’ SEPs on FRAND terms, not to license the patents of others, which a SEP owner cannot do. Second, InterDigital contends that it has always made clear that it is willing to license bilaterally on FRAND terms and that it does not rely on the Avanci 5G Platform licence as discharging its FRAND obligation. In this connection, InterDigital and Avanci emphasise that the Avanci 5G Platform is and has always been a commercial alternative to bilateral licensing and nothing more. Third, InterDigital and Avanci contend that Avanci Licensors are entitled to leave the Avanci 5G Platform at any time and consequently it must always be permissible for these owners to satisfy their FRAND obligation by offering bilateral licences of their SEPs. Finally, it is emphasised by Avanci that the FRAND obligation is not imposed on pool or platform administrators directly; nor have SEP owners undertaken to ensure that any collective licence offers are FRAND. 103. Once again, we recognise the force of these further submissions, but we are not persuaded they answer the case which Tesla advances. We accept that the FRAND obligation does not require a SEP owner to offer to license the patents of others; nor has Avanci given any undertaking to ETSI further to the undertakings given by its principals, the SEP owner Licensors using the Avanci 5G Platform. We also recognise the freedom of any SEP owner to leave the Avanci 5G Platform on giving appropriate notice. None of these points undermines the essential case advanced by Tesla, however, which is that for any SEP owner which is a member of the Avanci 5G Platform, there is a serious issue to be tried as to whether the FRAND licence of the SEPs of that owner is a platform licence on FRAND terms, rather than a bilateral licence of the SEPs of that Licensor and, separately, bilateral licences of the SEPs of each of the other platform Licensors necessary to operate according to the standard. The assessment of what is FRAND is to be informed by commercial practice in the real world, and it is Tesla’s case that in the real world the Avanci 5G Licensors rely on their platform licences to discharge their FRAND obligation. Avanci also contended in its written case that the possibility that the FRAND obligation should apply to platform and pool licences was raised in an early draft of the IPR Policy but rejected, and that this is an important aspect of the historical background which bears on its proper interpretation. We accept that a clear indication that ETSI considered but rejected the possibility of extending the IPR Policy to SEP platforms or pools would be relevant to interpretation of the IPR Policy. This court took such a matter into account in rejecting an interpretation that would have imported a hard-edged non-discrimination requirement: UPSC, para 116. The difficulty facing Avanci, however, is that the particular draft clause to which we were referred is not directed to this issue; nor are the objections raised by the innovators and implementers to the draft in which it appears. In the end, once these difficulties were pointed out, we understood Avanci no longer to pursue this argument, and rightly so. In these circumstances Tesla seeks, as against InterDigital and Avanci, the declarations to which we have referred. This gives rise to the third principal issue on this appeal, namely whether, in the circumstances we have described, Tesla has a real prospect of being granted the declarations it seeks against InterDigital and Avanci, and whether the judge and the Court of Appeal fell into error in failing so to decide. As we have indicated, Tesla seeks, by these proactive proceedings to enforce the FRAND obligation of InterDigital and secure a decision of the court as to whether the Avanci 5G Platform licence rate is FRAND and, if not, what the appropriate FRAND licence rate and other terms are. In this way Tesla, as an implementer, seeks a decision as to what it must do to secure a fair licence and preclude a finding of infringement. This in turn gives rise to two separate issues of principle: first, whether it is a requirement of the grant of declaratory relief concerning a legal right that the defendant is either the owner of or subject to the legal right relied upon. The second is whether considerations of procedural fairness mean that there is no real prospect of the court granting the declarations Tesla seeks even if it would otherwise be appropriate to do so. We propose to consider these issues by addressing first, the power to make a declaration; second, the use of declarations in FRAND proceedings; third, the case for a declaration against InterDigital; fourth, the case for a declaration against Avanci; fifth, whether Tesla has a legitimate interest and purpose in seeking these declarations; and finally, fairness. For very many years the court has had power to make a declaration as an aspect of its inherent jurisdiction. The present statutory foundation is section 19 of the Senior Courts Act 1981 and CPR r 40.20 which make clear that the court may make binding declarations whether or not any other remedy is claimed. The scope of the rule is broad and, consistently with this, it has long been established that a claimant does not need to have a subsisting cause of action against a defendant before the court will grant a declaration: Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536. More recently, the scope of the power to make a declaration was explored by the Court of Appeal in Messier-Dowty Ltd v Sabena SA [2000] 1 WLR 2040. There, Lord Woolf MR, with whom Hale LJ and Lord Mustill agreed, explained, at para 41, that whether in any given case it is appropriate to exercise the power is a matter of discretion. The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. But where a negative declaration would help to ensure that the aims of justice are achieved, the court should not be reluctant to grant it. Lord Woolf continued that the development of the use of declaratory relief in relation to commercial disputes should not be constrained by artificial limits wrongly related to jurisdiction. It should instead be kept in proper bounds by the exercise of the court’s discretion. In Financial Services Authority v Rourke (trading as J E Rourke & Co) [2001] EWHC 704 (Ch); [2002] CP Rep 14, Neuberger J helpfully elaborated that, so far as the CPR are concerned, the power to make a declaration appears to be unfettered; and that, as between the parties, it may be appropriate to grant a declaration as to their rights, or as to the existence of facts or as to principles of law, where those rights, facts or principles have been established to the court’s satisfaction. But the court should not grant a declaration merely because the rights, facts or principles have been established and one party asks for a declaration to that effect. The court must consider whether, in all the circumstances, it is appropriate to make the order. Here the court should take into account justice to the claimant, justice to the defendants, whether the declaration would serve a useful purpose and whether there are any special reasons why the court should grant the declaration or why it should not. 114. The Court of Appeal gave further consideration of the scope of the power a few years later in Feetum v Levy [2005] EWCA Civ 1601; [2006] Ch 585. The case concerned a claim by members of a limited liability partnership (“LLP”) for a declaration that no event causing the insolvency of the LLP had occurred and so the appointment of administrative receivers was invalid. The claimants were concerned to know whether they were required to comply with requests from those receivers and hence were directly affected by the appointment. Lewison J held that the claimants had standing to make the application and granted the declaration. An appeal to the Court of Appeal was dismissed. Jonathan Parker LJ, with whom Ward LJ and Sir Peter Gibson agreed, explained that relief should not be refused on the ground that the claimants were seeking relief as to the effect of a contract to which they were not parties. The claimants, as designated members, were not merely directly interested in the issue as to the validity of the appointment, but directly affected by it. 115. Next, we must refer to Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387; [2010] 1 WLR 318. In this case, Rolls-Royce and Unite entered into two legally unenforceable collective service agreements which included length of service in the matrix of selection criteria for redundancy. The issue was whether, following the coming into force of regulations transposing a European Directive into domestic law, it was unlawful to use the length of service criterion because, so it was said, it discriminated on the grounds of age and was not a proportionate means of achieving a legitimate aim. With the agreement of the union, Rolls-Royce brought a claim against it asking the court to decide this question. The judge, while expressing the view that the issue was more appropriate for determination in employment tribunal proceedings, held that the length of service criterion was not unlawful. On appeal, the Court of Appeal considered as a preliminary question, whether it should entertain the appeal at all. Wall LJ, with whom Arden LJ agreed, referred, at para 19, to the statement of Viscount Maugham in London Passenger Transport Board v Moscrop [1942] AC 332, 345: “the courts have always recognised that persons interested are or may be indirectly prejudiced by a declaration made by the court in their absence, and that, except in very special circumstances, all persons interested should be made parties, whether by representation orders or otherwise, before a declaration by its terms affecting their rights is made.” A little later, Wall LJ explained (at para 52) that his anxiety about hearing the appeal had been driven by his concern that its outcome could directly affect a large number of people (those made redundant in the future by the company) without any of those people having any say in it. Notwithstanding those concerns, the court, by a majority, proceeded to hear and decide the appeal. Aikens LJ, dissenting, recognised that the law had developed since the statement of principle of Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435, 501, where Lord Diplock stated: “for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event.” 118. Aikens LJ then summarised the principles he derived from the cases in this way (at para 120): “For the purposes of the present case, I think that the principles in the cases can be summarised as follows. There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question. The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue; … The court will be prepared to give declaratory relief in respect of a ‘friendly action’ or where there is an ‘academic question’ if all parties so wish, even on ‘private law’ issues. This may particularly be so if it is a ‘test case’, or if it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question it must consider the other options of resolving this issue.” Aikens LJ concluded, in light of these principles, and particularly (6), it was wrong for the court to do anything more than answer two narrow questions of statutory construction. As we will explain, Aikens LJ’s concerns were entirely justified, as this court has recently made clear. 120. It is convenient to refer next, however, to the decision of the Court of Appeal in Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270; [2011] PTSR 1654. This concerned the effect of a planning obligation made by deed pursuant to section 106 of the Town and Country Planning Act 1990 and in particular the extent of a right of way which Tameside, as successor to Hillingdon London Borough Council, was obliged to grant and whether, as Milebush contended, it covered an emergency exit. The Court of Appeal held that the interpretation of the obligation contended for by Tameside was largely correct and, by a majority (Mummery LJ, with whom Jackson LJ agreed), that the judge had been entitled to hold that it was not appropriate to exercise the discretion to grant the declaratory relief sought. It is notable that Mummery LJ recognised, at para 44, that a declaration may be granted in private law proceedings about the disputed construction of a document affecting the claimant, even though the claimant was not a party to it. 121. Moore-Bick LJ dissented on this issue, but expressed general agreement with Aikens LJ’s summary of the relevant principles in the Rolls-Royce case save that point (2) was, in his view, expressed too narrowly. He concluded, at para 88: “In my view the authorities show that the jurisprudence has now developed to the point at which it is recognised that the court may in an appropriate case grant declaratory relief even though the rights or obligations which are the subject of the declaration are not vested in either party to the proceedings. … I can see no reason in principle why the nature of the underlying obligation should be critical, although there may well be other reasons why in the particular case a declaration should not be granted. The most important consideration is likely to be whether the parties have a legitimate interest in obtaining the relief sought, whether to grant relief by way of declaration would serve any practical purpose and whether to do so would prejudice the interests of parties who are not before the court.” Most recently, in Tyne and Wear Passenger Transport Executive (trading as Nexus) v National Union of Rail, Maritime and Transport Workers [2024] UKSC 37; [2025] AC 1222, this court considered the correctness of the decision of the Court of Appeal in the Rolls-Royce case in the context of a claim by an employer, Nexus, for rectification of a collective agreement made between it and two unions which, though not intended to have legal effect in itself, had been incorporated into the employees’ contracts of employment. The effect of rectification would be to alter the rights of the affected employees. Lord Leggatt and Lady Simler, in a judgment with which Lord Lloyd-Jones, Lord Sales and Lord Burrows agreed, explained that there was no legal dogma preventing the court from making an order for rectification which would have the effect of altering the contractual rights of the affected employees. There were, however, two flaws in the course Nexus had adopted: first, it had no cause of action against the unions and, although the effect of rectification would be the reformation of the employees’ individual contracts of employment, this demonstrated the second flaw. Nexus was asking the court to make an order which would alter the legal rights of these employees without giving any of them the opportunity to adduce evidence or make submissions, and this was contrary to the most basic principle of procedural justice. Although not cited in argument, after the hearing, this court invited and heard submissions on the decision of the Court of Appeal in the Rolls-Royce case. In the light of those submissions, this court emphasised first, that those most affected by the decision, that is to say the employees who might be made redundant, were not before the court. It was no answer to say that the employees would be entitled to raise the issue of unlawful discrimination in proceedings before an employment tribunal. Secondly, the only potential dispute about legal rights was a dispute about whether, in terminating the employment contracts of individual employees on grounds of redundancy, it would be lawful for Rolls-Royce to apply the length of service criterion provided for in the collective agreements. The union had no legal interest in the determination of that dispute. It followed that the procedure adopted by the parties and acquiesced in by the courts in the Rolls-Royce case was illegitimate and ought not to be followed. 125. These are all cases in which the court has considered the scope of the power to grant a declaration, and the circumstances in which it is appropriate to exercise that power. We do not think it helpful to seek to define in a series of propositions the principles which should guide the court in deciding whether or not to grant a declaration for ultimately it is a matter of discretion, and so responsive to the circumstances of any particular case. The exercise of the power should not be unduly constrained. Nevertheless, the court will refuse to make a declaration where it will serve no useful purpose; but where a declaration would serve a useful purpose and help to ensure the aims of justice are achieved then the court should not be reluctant to exercise its power to make it. This flexibility has been demonstrated in the preparedness to grant declaratory relief even though the rights or obligations the subject of the declaration are not vested in any party to the proceedings, provided the parties to the proceedings have a legitimate interest in their outcome and the declaration would serve a useful purpose and further the interests of justice. In all cases, a most important consideration is likely to be whether the declaration would unfairly prejudice the interests of persons not before the court. In general, the proper parties to proceedings are those whose legal rights will be adjudicated upon by the court. 126. It is now well understood that the power of the court to make declarations has proved of very great utility in resolving disputes between SEP owners and implementers seeking to make products or carry out processes according to a standard, and in particular in resolving disputes as to what amounts to the performance of the FRAND obligation required by ETSI, whether the terms of a proposed licence are FRAND and, so far as necessary and appropriate, what terms would be FRAND. The power has been harnessed in cases brought by SEP owners to enforce their patents against implementers, and in cases brought by implementers seeking clarity as to what they must pay to secure a licence and preclude a finding of infringement and any possibility of being locked out of a market by the grant of injunctive relief. The courts enforce their decisions against SEP owners by withholding their right to an injunction if they do not offer a FRAND licence; and against implementers by granting an injunction if they decline to take a FRAND licence. In the context of ETSI, the IPR Policy envisages that courts may determine whether or not the terms of a proposed licence are FRAND when asked to rule on the contractual obligation of a SEP owner which has given the irrevocable undertaking and so undertaken the FRAND obligation required under the IPR Policy. Moreover, in proceedings concerning the infringement of one or more UK SEPs, it is the IPR Policy and the contractual arrangement which it embodies which enables the court to decide what the terms of a FRAND licence of those patents are, and whether it extends to a global licence of an international portfolio of SEPs of which the UK SEPs form part. Indeed, the decision of this court in UPSC confirms the jurisdiction of the English courts to decide FRAND disputes on a worldwide basis at the request of a SEP owner even if the UK SEPs constitute only a small proportion of its portfolio. That remains the position. 128. The contractual obligation, which we have termed the FRAND obligation, enforceable by third party implementers, is the foundation for a claim for a FRAND determination in proceedings concerning ETSI standards in this jurisdiction. The decision of the Court of Appeal in Vestel Elektronik Sanayi Ve Ticaret AS v Access Advance LLC [2021] EWCA Civ 440, [2021] 4 WLR 60 (“Vestel”)illustrates the importance of that obligation. The case concerned a standard set by the International Telecommunication Union for a form of high definition television technology. Many patents had been declared as essential and the relevant rules required that the patentee owners had to be prepared to licence these patents (SEPs) on FRAND terms. The first defendant (Access Advance), administered a pool of these patents, including one owned by the second defendant. In these proceedings, the claimant (Vestel), an implementer, sought a declaration of what the FRAND terms would be for a licence of the UK SEPs in the pool on the basis that, among other things, the royalty rate sought by Access Advance was too high. Before the Court of Appeal, the claim was brought under the inherent jurisdiction on the basis that it would serve a useful purpose, that purpose being that it would establish the terms of the licence Vestel would have to take to avoid infringing the UK SEPs by carrying out its activities here. The Court of Appeal accepted (at para 71) that if Vestel had a legally enforceable right to be offered a FRAND licence, the subject matter of the claim would be the UK SEPs, and the claim would be concerned with the licence terms available to license those rights. The insurmountable difficulty facing Vestel, however, was that it had never asserted a right to such a licence. The attempt to invoke the court’s jurisdiction to make a declaration had no reasonable prospect of success because it was not based on the existence or non-existence of a legal right. 130. In all these circumstances Tesla contends that it has a real prospect of securing the declarations forming the heart of the Licensing Claims and to which we have referred. As we have explained, Tesla seeks declarations as to the terms of the FRAND licence to which it is entitled in respect of InterDigital’s UK SEPs on the Avanci 5G Platform, including the Challenged Patents. This is a real and present dispute, founded on the contractual obligation embodied in the IPR Policy, which Tesla contends confers on it, as an implementer, a right to a FRAND licence of these UK SEPs. Further, it is Tesla’s case, which we are satisfied it has a real prospect of making good, that the FRAND licence to which it is entitled is the Avanci 5G Platform licence on FRAND terms. The importance of this claim and the relief sought by Tesla is demonstrated by InterDigital’s conduct in repeatedly asserting its patent rights in this jurisdiction, writing to Tesla prior to Tesla entering into an Avanci 4G licence, informing it that it needed a licence under its SEP portfolio, including its 5G SEPs, and effectively giving Tesla the option of a bilateral licence or an Avanci Platform licence. Moreover, as noted at para 43 above, there is evidence before the court that InterDigital was an early participant in the Avanci program and willing to entrust its SEPs to Avanci from the outset. In these circumstances and subject to the requirement of fairness, to which we will come, we are firmly of the view that Tesla does indeed have a real prospect of securing the declaratory relief it seeks in the Licensing Claims against InterDigital. What is more, Avanci has made clear that it would wish to be joined in any ongoing Licensing Claims against InterDigital. Despite the indication given by Avanci to which we have referred, that it would wish to be party to any proceedings in this jurisdiction concerning the Avanci 5G Platform, we think it appropriate to consider the claims against it, as did the judge and the Court of Appeal. Avanci is and has throughout acted as licensing agent for the SEP owners using its platforms, including the Avanci 5G Platform. It is entirely true to say that it does not itself own SEPs and is not itself subject to any FRAND obligation. On the other hand, all the individual SEP owners are subject to the FRAND obligation, and Avanci, as their agent, is responsible for licensing these SEPs through the Avanci 5G Platform. In our judgment, subject to the requirement of fairness, Tesla does have a real prospect of success in its Licensing Claims against Avanci, and that is so for the following reasons. First, the claim concerns a legal right, namely the right claimed by Tesla to a FRAND licence pursuant to the FRAND obligation owed to all implementers by all the SEP owners participating in the Avanci 5G Platform. This case is once again very different from Vestel where, for whatever reason (see para 129), no right to a FRAND licence had ever been asserted. Secondly, and as we have seen, the court may make a declaration even though no other relief is claimed. Nor is it necessary for Tesla to have a cause of action against Avanci, or for the obligation to grant a FRAND licence to be one which binds Avanci independently of its principals, the SEP owners (which include InterDigital). We must also consider whether Tesla has a legitimate interest in securing the relief sought as against InterDigital and Avanci; whether there is justification for seeking declaratory relief; and whether the declarations sought would serve a useful purpose. We have no doubt that the answer to all these questions is in the affirmative and that, as Fancourt J held, Tesla has a legitimate interest in pursuing this relief, which would in principle serve a useful purpose. Our reasons are these. First, Fancourt J reasoned, at para 97 of his judgment, that if no such claim can be pursued, the rate set by Avanci may not be capable of effective challenge in a FRAND determination. The Avanci 5G Platform licence is how, in practice, the 5G SEP owners grant licences, and how implementers such as Tesla pragmatically operate their businesses. If the court were to decide that a FRAND licence of InterDigital’s Challenged Patents is a global platform licence, and that the FRAND rate for the Avanci 5G Platform Licence is, say, $24 per vehicle as opposed to $32 per vehicle, so as to bind Tesla and Avanci, then it is likely that Avanci would reconsider its position. We respectfully agree. Moreover, as Arnold LJ explained at paras 96 and 97, and again we agree, it would be likely to make Avanci’s position that its rate is in fact FRAND unsustainable. It would also mean that licensors in the Avanci 5G Platform could not rely on the Avanci 5G Platform licence as meeting their FRAND obligation. 138. It is also important for this court to consider and have in mind the wider implications of the decision of the Court of Appeal and of the issues now before us. The interventions of the CCIA, ACT, the FSA, and the MPA highlight the position on the ground across a range of industries and explain that although it is in theory possible for implementers to seek bilateral licences with pool or platform licensors, the number of SEPs involved, the number of SEP owners and the many owners who are not in practice prepared to engage in bilateral negotiations mean that it is neither practical nor commercially viable for implementers to attempt bilateral negotiations with each of them. As a matter of commercial reality, the only licence available to implementers for a large proportion of SEPs is the licence available from pool or platform operators. What is more, the existence and operation of such pools and platforms of SEPs, without the possibility of court scrutiny of the pool or platform rates, would seriously undermine the effectiveness of the FRAND obligation of the SEP owners. We recognise that the ICLE does not share these views and contends that the attempt to extend FRAND obligations to SEP pools and platforms is legally unfounded, economically unsound and would generate adverse consequences for efficient licensing structures. We have given careful consideration to all these contentions. We reject the first: for the reasons we have given, we are satisfied that Tesla has a seriously arguable case that it is entitled to the declarations it seeks. We also have considerable doubt as to the correctness of the other contentions, which depend in significant part on the proposition that the market discipline imposed by the possibility of bilateral licensing is sufficient to control pool and platform licence rates. But that requires bilateral licensing to be a viable and available alternative, and there is at least a seriously arguable case that, as a matter of commercial reality, it is not. It remains to consider fairness and whether, as the majority of the Court of Appeal held, considerations of procedural fairness would in any event be a bar to the grant of declaratory relief. In the view of the majority in the Court of Appeal, a declaration as to the FRAND terms of the Avanci 5G Platform licence would have the potential to affect, significantly and directly, the rights and interests of all the owners of the SEPs on the platform, and it was simply not arguable that this exercise could be undertaken fairly without the owners being joined or represented. On this further appeal, InterDigital and Avanci support the reasoning of the majority in the Court of Appeal. They contend, relying on the statements of principle in the Moscrop and Nexus cases, that it would be contrary to the most basic principle of natural justice for the court to make an order which would alter the rights of many individuals without giving them an opportunity to make submissions. Further, all interested persons should be made parties except in very exceptional circumstances. 142. Again, we find ourselves unable to accept these submissions. The issue of fairness is one that must be considered in the circumstances of each particular case, and here we are firmly of the view that it is not necessary, at least at this stage, to require all the SEP owners to be joined to the proceedings or represented in them as a condition of allowing this claim to proceed. The SEP owners who have joined an Avanci platform have already relied on Avanci’s expertise to devise an appropriate royalty. Avanci arrived at the royalty rate for the 5G Platform based on its own investigations, discussions with licensors and licensees and in the exercise of its own judgment, and no doubt in the light of its own experience. The prospective licensors were then presented with the rate on a “take it or leave it” basis. Avanci is the essential party in any assessment by the court of the terms of the Avanci 5G Platform licence, whether those terms are FRAND and, so far as they are not FRAND, what the terms of a FRAND licence would be. Second, in any event the individual Licensors have the option to apply to participate in the proceedings, and any judge hearing an application that one or more of them be permitted to do so will no doubt give close and sympathetic consideration to that application and their interest in the outcome of the proceedings. These are matters for case management but do not justify a finding that Tesla has no real prospect of succeeding in the claims now before us. Third, we share the view expressed by Arnold LJ (at para 101) that the outcome of the proceedings would not necessarily adversely affect the interests of the individual SEP owners in any event, but this is not a consideration to which we have attached any great weight. For all of these reasons, we conclude that there is a serious issue to be tried against InterDigital and Avanci on the Licensing Claims. We must now consider Tesla’s alternative claim that it is entitled to a bilateral licence. Tesla maintains that its pleaded case arguably advances and at least embraces the possibility of a declaration of its entitlement to a bilateral licence from InterDigital of its 2G–5G SEPs and for a determination of the FRAND terms of such a licence. It also contends and we accept that its right to such a bilateral licence cannot seriously be disputed, if its primary case fails. The Court of Appeal, again by a majority, held that Tesla had not pleaded a claim to a bilateral licence, however, and had only raised this possibility for the first time in oral argument before that court. We are satisfied that the Court of Appeal fell into error here too. Tesla contends in its particulars of claim, at para 40, that it is entitled to a licence on FRAND terms of InterDigital’s SEP portfolio: “A declaration that the terms of the SPLA in so far as they relate to any patents in the Avanci 5G Pool which designate the United Kingdom are not FRAND and therefore do not comply with the relevant FRAND commitments given under Clause 6.1 of the ETSI IPR Policy; alternatively, a declaration as to the terms which are FRAND for those patents (alternatively, such patents within that pool as are owned by InterDigital).” There can be no doubt that Tesla’s primary objective is a FRAND licence of all the SEPs on the Avanci 5G Platform. Nevertheless, we are satisfied that the pleading and prayer for relief do embrace, in the alternative, a claim for a determination of the FRAND terms of a bilateral licence of all the SEPs in InterDigital’s global portfolio. We understand that this alternative, fallback, case was developed in oral argument for the first time before the Court of Appeal. That was regrettable but does not indicate that the alternative claim has not been pleaded. Further, if it is to be pursued, it is plainly desirable that it is spelled out in clear terms. No doubt that will be addressed by appropriate case management directions. 152. The following issues relating to whether the courts of England and Wales have jurisdiction to determine this claim arise: CPR r 63.14: Whether the Licensing Claims against IDPH were properly served pursuant to CPR r 63.14(2). (v) The proper characterisation of the Licensing Claims for the purpose of assessing the appropriate forum. Whether the Delaware Court of Chancery is an available forum for the Licensing Claims, as properly characterised. If the Delaware Court of Chancery is an alternative available forum, whether: permission to serve Avanci out of the jurisdiction should be set aside on the basis that England and Wales is not clearly the more appropriate forum; the proceedings against IDPH should be stayed on grounds of forum non conveniens; and/or permission to serve IDH out of the jurisdiction should be set aside on the basis that England and Wales is not clearly the more appropriate forum. Discretion to refuse permission for service out: Whether permission to serve the Licensing Claims out of the jurisdiction ought, in all the circumstances, to have been refused as a matter of discretion. The jurisdictional issues (other than issue (vi)) were addressed by Fancourt J and Arnold LJ but not by the majority of the Court of Appeal. A central issue between the parties in relation to the jurisdictional issues concerns the proper characterisation of the Licensing Claims, so it is convenient to address this at the outset. As we have explained (see paras 24–25), this is an implementer-led claim in which Tesla approaches the court, proactively, for a decision as to what it must do to avoid any risk of it being characterised as an unwilling licensee of the SEPs it needs to market and sell its vehicles in the UK in the circumstances summarised below. Tesla contends that at the heart of its claim is its entitlement to be granted a licence on FRAND terms to the UK SEPs, as we have defined them (see para 64), that is to say, the SEPs which are on Avanci’s 5G Platform and are owned by InterDigital, including the Challenged Patents, and for a declaration of the terms of such a licence. As noted in para 41 above, Tesla says that it wants to launch 5G-enabled vehicles on the UK market, which is its fourth largest global market. In order to do so it needs to be able to use 5G technology which is protected by the UK SEPs. Tesla desires to obtain commercial certainty in the UK market to launch its 5G-enabled vehicles. It needs a licence for the UK SEPs so that it can implement the standard in the UK market without hindrance. Overlaying InterDigital’s UK SEP rights is the undertaking that InterDigital has given in respect of those rights to ETSI to offer and grant licences on FRAND terms, and although that is a global undertaking given in respect of SEPs in the UK and in other territories which are included on Avanci’s 5G Platform, Tesla’s claim concerns enforcing that undertaking in the UK to obtain a licence to the UK rights that are subject to it. 159. Tesla submits that this characterisation of the claim is borne out by its pleaded case. It emphasises, in particular, the following paragraphs of the particulars of claim: Para 2—Tesla wishes “to enter an Avanci 5G Pool Licence (as defined below) on FRAND terms (which licence would include a licence to the UK SEPs (as defined below) owned by” InterDigital. Para 8—“… In 2022, at least 54,622 Tesla 4G-enabled Vehicles were registered in the United Kingdom (35,551 Tesla Model Y and 19,071 Tesla Model 3). In that same year, the United Kingdom was the 4th largest national market by volume for such vehicles after the United States, China and Germany.” Para 9—“In the future, the Tesla Group intends to sell in the United Kingdom a range of fully electric vehicles that are, inter alia, capable of connecting to and interoperating with the 5G Standard…” Para 10—“The Second Claimant [(Tesla UK)] is a company incorporated under the laws of England and Wales. It is a wholly owned, indirect subsidiary of the First Claimant [(Tesla US)] and part of the aforementioned Tesla Group. The principal activities of [Tesla UK] are sales of premium fully electric vehicles throughout the UK and the provision of services in respect of such vehicles. In FY2022, [Tesla UK] had revenue of £2,839,104,000 derived from, inter alia, UK sales of Tesla 4G-enabled Vehicles.” Para 14—“InterDigital is the holder of a portfolio of UK patents and patent applications (the ‘InterDigital UK SEP Portfolio’) that have been declared essential to certain technological standards (‘Standard Essential Patents’ or ‘SEPs’) of the European Telecommunications Standards Institute (‘ETSI’) and equivalent standards of other standards setting organisations (‘SSOs’). The InterDigital UK SEP Portfolio includes the ‘Challenged Patents’, as defined below, and other UK SEPs that have been declared essential to the … 5G Standard…” Para 40—“Tesla is a beneficiary of InterDigital’s FRAND Commitment …; it is, accordingly, entitled to a licence on FRAND terms covering InterDigital’s International SEP Portfolio (including InterDigital’s UK SEP Portfolio and the Challenged Patents) and further entitled to such a licence by the time that it begins to sell Tesla 5G-enabled Vehicles in the United Kingdom.” Para 42—“For present purposes and in the specific context and circumstances of this case, it is averred that a FRAND licence covering the Challenged Patents has at least the following terms: a. It covers the entirety of the Avanci 5G Pool, and not just the Challenged Patents or InterDigital’s UK SEP Portfolio or InterDigital’s International SEP Portfolio; It provides for, or is based on, a per vehicle royalty rate that is significantly lower than the Avanci 5G Rack Rates.” Para 54—“By (i) signing the InterDigital Licensing Declarations and the Avanci 5G Pool Declarations and (ii) returning those signed Declarations to the Director-General of ETSI, InterDigital and each other Avanci 5G Pool Member, as applicable, entered into a contract with ETSI whereby each Avanci 5G Pool Member (including InterDigital) is bound to grant licences of its ESSENTIAL IPR, including the Challenged Patents, on terms and conditions which are in accordance with Clause 6.1 of the ETSI IPR Policy (the ‘FRAND Commitment’).” Para 58—“… the Avanci 5G Pool Members have appointed Avanci as a licensing agent to enter into or grant licences in respect of the Avanci 5G Pool on their behalf. Accordingly, Tesla is entitled to enforce the FRAND Commitment of each Avanci 5G Pool Member, including InterDigital, by seeking a licence from and/or through Avanci covering the entirety of the Avanci 5G Pool.” Para 60—“If and to the extent that the Court determines the terms which are FRAND for a licence between Tesla and Avanci covering the Challenged Patents and/or the Avanci 5G Pool, and Tesla can thereafter ensure that it is required only to pay such sums as are or would be FRAND under such an agreement, Tesla would avoid the consequences which may otherwise result were such a FRAND licence not to be available to Tesla on commencing importation or sale of Tesla 5G-enabled vehicles in the United Kingdom.” Tesla also emphasises the following UK patent-based relief sought in the prayer (quoted also at para 149 above): A declaration that the terms of the SPLA in so far as they relate to any patents in the Avanci 5G Pool which designate the United Kingdom are not FRAND and therefore do not comply with the relevant FRAND commitments given under Clause 6.1 of the ETSI IPR Policy; alternatively, a declaration as to the terms which are FRAND for those patents (alternatively, such patents within that pool as are owned by InterDigital).” InterDigital, on the other hand, submits that, properly characterised, Tesla’s claim is as to worldwide licensing through the Avanci 5G Platform. It is a contractual claim, under the FRAND obligation governed by French law. In so far as the claim relates to any patents, it relates to all Avanci 5G Platform SEPs worldwide. 162. InterDigital also emphasises that (1) Tesla seeks a licence from Avanci to all SEPs on the Avanci 5G Platform. Individual Licensors can leave or join the Avanci 5G Platform at any time (see para 36). The Avanci 5G Platform licence is to all relevant SEPs owned by the Licensors from time to time not any particular patents. (2) Tesla expressly says that licence should be global. (3) Avanci can only license the whole Avanci 5G Platform and not any subset of SEPs on it. It cannot offer a licence to InterDigital’s patents alone nor UK patents of Licensors alone. (4) The ETSI Undertakings of each Licensor only apply to its own IPR, so the claim is necessarily based on the FRAND obligations of all Licensors over all Avanci 5G Platform SEPs worldwide. InterDigital’s FRAND obligation alone could not support the 5G Platform licence from Avanci. (5) ETSI declarations are made and the FRAND obligation is undertaken on a global basis. (6) A claim to an Avanci 5G Platform licence of UK patents or InterDigital’s UK patents or the Challenged Patents, would be meaningless and is not the true subject matter of Tesla’s claim. InterDigital relies in this connection on the proportion of the Avanci 5G Platform SEPs made up of UK SEPs to which we have referred. It points out that the UK SEPs of all Licensors are only about 7% of the whole, and InterDigital’s UK portfolio is much smaller: it was one Licensor out of around 65, and abouttenth largest. The Challenged Patents are three out of approximately 170,000 (or 11,900 in the UK) and, so it contends, are of no particular significance. 164. InterDigital also submits that its characterisation of the claim is supported by the particulars of claim. It emphasises the following averments made by Tesla in its pleading: Para 1(iii)—its claim is that it has rights “to a FRAND licence covering the entirety of the Avanci 5G Pool”. Para 5—it is “seeking to enforce their contractual obligation to an Avanci 5G Pool Licence on FRAND terms”. Para 40—it is “entitled to a licence on FRAND terms covering InterDigital’s International SEP Portfolio”. Para 41—it is “a beneficiary of the FRAND commitments of all of the Avanci 5G Pool Members … it is, accordingly, entitled to a licence on FRAND terms covering the Avanci 5G Pool”. Para 44—it undertakes to take a licence “covering the entirety of the Avanci Pool”. Para 46—it asserts: “All patents in the Avanci 5G Pool (including the Challenged Patents) are encumbered by FRAND declarations … .” Para 54—it asserts: “InterDigital and each other Avanci 5G Pool Member … entered into a contract with ETSI whereby each Avanci 5G Pool Member (including InterDigital) is bound to grant … licences of its ESSENTIAL IPR … .” Para 58—it concludes that it “is entitled to enforce the FRAND commitment of each Avanci 5G Pool Member, including InterDigital, by seeking a licence from and/or through Avanci covering the entirety of the Avanci 5G Pool”. InterDigital further submits that the substance of Tesla’s claim is for a licence of all Avanci 5G Platform patents worldwide enforcing all ETSI undertakings and the FRAND obligation of all Licensors, and that this is borne out by the prayer and in particular: Declaration (6) which says the licence said to be FRAND, is “a licence (i) between Tesla and Avanci” that “(iii) covers the entirety of the Avanci 5G Pool”. Although Fancourt J held that the subject matter of the claim related wholly or principally to property within the jurisdiction, he characterised the claim “as a whole” more broadly. He held (at para 131) that: “… the right way to characterise the claim as a whole is as a licensing claim about FRAND terms for a worldwide licence of the 5G SEPs. There is no real dispute about contractual rights and there is no infringement claim. Although there is a patent claim, it is (at Tesla’s election) relegated to a second stage of the proceedings, which may well not be needed. Where an implementer starts proceedings such as this and undertakes to take a licence on FRAND terms, they cannot expect the proceedings to be characterised as a dispute about UK patents, unless the claim was issued in response to a threat of an injunction.” 167. “… the Licensing Claims relate wholly to property within the jurisdiction because the claims concern UK SEPs. InterDigital argue that the jurisdiction question cannot be determined by what InterDigital characterise as the artificial framing of the declarations sought by Tesla, when in reality the claim on Tesla’s own case is a contractual claim to a global licence of SEPs, the vast majority of which are non-UK SEPs. While I appreciate the superficial attraction of this argument, I do not accept it for reasons which should be familiar to students of the English courts’ jurisprudence in this field. In short, it is necessary to distinguish between the property on the one hand and the FRAND obligation which affects it on the other hand. Patents are territorial rights, but (i) standards such as the ETSI Standards are global standards which are exploited globally, (ii) the FRAND obligation under clause 6.1 is a global one and (iii) a licence on FRAND terms may well be a global one (meaning that a UK-only licence is not FRAND). Thus a licence to a single UK SEP on FRAND terms can be, and often is, a global licence to all corresponding SEPs (and indeed other families of SEPs in the same portfolio). In [Nokia Technologies Oy v OnePlus Technology (Shenzhen) Co Ltd [2022] EWCA Civ 947; [2023] FSR 11] this Court upheld the jurisdiction of the English courts in respect of the claim even though the UK represented less than 0.5% of the relevant market (which does not necessarily mean that only 0.5% of the SEPs were UK ones, but nevertheless gives a sense of the order of magnitude). That case concerned an infringement claim, and so the jurisdictional analysis was somewhat different, but nevertheless it illustrates the point. Thus the Licensing Claims relate wholly to UK SEPs even though it is Tesla’s case that the FRAND obligations attaching to those UK SEPs carry with them an obligation to grant a licence of global, and not merely UK, extent. Indeed, neither Avanci nor InterDigital dispute that a licence on FRAND terms of the relevant SEPs would be a global one.” Arnold LJ characterised the dispute between the parties as follows (at para 116): “I would characterise Tesla’s Licensing Claims against Avanci as a dispute about what terms for a licence of the UK SEPs in the Avanci 5G Platform are FRAND even though it is Tesla’s case (and Avanci does not dispute) that only a global licence, rather than a UK-only licence, would be FRAND. More specifically, the dispute is as to what royalty rate is FRAND.” 169. Arnold LJ’s reference to “the English courts’ jurisprudence in this field” was an allusion to Birss LJ’s judgment in Vestel and decisions which have followed it. As explained above (see paras 128–129), in that case Vestel sought a declaration from the court that the terms of the licence offered by Access Advance were not FRAND and a declaration of what the FRAND terms would be. The claim failed because, once Vestel abandoned its claim for abuse of a dominant position, it had no legally enforceable claim to a FRAND licence, there being “no such thing as a free standing FRAND claim” (per Birss LJ at para 78). If Vestel had had an enforceable right then Birss LJ held (obiter) that the subject matter of the claim would have been the UK SEPs notwithstanding that the licences of the UK SEPs which would be FRAND would also license patents granted in other countries, that is to say, foreign patents. Birss LJ stated at para 71: “I am prepared to accept that if Vestel did claim to have a legally enforceable right against a patentee or a licensing agent of a patentee, whereby Vestel were entitled to be offered a FRAND licence under the UK SEPs in the HEVC Advance pool, then the subject matter of that particular claim would be the UK SEPs. The question that claim would be concerned with is the licence terms which are available to license those UK rights. The fact that the only licence of the UK patents which is FRAND would also involve licensing foreign patents does not alter the subject matter of the claim. The fact that UK patents in the FRAND licence were only 5% or less of the patents licensed by it would make no difference. I would hold that such a claim was one which related wholly or principally to property within the jurisdiction …” In Alcatel v Amazon Zacaroli J explained his agreement with Birss LJ’s reasoning as follows (at para 120): “In my judgment, this obiter comment of Birss LJ is correct. Nokia’s argument confuses the subject matter of the licence that is sought with the subject matter of the claim that is brought. The claim is one to enforce the contractual obligation of Nokia pursuant to the declarations made in respect of the two UK patents, to grant a licence on RAND terms. That is a claim which relates wholly to property within the jurisdiction, even though the licence sought is one that covers a global portfolio of patents, of which the UK patents are only a small element …” (Emphasis in original.) 172. In the present case, Fancourt J also expressed (obiter) his agreement with the reasoning of Birss LJ: I would have had no hesitation in following this reasoning, so far as IDH is concerned, had I found there to be a good arguable claim. That claim is or includes a claim to a licence of the UK 5G SEPs of InterDigital. Although it is then contended that the licence that is FRAND is a more extensive licence than one limited to those patents, the claim is nevertheless one relating to UK property. Or at least, on the basis of Vestel [[2021] 4 WLR 60], Tesla clearly has the better of that argument, as things stand. In my judgment, the fact that a licence for SEPs of other Patentees as well as InterDigital’s SEPs is said to be FRAND does not change the analysis …” This is a formidable line of authority which has been most recently endorsed by the Court of Appeal in Acer Inc v Nokia Technologies Oy [2026] EWCA Civ 564 (“Acer v Nokia”)at paras 36–38 (per Arnold LJ, with whom Peter Jackson and Zacaroli LJJ agreed). We agree with the reasoning in Vestel and subsequent cases and we also agree with Arnold LJ that, for the reasons given by him, it applies to a licensing claim relating to UK SEPs where the licence is offered under a worldwide platform, such as the Avanci 5G Platform. We would, in any event, be reluctant to disturb such a long line of authority on an essentially procedural question. We would also observe that any other approach would result in a striking asymmetry. A claim for an injunction to restrain infringement of UK patents, met by a defence by the implementer to determine what was a global FRAND licence of those patents, would clearly be about UK patents. It would be surprising if the reverse claim (by an implementer to stave off a threatened injunction to restrain infringement of UK patents) was to be differently characterised. Then two identical disputes would take their characterisation by who fired first. That would be unprincipled and unsatisfactory. Tesla’s pleading in the present case was clearly carefully modelled on the reasoning of Birss LJ in Vestel, as endorsed in later cases. Tesla claims that it is entitled to be offered a FRANDlicence of InterDigital’s UK SEPs on the Avanci 5G Platform. For the reasons given by Birss LJ in Vestel and by others in subsequent judgments, the fact that the only licence of those UKSEPs which is FRAND would also involve licensing foreign patents and would be a global licence does not alter the subjectmatter of the claim, which is to enforce the FRAND obligation to grant Tesla a licence of InterDigital’s UK SEPs, and in that way to preclude a finding that Tesla is infringing or threatening to infringe those UK SEPs. We consider that the claims made relate principally to InterDigital’s UK SEPs on the Avanci 5G Platform and that Arnold LJ was correct to characterise the Licensing Claims as being about the licensing of those patents and “what terms for a licence of the UK SEPs in the Avanci 5G Platform are FRAND even though it is Tesla’s case (and Avanci does not dispute) that only a global licence, rather than a UK-only licence, would be FRAND” (per Arnold LJ at para 116). Under CPR r 63.1(1)(a)(i), CPR Pt 63 applies “to all intellectual property claims including … registered intellectual property rights such as … patents”. CPR r 63.1(2) makes clear that a “patent” in this context means a patent under the Patents Act 1977. CPR r 63.14(2)(a) provides: “A claim form relating to a registered right may be served … on a party who has registered the right at the address for service given for that right in the appropriate register at … the United Kingdom Patent Office … provided the address is within the United Kingdom…” IDPH, which is the owner of the Challenged Patents and other InterDigital UK SEPs on the Avanci 5G Platform, was served with the claim form within the jurisdiction in reliance on CPR r 63.14(2). It was common ground that this was proper service in relation to the Patent Claims. Tesla contends, as it did before the judge and the Court of Appeal, that this was also valid service in relation to the Licensing Claims. Here we would note that although Tesla only purported to serve the claim form on IDPH with respect to the Challenged Patents, the issue would be the same with respect to InterDigital’s other UK SEPs on the Avanci 5G Platform, as Arnold LJ observed (at para 208). IDPH’s registered rights are its rights in the InterDigital UK SEPs declared for the Avanci 5G Platform, including the Challenged Patents. The question, therefore, is whether Tesla’s Licensing Claims relate to those registered rights. 181. Similar claims have been held to fall within CPR r 63.14(2) in a number of cases. In Mediatek v Huawei Leech J held (at paras 160–167) that claims for FRAND declarations, including as to the terms of a global FRAND licence, were claims “relating to”UK registered rights which had been validly served under CPR r 63.14(2). In Amazon v InterDigital, Meade J followed this approach, stating that it was both right and supported by preceding decisions (at para 65). Meade J explained the significance of there being patents within the jurisdiction as follows (at para 69): “It is no trivial matter for a party to have patents within the jurisdiction. Patentees choose to do so and it makes perfect sense that if they do, then they are subject to the jurisdiction of the courts here when it comes to determining the scope and effect of their monopolies. It is entirely sensible that claims about patents can be served in the jurisdiction as of right and in a broader context it is obviously rational for ownership of a patent in the UK to be regarded as a sufficient connection in the sense in which Lord Leggatt was considering that in Brownlie II [Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45; [2022] AC 995]”. Arnold LJ held that Tesla’s claims did relate to IDPH’s registered UK patents. As he stated (at para 212): “… the point depends upon the proper characterisation of the Licensing Claims. The Licensing Claims seek to enforce the FRAND obligations attaching to InterDigital’s UK SEPs, and thus ‘relate to’ patents under the 1977 Act as explained above. It makes no difference that Tesla contend that a FRAND licence of InterDigital’s UK SEPs is a licence which extends to InterDigital’s non UK-SEPs, and indeed non-UK SEPs of other members of the Avanci 5G Platform.” InterDigital contends that these decisions are wrong and that they misunderstand the limited scope of CPR r 63.14. Part 63 relates to “Intellectual Property Claims”. The Patents Rules 2007, in rule 103, provide that “For the purposes of any proceeding under the [Patents Act 1977] or these Rules”, an address for service must be furnished by an applicant fora UK patent, and may be given by a proprietor. The address for service under CPR r 63.14 is that given under the relevant Rules. That shapes the meaning of CPR r 63.14. Its intended function is to permit service of proceedings about rights arising under the relevant Acts and Rules: that is “Intellectual Property Claims” within rule 63.1(1), not more broadly. It is a technical provision intended for service of claims that are properly UK patent, trade mark or registered design proceedings, about UK intellectual property rights. It is not meant for claims in respect of other legal rights. InterDigital submits that this is supported by Actavis Group HF v Eli Lilly & Co (“Actavis v Lilly”)[2013] EWCA Civ 517;[2013] RPC 37. It relies on the observation made by Kitchin LJ in that case that CPR r 63.14 “is intended to provide a means for service of claims concerning patents under the 1977 Act and in respect of which an address for service has been given in the UK Patent Office register … CPR [r] 63.14 is specific in its terms and correspondingly limited in scope” (para 81). It “only provides a means for service in so far as [the claim] relates to the UK designation”, otherwise its provisions “could be circumvented by … convoying claims in respect of foreign patents with a claim in respect of a corresponding UK patent” (paras 80 and 82). InterDigital also submits that “related to” may have a wide meaning of “connected to” or a narrow meaning of “substantially or really about”. Understood in context, CPR r 63.14 adopts the narrow meaning. It covers claims substantially about the registered right, not claims really about other rights. If it covered claims about other rights, it would cut across the boundaries of PD 6B. 186. Bearing these considerations in mind, InterDigital further contends that Tesla’s claim does not fall within CPR r 63.14 for the following reasons: (1) It is not a claim under patent rights, nor under the Patents Act nor of a similar nature, nor is it an “intellectual property claim” within CPR r 63.1(1). It is independent of the validity and essentiality of any UK patent. It does not fall within the intended “specific” and “limited in scope” of CPR r 63.14. (2) In substance it is a claim as to licensing of the Avanci 5G Platform, so if it “relates to” patents at all, it relates predominantly to SEPs not registered at the address for service. It relates to the Challenged Patents at most minimally as a tiny fraction of all the SEPs on the Avanci 5G Platform. (3) The claim is about all Licensors’ FRAND obligations and all Avanci 5G Platform patents, but CPR r 63.14 only permits service “on a party who has registered the right at the address for service given for that right” so it cannot support service of claims relating to other rights, still less the rights of others. 187. For the purposes of this appeal, it is not necessary to seek to define the scope of CPR r 63.14. We would not, however, accept that the phrase “relating to” should be glossed so as to be given the narrow meaning of “substantially or really about” an intellectual property right. A claim may relate to a legal right if it concerns the scope of the right, and so a claim to a licence to carry on a particular activity which, if made out, would preclude a finding of infringement of a UK SEP is, in our view, a claim relating to that UK SEP. Nor do we consider that Actavis v Lilly assists on this issue. The comments there made about CPR r 63.14 being “specific” and “limited in scope” were made in the entirely different context of a claim for declarations of non-infringement in respect of certain foreign patents. These were not claims relating to UK patents. As Arnold LJ explained at para 211: “… In Actavis Group HF v Eli Lilly & Co [2013] EWCA Civ 517, [2013] RPC 37 this Court held that a claim form seekingdeclarations of non-infringement had not been validly served pursuant to rule 63.14(2)in so far it related to French, German, Italian and Spanish designations of a European Patent as opposed to the UK designation. This is because, once granted, European Patents are distinct national patents even though they are the result of a single application to the European Patent Office. Thus they are commonly referred to as ‘bundle patents’. A European Patent (UK) is, by virtue of provisions of the Patents Act 1977 which it is unnecessary to set out, a patent under the 1977 Act, but European Patents (DE), (FR), (IT) and (SP) are not.” If, for the reasons given above, the subject matter of the claim is InterDigital’s UK SEPs and the claim is correctly characterised as being about the existence and scope of a licence to carry out an activity falling within the scope of InterDigital’s UK SEPs, then we consider that to be a claim “relating to” those patents and the rights they confer. Put another way, as Arnold LJ correctly explained at para 210 of his judgment, the Licensing Claims relate to those UK patents because a licence would provide a defence to any claim for infringement of them. If IDPH was properly served within the jurisdiction under CPR r 63.14(2) then another person may be served under Gateway 3 if that person is “a necessary or proper party to that claim”. Fancourt J held that if there had been a serious issue to be tried in relation to the Licensing Claims against InterDigital then Gateway 3 would have been applicable in relation to the claim against Avanci. Since the claim against InterDigital would concern the terms of Avanci’s licence it would clearly be a necessary or proper party to such a claim, if it was to proceed. Indeed, Avanci made it clear that in that eventuality it would wish to participate in the proceedings in any event. “I do not understand it to be in dispute that if, as I have concluded in paragraph 167 above, Tesla have a proper claim against IDPH with regard to the Licensing Claims and if, as I have concluded in paragraphs 206–212 above, the Licensing Claims were validly served on IDPH pursuant to rule 63.14(2), then IDH is a necessary or proper party to those claims.” InterDigital submits that Arnold LJ should not have addressed the issue since it was not properly before the court. He did, however, address the issue and whether or not he was correct to do so is not a matter for this court. InterDigital further submits that since it was IDH rather than IDPH which gave the undertaking to ETSI (see para 39) there is no free-standing cause of action against IDPH and therefore no claim against it to which IDH can be joined. We can see no good reason to go behind the conclusion of Arnold LJ. The undertaking was given by IDH on behalf of IDPH as patent owner. If, as we have held, Tesla’s claim can proceed against IDPH because it relates to its UK SEPs, then a necessary or proper party to that claim is the other InterDigital party that gave the undertaking on behalf of that owner. Given our conclusion that the claim may proceed against IDPH under CPR r 63.14 and that Gateway 3 is available to enable service on IDH, it is strictly unnecessary to decide whether Gateway 11 (CPR PD 6B. para 3.1(11)) is also available to enable service on IDH. Since, however, it has been fully argued we will address the issue. “The subject matter of the claim relates wholly or principally to property within the jurisdiction, provided that nothing under this paragraph shall render justiciable the title to or the right to possession of immovable property outside England and Wales.” The availability of Gateway 11 for implementer-commenced claims for declarations as to the terms of a global FRAND licence has been confirmed in a number of cases since Vestel. These include Alcatel v Amazon at paras 115–120; Mediatek v Huawei at para 184; Warner Bros v Nokia [2025] EWHC 2888 (Pat) at paras 23–28; Amazon v InterDigital at para 65. It is also supported by the judgments of Fancourt J and Arnold LJ in the present case and the recent Court of Appeal decision in Acer v Nokia at paras 32–41. InterDigital submits that this line of authority is wrong, essentially for the reasons relied upon in relation to the correct characterisation of the claim. It submits that the claim made is to an Avanci 5G Platform licence. This licence can only relate to the whole Avanci 5G Platform. That being so, it is artificial to seek a declaration of the FRAND terms of a licence under InterDigital’s UK patents. Moreover, Tesla’s claim as to a Platform licence is not, and could not meaningfully be, as to the FRAND terms for InterDigital’s UK patents, because Avanci cannot license a subset of the 5G Platform SEPs, nor can InterDigital grant a licence to the Platform. InterDigital further points out that if the Vestel line of authority is correct, the same claim to a contractual right to a worldwide licence could equally be described as “wholly or principally” about the SEPs in any country in the world, just by the device of formulating a claim as to a licence to the SEPs in that country, but extending worldwide. This would lead to undesirable forum shopping. InterDigital also contends that such a broad interpretation of Gateway 11 would logically extend to other situations with detrimental results. Here InterDigital provides the hypothetical of a global aircraft leasing contract, with some aircraft in the UK and some around the world, which includes a provision for renewal on terms set by an independent evaluator. If the lessee requested a determination of those renewal terms, it could, so InterDigital argues, artificially rely on Gateway 11 by characterising it as only requesting a determination in respect of the UK aircraft despite seeking a global licence of all aircraft. This would effectively “legislate a new gateway”. For reasons already given, we accept the reasoning of the Vestel line of authority and its application to Tesla’s claim in this case. If the subject matter of the claim is InterDigital’s UK SEPs on the Avanci 5G Platform and the claim is correctly characterised as a claim for a licence of those UK SEPs on FRAND terms, then the claim does relate wholly or principally to UK patents, being property within the jurisdiction. The fact that the only licence of the UK SEPs which could be FRAND would involve licensing foreign patents does not alter the subject matter of the claim. 201. In relation to forum shopping, this is an inherent consequence of the fact that national courts may determine global FRAND terms. A similar point was made in UPSC. As this court there explained at para 90: “Finally, Huawei submits that if a national court were prepared to determine that a worldwide licence is FRAND and that entering into such a licence is a precondition of the refusal of an injunction to prohibit infringement of a national patent, there is a risk of forum shopping, conflicting judgments and applications for anti-suit injunctions. In so far as that is so, it is the result of the policies of the SSOs which various industries have established, which limit the national rights of a SEP owner if an implementer agrees to take a FRAND licence. Those policies, which either expressly or by implication provide for the possibility of FRAND worldwide licences when a SEP owner has a sufficiently large and geographically diverse portfolio and the implementer is active globally, do not provide for any international tribunal or forum to determine the terms of such licences. Absent such a tribunal it falls to national courts, before which the infringement of a national patent is asserted, to determine the terms of a FRAND licence. The participants in the relevant industry, which have pragmatically resolved many disputes over SEPs by the practice of agreeing worldwide or international licences, can devise methods by which the terms of a FRAND licence may be settled, either by amending the terms of the policies of the relevant SSOs to provide for an international tribunal or by identifying respected national IP courts or tribunals to which they agree to refer such a determination.” As to the possible extended application of Gateway 11, we consider that this is unlikely given that the distinct context of international standards and patents (as explained at paras 8–22 above and in UPSC), and of the IPR Policy, distinguishes claims such as these for the purposes of Gateway 11 from other commercial contexts. It is not simply a “rate-setting” obligation contained within a contract about UK property. 203. The linkage between, and the inseparability of, the FRAND obligation and the underlying UK patent in the SEP context is evidenced by the fact that an injunction will not be granted for infringement (of a UK SEP right) where a FRAND licence is requested (under the FRAND obligation). They are both intrinsic elements and features of the UK SEP concerned, and the rights conferred in respect of it. It is further borne out by the fact that the FRAND obligation is intended, so far as is legally possible, to run with and bind the underlying SEP (ie the UK property) irrespective of who happens to be the owner/interest holder at the time of enforcement, as made clear by article 6.1bis of the IPR Policy. This provides: “FRAND licensing undertakings made pursuant to Clause 6 shall be interpreted as encumbrances that bind all successors-in-interest. Recognising that this interpretation may not apply in all legal jurisdictions, any Declarant who has submitted a FRAND undertaking according to the POLICY who transfers ownership of ESSENTIAL IPR that is subject to such undertaking shall include appropriate provisions in the relevant transfer documents to ensure that the undertaking is binding on the transferee and that the transferee will similarly include appropriate provisions in the event of future transfers with the goal of binding all successors-in-interest. The undertaking shall be interpreted as binding on successors-in-interest regardless of whether such provisions are included in the relevant transfer documents.” (Emphasis added.) We would accept, as InterDigital submits, that characterisation for this purpose involves consideration of the “matter to be tried” and identification of what is the most appropriate forum for the “trial of the action”. This involves looking at the substance of the overall dispute and that one should avoid characterising it in a way which prejudges forum, based on the relief sought—see In re Harrods (Buenos Aires) Ltd [1992] Ch 72 (CA). This is not, however, a case involving multiple claims. Leaving aside the patent validity claim, which, on Tesla’s own pleaded case, is to be held over and has been stayed, this is a licensing claim. The correct characterisation of that claim is also going to characterise the dispute. Further, that characterisation does not depend upon particular relief sought, but on the nature of the claim, as properly characterised. For the reasons already given we consider that Arnold LJ was correct to characterise the claim and the dispute raised by it as being about the licensing of InterDigital’s UK SEPs on the Avanci 5G Platform and what the FRAND terms for a licence of those UK SEPs would be. As already stated, this means that Fancourt J was wrong to characterise the dispute as a worldwide licensing claim rather than one about the licensing terms of UK patents. Whether the Delaware Court of Chancery is an available forum for the Licensing Claims, as properly characterised Having considered the written expert evidence, Fancourt J concluded that “it has not been shown that the Delaware Court of Chancery, to which the Defendants have agreed to submit, is not an available and appropriate forum for the licensing claim” (para 138). InterDigital and Avanci submit that there is no proper basis for going behind the judge’s conclusion and re-evaluating the expert evidence and that Arnold LJ was wrong to do so. 207. The principal ground upon which Arnold LJ considered that he could, and should, re-evaluate the expert evidence was that Fancourt J had wrongly characterised the claim. We agree that Fancourt J mischaracterised the claim and that this was material to his approach to the expert evidence and to the conclusion reached by him. In particular, it meant that Fancourt J was focusing on whether the Delaware Court of Chancery was an available forum for a global licensing claim, not whether it was an available forum for a claim for a licence on FRAND terms under the UK SEPs on the Avanci 5G Platform. We consider that this justified Arnold LJ’s re-evaluation of the evidence. As Arnold LJ stated (at para 130): “The issue is whether the Delaware Court of Chancery is an available forum for the determination of the dispute if the Licensing Claims are properly characterised as a dispute about what terms for a licence of the UK SEPs in the Avanci 5G Platform are FRAND, as I have concluded. The judge did not ask himself this question, because he characterised the dispute in a different way …” Only Arnold LJ considered the expert evidence in relation to this question and no grounds have been made out to justify this court reconsidering the conclusion which he reached. 209. As Arnold LJ pointed out (at paras 134–138), Tesla’s expert, Professor Contreras, stated that a US court would not adjudicate upon the validity or infringement of non-US patents, citing authorities in support of that proposition. Against that background Professor Contreras considered the licensing claim for the UK SEPs and declarations (5) and (9) sought in the prayer, namely: A declaration that the terms of the SPLA in so far as they relate to any patents in the Avanci 5G Pool which designate the United Kingdom are not FRAND and therefore do not comply with the relevant FRAND commitments given under Clause 6.1 of the ETSI IPR Policy …” A declaration that terms proposed by Avanci for a licence between Tesla and Avanci covering the Avanci 5G Pool (including the Challenged Patents) are not FRAND.” He stated (as cited in para 140): “I understand that Tesla argues in the English proceedings that the appropriate [FRAND] licence for the UK patents would be a global SEP portfolio licence. Just as it is unlikely that a US court would adjudicate the validity of a non-US patent …, it is also unlikely that any US court would adjudicate a FRAND rate for UK patents.” As Arnold LJ explained in paras 141–144, this conclusion is supported by two US District Court decisions, Optis Wireless Technology, LLC v Huawei Technologies Co Ltd (Eastern District of Texas, 11 July 2018) and Optis Wireless Technology, LLC v Apple Inc (Eastern District of Texas, 2 March 2020). As Arnold LJ also stated in para 145, Avanci’s expert, Mr Kessler “did not take issue in his report with what Prof Contreras had said about the US courts’ jurisdiction with respect to foreign patents” and “did not engage with the reasoning underlying Prof Contreras’ statement” cited in para 210 above. The Court of Appeal were not provided with the report of InterDigital’s expert, Mr Kamprath, presumably because it was not thought that it added to the evidence of Mr Kessler. It is to be noted, however, that he also addressed declarations (5) and (9). He stated that a claim for such declarations could be brought before a US Court, but that: “In the context of a claim brought before the US courts the ‘United Kingdom’ would instead be the ‘United States of America’.” “In the context of a claim brought before the US courts the ‘Challenged Patents’ would be the US equivalents to the Challenged Patents.” This seemingly confirms Professor Contreras’ opinion that the US courts would only adjudicate FRAND terms for US patents, not foreign patents such as the UK patents in issue in the present case. 215. “The conclusion I draw from this evidence is that, if Tesla were to bring the Licensing Claims against Avanci in the Delaware Court of Chancery, Avanci would be likely to move to dismiss those claims on the ground that US courts lack subject matter jurisdiction, alternatively should not exercise any such jurisdiction, in respect of claims concerning foreign patents, and that motion would be likely to succeed. Accordingly, on the balance of probabilities, the Delaware Court of Chancery is not an available forum for the determination of the dispute as properly characterised. The same conclusion applies to Tesla’s Licensing Claims against InterDigital. I would add that, in my view, the same conclusion would apply to the dispute as characterised by the judge, because the US courts would probably not accept jurisdiction in respect of the non-US patents.” On the evidence, as held by Arnold LJ, the Delaware Court of Chancery is not an available forum for the determination of the dispute. If the Delaware Court of Chancery is an alternative available forum, whether: permission to serve Avanci out of the jurisdiction should be set aside on the basis that England and Wales is not clearly the more appropriate forum; the proceedings against IDPH should be stayed on grounds of forum non conveniens; and/or permission to serve IDH out of the jurisdiction should be set aside on the basis that England and Wales is not clearly the more appropriate forum. Fancourt J concluded that, on the basis of his characterisation of the claim, the Delaware Court of Chancery “clearly has a closer connection with the US than with England and Wales” (para 141). Arnold LJ concluded that both courts “would be equally appropriate fora” (para 155). In the light of our conclusion that the Delaware Court of Chancery is not an available forum it is not necessary to decide this question. In those circumstances, the further issues relating to relief do not arise. Discretion to refuse permission for service out: Whether permission to serve the Licensing Claims out of the jurisdiction ought, in all the circumstances, to have been refused as a matter of discretion InterDigital submits that the grant of permission to serve out is discretionary and that permission should be refused on a discretionary basis even if the requirements for service out have been satisfied. It so submits for three reasons: (1) Tesla’s Licensing Claims do not fall within the spirit of Gateway 11 as the substance of its claim is for a worldwide licence. (2) Tesla cannot show “solid practical benefit” from the Licensing Claims against InterDigital: Insurance Corpn of Ireland v Strombus International Insurance Co [1985] 2 Lloyd’s Rep 138, 144. Even if any arguable useful and legitimate purpose can be identified, the benefits of suing InterDigital are insubstantial, the targeting of it unjustified and the costs disproportionate. (3) It would be inappropriate to use Gateway 3 where IDPH is sued to get at IDH. 219. We are doubtful that this point is open to InterDigital. It was not a point determined by Fancourt J nor was it raised in InterDigital’s respondents’ notice to the Court of Appeal and, therefore, it was not considered by either the majority or Arnold LJ. In any event, there would need to be good and compelling reasons for permission to be refused even though all the requirements for service out are met, such as, for example, that it would create a multiplicity of proceedings. No such reasons have been put forward. Instead, InterDigital advance variations of arguments already considered and rejected. As to (1), the substance of the claim depends on its proper characterisation, as set out above (see para 177 above). As to (2), the declarations sought have a legitimate purpose and will provide practical benefit (see paras 135–139 above) and InterDigital has not been unfairly targeted (see paras 43–44 above). As to (3), proceedings have been properly brought against IDPH in this jurisdiction (see paras 178–189 above) and IDH is a necessary or proper party to those proceedings (see paras 190–193 above). For all these reasons we would allow Tesla’s appeal.