Canada: Court Told No Article 50 Notice Before The End Of 2016

Last Updated: July 25 2016
Article by John P. Cooper and Kieran Laird

Most Read Contributor in Canada, October 2018

Yesterday morning saw seven QCs line up in court for a short hearing which represents the first step in proceedings to establish whether it will be the government or Parliament that triggers the process for the UK to leave the EU.

Here, we outline what happened at the hearing and what the next steps in the litigation will be.

The parties

The hearing concerned two separate cases, both of which seek to argue that it is for Parliament rather than the government to trigger Article 50 and thus begin the process which will take the UK out of the EU. One was brought by Mr Deir Dos Santos, an unemployed hairdresser, and the other was brought by a Mr Mark Hardy.

There are, however, a number of other potential claims that seek to address the same point. The most prominent is that of Gina Miller, who is acting as potential lead claimant for a group of persons who have retained Lord Pannick QC, among others. There is also a campaigning group - 'Fair Deal for Expats' - representing a number of individuals who are resident or own property in France, which has indicated an interest in joining the proceedings.

In the face of numerous potential claimants, all seeking to advance the same arguments, the government asked the Court to direct that a lead claimant should be nominated with all the other potential claimants taking the role of interested parties if they still wished to participate.

The lead claimant will take primary responsibility for putting forward the arguments that Parliament, not the government, should trigger Article 50. The interested parties will be able to file submissions adding to the points raised by the lead claimant. However, the position of interested party carries with it a potentially significant downside - if the court decides that the submissions made by the interested party have not been of significant assistance to the court, that party could be liable for costs. Conversely, it is only in exceptional circumstances that an interested party will be able to recover the costs of their intervention.

In a surprising move, the Court - which consisted of Sir Brian Leveson, President of the Queen's Bench Division, and Mr Justice Cranston - held that Ms Miller should be the lead claimant, even though she is not currently a party to any proceedings. (She has undertaken to file her claim before the Court rises for its summer vacation on 29 July.)

There would seem to be two factors which led to that decision. The first is that Mr Dos Santos was seeking a protective costs order (a 'PCO') to proceed. In the ordinary course of litigation, the rule is that the loser will pay the winner's reasonable costs. However, a claimant who is granted a PCO has his liability to pay costs capped at a certain level if he loses. This is obviously unattractive from the point of view of the government as it limits the amount of costs that it can recover if successful.

By contrast, Ms Miller is an 'investment manager and philanthropist' and is said to be backed by a larger group of unnamed individuals who will presumably contribute to her war chest.

In addition, the choice of lead claimant may have been influenced by the counsel who will make her case. Ms Miller is represented by Lord Pannick QC - one of the most distinguished public law silks in the UK - and having such a weighty name behind her, together with her presumed ability to pay the government's bills if she loses, must have served to elevate her up the hierarchy of claimants.  

The arguments

The hearing yesterday morning was not intended to include a full consideration of the substantive legal arguments advanced by either side. Indeed it would have been difficult for it to do so in circumstances where the new lead claimant has not actually lodged her claim yet and the government has not responded to the two claims which have been lodged.

We have discussed the arguments now put forward by the claimants in a previous alert. Those arguments were briefly summarised by Lord Pannick QC.

The government believes that the Prime Minister has the right to trigger Article 50, without recourse to Parliament, through the use of the royal prerogative. The claimants consider this view to be flawed as the royal prerogative cannot be used in areas which have been colonised by Parliament through statute. The purpose of the European Communities Act 1972 was to give domestic effect to EU law and that aim will be frustrated through the issue of an Article 50 notice as it will set in train a process which will lead to EU law ceasing to have effect in the UK. The decision should therefore rest with Parliament.

One preliminary issue that did not need to be considered at the hearing was the interim injunction sought by Mr Dos Santos to prevent the government triggering Article 50 before the case had finally been decided. This was because leading counsel for the government, Jason Coppel QC, confirmed that the government does not intend to trigger Article 50 before the end of the year which, as discussed below, will give the Courts time to fully consider the issue.

Next steps

The case will be listed for a full hearing, to take place over two or three days, not before 17 October. That hearing will take place in front of Lord Thomas, the Lord Chief Justice, together with two High Court judges, with the hope that judgment will be given in early November.

The losing side will then have the opportunity to appeal directly to the Supreme Court (skipping over the usual step of the Court of Appeal) in the hope of a final decision in the case before the Court rises for its Christmas break on 21 December.

The position will hopefully be clarified, therefore, before the earliest date on which the government might consider that an Article 50 notice should be issued.    

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions