Supreme Court move towards merger of judicial review and contractual tests



In Braganza v BP Shipping the Supreme Court, by a majority of 3 to 2 led by Lady Hale, have taken a small step towards incorporating the public law approach in judicial review of the exercise of a discretion into the private law of contractual rights. The case concerned the loss of a chief engineer overboard from his ship in mid-Atlantic. The Claimant had lost her claim in the Admiralty Court for damages in tort against the shipowners, but claimed payment of a death in service benefit that was not payable if the shipowner was of the opinion that the death as due to suicide. The shipowner’s investigation into the death, which concluded that the death was due to suicide, was upheld, but the court nevertheless concluded that it was insufficient to deprive the widow of the contractual death in service benefit. Grahame Aldous QC and Christopher Wilson of 9 Gough Chambers acted for the respondents in the Admiralty Court action and in the Supreme Court.

The extent of this move by the Supreme Court is due to be tested further in a Krebbs v NHS Commissioning Board, which raises the issue of how the court should approach issues of reasonableness in a dentist’s contract for the supply of dental services to the NHS. The matter is subject to appeal to the Supreme Court from the Court of Appeal, which applied a more limited approach than is suggested by the Supreme Court in Braganza. Simon Butler of 9 Gough Chambers is acting for the appellant.

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Grahame Aldous KC

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