Civil litigation
Collier v Bennett — [2020] WLR(D) 411
PRACTICE — Disclosure — Action for — Claimants alleging tweets from anonymous Twitter account amounting to defamation and harassment — Claimants alleging defendant author of tweets — Claimants seeking order requiring defendant to disclose information for use in libel proceedings — CPR r 31.18
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Civil litigation
Hinduja v Hinduja — [2020] 4 WLR 93
PRACTICE — Parties — Litigation friend — Claimant seeking court appointment of daughter as his litigation friend — Defendant opposing appointment on ground that claimant not lacking capacity and daughter having interest adverse to that of claimant — Whether medical evidence required to establish lack of capacity — Relevance of daughter’s personal interest in proceedings — Whether daughter to be appointed — CPR rr 21.3(4), 21.4(3), 21.5, 21.6
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Civil litigation
School Facility Management Ltd v Governing Body of Christ the King College — [2020] WLR(D) 407
INTEREST — Judgment debt — Award — Losing defendant applying for permission to appeal and stay of execution pending determination of appeal — Defendant also seeking order that statutory interest not to run on amount ordered during period of stay — Whether court empowered to disallow period of interest or vary interest rate on granting of stay of execution — Whether permission to appeal and stay of execution to be granted — Interest rate to apply pending determination of appeal — Judgments Act 1838 (1 & 2 Vict, c 110), s 17 — CPR r 40.8
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Civil litigation
Hancock v Promontoria (Chestnut) Ltd — [2020] WLR(D) 408
PRACTICE — Documents — Redaction — Contractual document to be construed by court partially redacted on grounds of irrelevance by party relying on it — Whether party entitled to redact document only on basis of solicitor’s statement that redacted parts irrelevant — Proper approach to construing redacted document — Circumstances in which redaction permitted on grounds of irrelevance
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Civil litigation
Ryder Ltd v MAN SE — [2020] Bus LR 1176
PRACTICE — Competition Appeal Tribunal — Disclosure — Claimants bringing actions against addressees of EU Commission Decision for breaches of competition law — Actions involving many transactions over many years — Proper approach to disclosure in actions — Guidance as to general approach to disclosure in relation to cases before Competition Appeal Tribunal
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Civil litigation
Skatteforvaltningen v Solo Capital Partners llp — [2020] WLR(D) 402
PRACTICE — Evidence — Witness statements — Application for summary judgment supported and opposed by witness statements from parties’ legal representatives — Guidance as to content of witness evidence on summary judgment application — CPR Practice Direction 32, para 18
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Civil litigation
TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Ltd — [2020] WLR(D) 399
PRACTICE — Possession — Stay of proceedings — Tenant seeking declaration tenancies not validly excluded from security of tenure provisions and landlords claiming possession by way of counterclaim — Landlords bringing separate action for declaration — Judge granting order for possession in first action — Parties agreeing to possession order in second action to give effect to judgment — Tenant obtaining permission to appeal in respect of both actions — Practice direction coming into force imposing automatic stay on possession proceedings — Whether automatic stay applying to tenant’s appeals — CPR PD 51Z, para 2
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Tort
Marex Financial Ltd v Sevilleja — [2020] WLR(D) 416
COMPANY — Creditor’s claim against beneficial owner — Rule against reflective loss — Claimant obtaining judgment against companies — Companies allegedly stripped of assets by defendant beneficial owner so that unable to pay judgment debt — Claimant’s action in tort against defendant for damages to recover sums removed from companies equal to judgment debt — Defendant claiming action relating to same loss as that incurred by companies contrary to rule precluding recovery of reflective loss — Defendant applying for striking out of action as offending rule — Extent to which rule remaining good law — Whether extending to claims by unsecured creditors or limited to claims by shareholders for diminution in value of shares or dividends — Whether claimant entitled to pursue claim
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Commercial
Carpatsky Petroleum Corpn v PJSC Ukrnafta — [2020] Bus LR 1284
ARBITRATION — Award — Enforcement — Rulings made by supervisory court of foreign seat in unsuccessful challenge proceedings — Whether party resisting enforcement of award in England estopped from raising same grounds relied on and rejected by supervisory court — Arbitration Act 1996 (c 23), s 103(2)
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Commercial
Gómez del Moral Guasch v Bankia SA — [2020] Bus LR 1266
FAIR TRADING — Contract — Unfair terms — Mortgage — Variable interest rate — Reference index based on mortgage loans granted by savings banks — Index arising from regulatory or administrative provision — Interest rate less favourable than that calculated on basis of average Euro Interbank Offered Rate — Whether interest rate based on official reference indices excluded from scope of Directive on unfair terms in consumer contracts — Whether courts entitled to decline to carry out review of possible unfairness of contractual term drafted in plain, intelligible language where provision not been transposed into domestic legislation — Whether bank had to provide consumer with information on method used for calculating the index — Whether court entitled to replace unfair index with statutory index — Council Directive 93/13/EEC, arts 1(2), 4(1), 5, 6(1), 7(1), 8
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Commercial
XZ v Ibercaja Banco SA — [2020] WLR(D) 405
FAIR TRADING — Contract — Unfair terms — Mortgage contract with variable interest rate — Contract containing “floor” term limiting variability of rate — Floor rate amended by novation agreement — Term in novation agreement that parties waiving right to bring action against other party in event term unfair — Whether term could be subject of novation agreement — Whether, and if so under what conditions, consumer could waive right to rely on unfairness of term — Whether agreement compatible with EU law — Council Directive 93/13/EEC, arts 3(1) (2), 4(2), 5, 6. Annex, para 1(q)
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Commercial
Lehman Bros Australia Ltd v MacNamara — [2020] 3 WLR 147
INSOLVENCY — Administrator — Challenge to administrator’s conduct — Court’s jurisdiction to grant relief where administrator’s conduct unfairly harming creditor’s interests — Whether exercisable to prevent administrator from relying on contractual rights — Guidance as to exercise of jurisdiction — Insolvency Act 1986 (c 45), Sch B1, para 74(as inserted by Enterprise Act 2002 (c 40) Sch 16, para 1)
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Commercial
CeDe Group AB v KAN sp z oo — [2020] 1 WLR 2871
INSOLVENCY — International jurisdiction — European Union — Polish company contracting to supply goods to Swedish company — Polish company going into liquidation in Poland — Liquidator bringing action against Swedish company in Sweden seeking payment for goods supplied — Whether action part of “insolvency proceedings or its effects” — Whether applicable law that of Poland or Sweden — Council Regulation (EC) No 1346/2000, art 4
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Commercial
Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd — [2020] Bus LR 1140
BUILDING — Contract — Adjudication — Enforcement — Statutory rules requiring set-off of claims and counterclaims and payment of balance — Insolvent party referring dispute to adjudication in circumstances where responding party having cross-claim — Whether calculation of balance due in accordance with Rules extinguishing contractual claim — Whether adjudicator having jurisdiction — Whether adjudication having any utility if referring party in insolvent liquidation — Whether injunction to be granted preventing continuation of adjudication — Housing Grants, Construction and Regeneration Act 1996 (c 53), s 108(1) — Insolvency (England and Wales) Rules 2016 (SI 2016/1024), r 14.25
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Commercial
Constantin Film Verleih GmbH v YouTube llc — [2020] WLR(D) 400
EUROPEAN UNION — Information society — Electronic commerce — Operator uploading films onto online video sharing platform without rightholder’s consent — Operators of platform required to provide names and addresses of users who had uploaded works onto platform without rightholder’s consent — Whether “addresses” covering users’ e-mail addresses, mobile telephone numbers, IP addresses — Parliament and Council Directive 2004/48/EC, art 8(1), (2)(a), 3(a)
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Costs
Benyatov v Crédit Suisse Securities (Europe) Ltd — [2020] 1 WLR 2913
COSTS — Discretion of court — Interim payment — Defendant awarded costs of application to strike out particulars of claim in respect of those particulars on which application successful — Costs to be subject to detailed assessment — Defendant failing in two other applications at same hearing — Claimant awarded one-third of costs of defending defendant’s applications — Claimant applying for interim payment on account of costs — Defendant not making such application but resisting claimant’s application — Whether court to exercise discretion to order set off of imprecisely calculated sum said to represent defendant’s wasted defence costs in respect of struck-out particulars of claim — CPR r 44.2(8)
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Costs
Faulkner v Secretary of State for Business, Energy and Industrial Strategy — [2020] 1 WLR 2906
COSTS — Discretion of court — Qualified one-way costs shifting — Claimant discontinuing claim and scheduled preliminary hearing not taking place — Defendant awarded costs of preliminary hearing but claimant protected under qualified one-way costs shifting regime from enforcement of costs order — Defendant applying to set aside notice of discontinuance with view to seeking strike out of resurrected claim and enforcing costs order — Discontinuance application refused and claimant awarded costs — Whether defendant’s costs of preliminary hearing to be set off against claimant’s costs of discontinuance application — CPR rr 44.12(1) 44.14(1), 44.15
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Crime
Garrett v Chief Constable of West Midlands Police — [2020] WLR(D) 418
JUSTICES — Complaint — Time limit — Police seizing dog after biting incident — Police issuing complaint for destruction of dog otherwise than on conviction of owner — Complaint issued within six months of seizure but more than six months after incident — Whether complaint made within statutory time limit — Whether time when “matter of complaint” arose date of incident or date of seizure — Magistrates’ Courts Act 1980 (c 43), s 127(1) — Dangerous Dogs Act 1991 (c 65) (as amended by Dangerous Dogs (Amendment) Act 1997 (c 53), s 3(1) and Anti-social Behaviour, Crime and Policing Act 2014 (c 12), s 107(2)), ss 4B, 5(2)
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Crime
Sutherland v HM Advocate for Scotland (Director of Public Prosecutions intervening) — [2020] WLR(D) 412
CRIME — Evidence — Admissibility — “Paedophile hunter” posing as child online — Defendant sending sexually explicit messages and images and making arrangements for meeting — Defendant charged with attempting sexual offences against child — Whether messages sent by defendant admissible evidence — Whether defendant having right to privacy in private messages — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8
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Crime
R (McKenzie) v Crown Court at Leeds — [2020] WLR(D) 413
CRIME — Custody time limit — Extension — Claimant remanded in custody awaiting trial on indictment — Jury trials paused to enable appropriate precautions to be put in place with respect to Coronavirus pandemic — Protocol isued for handling custody time limit cases — Judge granting prosecution application to extend custody time limit and setting review and trial date — Whether ruling lawful — Whether claimant’s right to access to justice curtailed — Whether right to jury trial circumscribed — Whether suspension of jury trials for indefinite period by listing decision “good and sufficient cause” for purposes of extending custody time limit — Whether Protocol lawful — Prosecution of Offences Act 1985 (c 23), s 22 (as substituted by Crime and Disorder Act 1998 (c 37, s 43(2))
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Crime
R v Lamb (Dylan John) — [2020] WLR(D) 406
CRIME — Sentence — Sexual offences — Sentencing historic cases— — Application of principle of “measured reference” as affecting imposition of sentences for historic sexual offences by reference to contemporary sentencing practice
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Crime
Zelenko v Prosecutor General’s Office of the Republic of Latvia — [2020] WLR(D) 403
EXTRADITION — Appeal — Jurisdiction — Judgment or order — Requested person appealing district judge’s refusal to bar extradition — High Court order requiring provision of appropriate undertaking as to medical treatment by requesting state failing which appeal would stand allowed — Requesting state providing responses to Crown Prosecution Service in time to enable compliance with order but CPS failing to comply by time ordered — Whether jurisdiction to extend time for requesting state to comply with order — Whether discretion to extend time to be exercised in same way as discretion to grant relief from sanctions in civil cases — CPR rr 3.1(2)(a), 3.9(1) — Crim PR r 50.17(6)(a)
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Crime
R (Mohamed) v Waltham Forest London Borough Council (Secretary of State for Housing, Communities and Local Government intervening) — [2020] 1 WLR 2929
HOUSING — Private rented sector — Licensing of houses — Offence of having control of or managing unlicensed house in multiple occupation — Whether strict liability offence — Housing Act 2004 (c 34), s 72(1)
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Crime
R v Hilton — [2020] 1 WLR 2945
CRIME — Sentence — Confiscation order — Court making confiscation order against defendant with half share in property — Whether court required to give joint owner of property opportunity to make representations as to whether confiscation order should be made — Proceeds of Crime Act 2002 (c 29), s 160A(2) (as inserted by Serious Crime Act 2015 (c 9) s 24)
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Employment
Safeway Ltd v Newton — [2020] WLR(D) 415
DISCRIMINATION — Sex — Equal pay — Pension scheme — Scheme providing retirement age of 65 for men and 60 for women — Members informed retirement ages for men and women to be equalised at 65 taking effect in 1991 — Deed implementing amendment of scheme from 1991 executed in 1996 — Whether such enactment constituting effective domestic law measure implementing EC Treaty obligation with respect to future pensionable service — Whether jurisprudence as to effective measure to implement applicable Treaty obligation requiring measure to be adopted by pension scheme itself — EC Treaty, art 119 — Pensions Act 1995 (c 26), s 62
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Employment
AFMB Ltd v Raad van bestuur van de Sociale verzekeringsbank — [2020] WLR(D) 417
EMPLOYMENT — Contract — Migrant workers — International long-distance lorry drivers, resident in The Netherlands, normally working in other EU or EFTA states — Dutch transport undertaking recruiting drivers and exercising authority over drivers — Drivers entering into employment contracts with Cypriot undertaking — Cypriot undertaking paying wages pursuant to agreement with Dutch undertaking — Whether “employer” Dutch or Cypriot undertaking — Council Regulation (EEC) No 1408/71, art 14(2)(a) — Parliament and Council Regulation (EC) No 883/2004, art 13(1)(b)
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European Union
Czech Republic (supported by Kingdom of the Netherlands, intervening) v European Commission — [2020] WLR(D) 409
EUROPEAN UNION — Union’s own resources — Financial liability of member states — Member state requesting to be released from obligation to make own resources available — Letter from European Commission informing member state that requirements for being release from obligation not met and requesting payment of sum — General Court declaring member state’s action against Commission inadmissible — Member state appealing — Whether Commission’s letter constituting “actionable measure” — Whether member state having effective judicial protection — Council Regulation (EC, Euratom) No 1150/2000, art 17(2) — Charter of Fundamental Rights of the European Union, art 47 — FEU Treaty, art 263FEU
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Family
Holt v Holley and Steer Solicitors — [2020] WLR(D) 414
Limitation — Tort — Negligence — Professional negligence — Claimant asserting that former solicitors negligent in failing to obtain evidence as to value of assets in course of divorce proceedings — Claim struck out as time-barred — Whether claim accruing at end of financial remedies hearing or when judgment handed down — Limitation Act 1980 (c 58), ss 2, 5
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Family
In re M (A Child) — [2020] WLR(D) 419
CHILDREN — Wardship — Jurisdiction — Mother applying for wardship order over British national child living in Algeria — Judge invoking inherent jurisdiction to order return of child for assessment of her best interests — Whether jurisdiction applicable to child neither habitually resident not present in United Kingdom — Whether threshold for invoking jurisdiction substantive “compelling circumstances” or merely procedural — Whether judge right to order return of child
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Family
Villiers v Villiers (Secretary of State for Justice intervening) — [2020] 3 WLR 171
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Matrimonial matters — Husband issuing divorce proceedings in Scotland without seeking any financial order — Wife subsequently applying for maintenance in England — Whether wife’s application to be stayed on grounds Scottish court first seised — Whether English court having residual discretion to stay maintenance application on grounds of forum non conveniens — Whether removal of any such discretion ultra vires — Whether divorce proceedings and maintenance application “related actions” — European Communities Act 1972 (c 68), s 2(1)(2) (as amended by Legislative and Regulatory Reform Act 2006 (c 51), s 27(1)(a) and European Union (Amendment) Act 2008 (c 7), ss 3, 8, Sch, Pt 1) — Matrimonial Causes Act 1973 (c 18), s 27 (as amended by Domestic Proceedings and Magistrates’ Court Act 1978 (c 22), s 63 and Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484), reg 9, Sch 7, para 6(2)) — Civil Jurisdiction and Judgments Act 1982 (c 27), s 49 — Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, Sch 6 — Council Regulation (EC) No 4/2009, art 13
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Family
In re L (A Child) — [2020] 1 WLR 2919
ADOPTION — Disclosure of information — Notification of possible father — Mother wishing child relinquished at birth to be placed for adoption without notice to possible father — Whether possible father to be notified of child’s birth — Whether paternity of child to be determined by DNA testing of possible father — Whether sibling testing appropriate — Whether balance of competing Convention rights in favour of paternity testing — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8
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Public law
R (M) v Newham London Borough Council — [2020] PTSR 1077
LOCAL GOVERNMENT — Homeless person — Suitability of accommodation — Housing authority providing claimant with alternative temporary accommodation as result of family’s increased needs — Temporary accommodation found to be unsuitable on review — Family continuing to live in accommodation for almost two years — Whether authority’s duty to provide suitable accommodation discharged — Housing Act 1996 (c 52), ss 193(2)
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Public law
R (Raja) v Redbridge London Borough Council — [2020] WLR(D) 410
Local Government — Community care services — Persons in need of “care and support” — Claimants challenging lawfulness of local authority’s refusal to provide urgent overnight care pending full reassessment of needs and review of current care plan — Whether discretionary statutory power to meet urgent care needs applicable pending reassessment — Whether local authority’s sole justifiable response being provision of urgent interim night-time care — Care Act 2014 (c 23), ss 19(3), 27
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Public law
Naturschutzbund Deutschland - Landesverband Schleswig-Holstein eV v Kreis Nordfriesland — [2020] WLR(D) 404
ENVIRONMENT — Pollution — Environmental liability — “Protection area” — Corporation operating pumping station in public interest pursuant to statutory assignment of tasks — Conservation organisation requesting measures to limit and remedy alleged damage to protected birds — Meaning of “normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators” — Meaning of “occupational activity” — Parliament and Council Directive 2004/35/EC, Annex I, art 2(7)
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Public law
R (AC (Algeria)) v Secretary of State for the Home Department — [2020] 1 WLR 2893
IMMIGRATION — Deportation order — Detention pending deportation — Claimant foreign criminal detained pursuant to Secretary of State’s directions pending deportation — First-tier Tribunal granting bail subject to provision of suitable accommodation — Claimant remaining in detention for nearly 14 months due to Secretary of State’s failure to provide such accommodation — Judge finding deportation could not be effected within reasonable period but allowing grace period for Secretary of State to arrange provision of accommodation — Whether grace period too long
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Public law
R (Kaitey) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) — [2020] WLR(D) 401
IMMIGRATION — Detention — Detention pending deportation — Immigration bail — Deportation order made in respect of foreign national — Foreign national detained but later released on immigration bail as person “liable to be detained” — Whether person liable to be detained only if power to detain capable of being exercised lawfully at relevant time — Immigration Act 2016 (c 19), s 61(1), Sch 10, para 1(2)(5)
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Trusts and Chancery
Homes of England Ltd v Nick Sellman (Holdings) Ltd — [2020] Bus LR 1163
PARTNERSHIP — Limited liability partnership — Derivative claim — Claimant seeking permission to continue derivative claim brought on behalf of limited liability partnership — Whether when considering if to grant permission court required to apply statutory or common law test — Whether applicable test satisfied — Companies Act 2006 (c 46), ss 261, 263(2) — CPR r 19.9C
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Tower Hamlets London Borough Council v PB — [2020] 4 WLR 94
Mental disorder — Capacity — Deprivation of liberty — Adult suffering from alcohol-related brain damage and dissocial personality disorder — Adult detained in conditions designed to prevent access to alcohol — Whether regime amounting to deprivation of liberty — Whether inability to restrict alcohol intake affecting capacity — Approach to be taken to assessment of capacity of alcohol dependent adults — Mental Capacity Act 2005 (c 9), ss 2(1), 3
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