Civil litigation
Mad Atelier International BV v Manes — [2020] WLR(D) 258
ESTOPPEL — Per rem judicatam — Issue estoppel — Judgment of foreign court — Foreign court giving judgment in claim between claimant and companies wholly owned by defendant controlling shareholder — Claimant subsequently starting proceedings before English court against defendant — Defendant applying to strike out claim on ground of abuse of process because foreign judgment giving rise to issue estoppels — Foreign legal system not having doctrine of issue estoppel — Whether foreign judgment capable of giving rise to issue estoppel before English court — Whether parties or their privies identical in both sets of proceedings where shareholder and wholly-owned companies respectively being defendants — Whether application to be granted
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Civil litigation
Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb — [2020] WLR(D) 256
INJUNCTION — Anti-suit injunction — Restraint of foreign proceedings — Defendant commencing proceedings in Russia — Claimant bringing claim for anti-suit injunction alleging Russian claim brought in breach of agreement to arbitrate in London — Arbitration agreement contained in construction agreement with no choice of law clause — Extent to which choice of London seat indicating arbitration agreement governed by English law — Circumstances in which grant of anti-suit injunction appropriate — Whether injunction to be granted
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Civil litigation
Ocean Prefect Shipping Ltd v Dampskibsselskabet Norden AS (The Ocean Prefect) — [2020] Bus LR 712
EVIDENCE — Expert evidence — Admissibility — Chartered vessel grounding — Marine Accident Investigation Branch producing report following investigation into grounding — Owners seeking to rely on report in arbitration brought against charterers — Parties’ experts making references to report and factual witnesses criticising some of its findings — Charterers and investigation body opposing admission of report into arbitration — Whether rule that report by that body inadmissible in “any judicial proceedings” applicable where relevant proceedings arbitration proceedings — Proper conduct of balancing exercise between interests of justice in disclosure and prejudice to future accident, safety investigation or UK international relations — Relevance of report having been referred to in expert and factual evidence and evidential value of independent and professionally prepared report — Whether court to exercise discretion to grant permission to admit report into arbitration proceedings — Merchant Shipping (Accident Reporting and Investigation) Regulations 2012 (SI 2012/1743), regs 13(5), 14(14)(17)
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Civil litigation
McParland & Partners Ltd v Whitehead (Practice Note) — [2020] Bus LR 699
PRACTICE — Disclosure — Business and Property Courts — Guidance as to application of disclosure pilot — Requirement of cooperation between parties in extended disclosure — CPR Pt 51, Practice Direction 51U
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Civil litigation
Sabbagh v Khoury — [2020] Bus LR 724
INJUNCTION — Jurisdiction to grant — Restraint of foreign proceedings — Whether court having jurisdiction to grant injunction if continued pursuit of foreign arbitration vexatious and oppressive — Whether finding that England natural forum for dispute pre-condition for exercise of jurisdiction — Whether jurisdiction exercisable if dispute falling within arbitration agreement — Whether objection in principle to grant of injunction
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Civil litigation
Kingdom of Spain v London Steam-Ship Owners’ Mutual Insurance Association Ltd (The Prestige) — [2020] 1 WLR 1538
PRACTICE — Discovery — Jurisdiction to order — Claimant obtaining foreign judgment against defendant and registration order from English court — Defendant appealing registration order and seeking disclosure from claimant — Claimant resisting disclosure — Whether CPR providing for disclosure on appeal — Whether order for disclosure inconsistent with policy of European Regulation governing recognition and enforcement of foreign judgments in member states — Whether disclosure to be ordered — CPR rr 31.1(2), 52.20(1)(2), 74.8 — Council Regulation (EC) No 44/2001
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Commercial
OI v Air Nostrum Líneas Aéreas del Mediterráneo SA — [2020] WLR(D) 261
AIRCRAFT — Carriage by air — Compensation and assistance to passengers — Passenger booking connecting flights through single reservation — Airline unilaterally changing reservation in respect of first flight despite that flight going ahead — Passenger still able to catch second flight and not delayed in reaching final destination — Whether entitled to compensation — Parliament and Council Regulation (EC) No 261/2004, art 7
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Commercial
Punch Partnerships (PTL) Ltd v The Highwayman Hotel (Kidlington) Ltd (Office of the Pubs Code Adjudicator intervening) — [2020] WLR(D) 250
ARBITRATION — Award — Serious irregularity — Pubs Code Adjudicator — Tied pub tenant contending terms of new lease offered by landlords unreasonable and referring matter to adjudicator for arbitration — While arbitration ongoing adjudicator in exercise of regulatory function requiring landlords to supply information as to general policy on length of leases — Adjudicator disclosing information to tied tenant in arbitration — Adjudicator subsequently holding terms of proposed lease unreasonable and ordering landlords to offer lease for minimum five-year period — Whether having acquired information adjudicator under obligation to recuse herself — Whether commercially sensitive information obtained by adjudicator in exercise of regulatory function disclosable to party in arbitration — Whether adjudicator having power to order lease of particular length — Whether serious irregularity affecting adjudicator’s award — Small Business, Enterprise and Employment Act 2015 (c 26), s 43(4) — Arbitration Act 1996 (c 23), s 68 — Pubs Code etc Regulations (SI 2016/790), reg 32
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Commercial
Micula v Romania (European Commission intervening) — [2020] Bus LR 659
ARBITRATION — Award — Enforcement — Claimants registering ICSID award as judgment of High Court — European Commission issuing Final Decision prohibiting implementation of award on grounds it would constitute state aid — Enforcement of registration order stayed pending proceedings for annulment of Final Decision — General Court annulling Final Decision — Commission intending to appeal — Whether stay on enforcement of award to be lifted — Whether EU duty of sincere co-operation precluding enforcement of award — Whether English court having power to stay registered ICSID award — Whether duty of sincere co-operation applying to United Kingdom’s obligations under ICSID Convention — Arbitration (International Investment Disputes) Act 1966 (c 41), ss 1(2), 2(1) — EU Treaty, art 4(3)EU — FEU Treaty, art 351FEU — Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965, arts 54(1), 55
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Land law
Borwick Development Solutions Ltd v Clear Water Fisheries Ltd — [2020] WLR(D) 265
ANIMAL — Fish — Right to possession — Claimant selling commercial fishery — Sale not including transfer of fish stocks — Claimant asserting ownership of fish stocks and bringing claim in conversion — Whether fish in commercial fishery continuing to be wild animals and therefore not subject to absolute property rights — Whether claimant having qualified property in fish per industriam — Whether such property passing on transfer of fishery — Whether claimant having possessory title on which to found conversion claim
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Commercial
AIC Ltd v Federal Airports Authority of Nigeria — [2020] Bus LR 627
ARBITRATION — Award — Enforcement — Defendant challenging New York Convention award in Nigerian courts — Claimant seeking enforcement of award in English court — Whether application to set aside award still pending in Nigerian — Whether English court having jurisdiction to adjourn decision on enforcement — Whether defendant to provide security as condition of adjournment — Arbitration Act 1996 (c 23), s 103(5)
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Commercial
PJSC Commercial Bank Privatbank v Kolomoisky — [2020] 2 WLR 993
CONFLICT OF LAWS — Jurisdiction under European Convention — Action against several defendants — Claimant contending court having jurisdiction over Swiss defendants on basis of close connection to claim against English co-defendants — Whether abuse of Convention to bring claim against English defendants with sole object of founding jurisdiction against foreign co-defendants — Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2007), art 6(1)
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Costs
King v City of London Corpn — [2020] 1 WLR 1517
COSTS — Detailed assessment — Offer to settle — Claimant offering to settle detailed assessment proceedings — Offer expressed to be exclusive of interest — Whether valid Part 36 offer — CPR r 36.5(4)
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Crime
R v Barton — [2020] WLR(D) 264
CRIME — Conspiracy — Conspiracy to defraud — Prosecution alleging first defendant assisted by second defendant dishonestly exploited wealthy residents of luxury nursing home to profit from them — Whether acting “dishonestly” — Proper approach to dishonestly
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Crime
R v Gillings (Keith) — [2020] 4 WLR 67
CRIME — Evidence — Character — Correct approach where judge admitting evidence of previous convictions to show defendant’s propensity to commit offences — Criminal Justice Act 2003 (c 44), ss 101(1)(d)(3), 103(1)(2)(3)
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Crime
R v N — [2020] 4 WLR 64
CRIME — Summing up — Judge’s directions — Crown advancing case of wounding with intent against defendant on joint enterprise basis — Judge failing to provide jury with written directions or route to verdict — Whether judge properly directing jury on joint enterprise — Whether answer to jury question curing any deficiency in oral direction on joint enterprise — Whether absence of written directions creating significant risk of jury confusion rendering conviction unsafe
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Crime
R v Gabbai (Edward) — [2020] 4 WLR 65
CRIME — Practice — Trial — Judge directing complaints by two complainants cross-admissible between counts without bad character notice being served by Crown — Whether defendant entitled to have case decided on basis evidence for one count not to be used as evidence for other count — Criminal Justice Act 2003 (c 44), s 101(1)
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Crime
R v Thomas (Dean) — [2020] 4 WLR 66
CRIME — Practice — Intermediary — Proper approach to appointment of intermediary to assist defendant to participate in trial — Criminal Practice Directions 2015, paras 3F.12, 3F.13, 3F.16, 3F.17
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Crime
Bain v The Queen — [2020] WLR(D) 248
THE BAHAMAS — Crime — Practice — Defendant dispensing with legal representation — Guidance on whether to allow trial to continue
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Crime
R v Abbott (Scott) (Secretary of State for Justice intervening) — [2020] WLR(D) 245
CRIME — Sentence — Surcharge order — Proper approach to calculating surcharge orders — Criminal Justice Act 2003 (c 44) (as amended by Domestic Violence, Crime and Victims Act 2004 (c 28), ss 12, 14(1) and as variously amended), s 161A, Sch 8, paras 9, 10 — Criminal Justice Act 2003 (Surcharge) (Amendment) Order (SI 2020/310), art 3
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Employment
Idu v East Suffolk and North Essex NHS Foundation Trust — [2020] ICR 683
EMPLOYMENT — Unfair dismissal — Disciplinary proceedings — Consultant surgeon alleged to have refused to accept management instructions — Whether professional misconduct — Whether disciplinary panel required to have independent medically qualified member
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Employment
Safeway Ltd v Newton — [2020] ICR 673
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 having retroactive effect — Whether principle of equal pay requiring men and women to be treated as having retirement age of 60 between 1991 and 1996 — EC Treaty, art 119
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Employment
Royal Mail Group Ltd v Jhuti — [2020] ICR 731
EMPLOYMENT — Protected disclosure — Unfair dismissal — Employee informing line manager of suspected misuse of incentive scheme — Line manager in response pretending employee’s performance poor — Employee dismissed by different manager in ignorance of true facts in belief employee’s performance poor — Whether employer’s “reason for … dismissal” determined by reference only to motivation of decision-taker — Whether manipulation by line manager attributable to employer — Whether protected disclosure reason for dismissal — Employment Rights Act 1996 (c 18), ss 47B, 103A (as inserted by Public Interest Disclosure Act 1998 (c 23), ss 2, 5)
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Employment
National Union of Professional Foster Carers v Certification Officer — [2020] ICR 607
TRADE UNION — Application to list — Foster carers — Certification Officer refusing application to list on ground foster carers not “workers” — Whether correct — Whether infringement of Convention rights to form and join trade union and not be discriminated against — Trade Union and Labour Relations (Consolidation) Act 1992 (c 52), ss 1, 3, 296 — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 11, 14
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Employment
Gray v Mulberry Co (Design) Ltd — [2020] ICR 715
DISCRIMINATION — Religion or belief — Philosophical belief — Employee holding belief as to copyright on own designs — Employee dismissed for refusing to sign copyright agreement — Whether “philosophical belief” — Complaint of indirect discrimination — Whether requirement to sign agreement putting others sharing belief at disadvantage — Equality Act 2010 (c 15), ss 4, 10, 19
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Employment
Coletta v Bath Hill Court (Bournemouth) Management Co Ltd — [2020] ICR 703
EMPLOYMENT — Wages — Deductions — Employee claiming failure to pay national minimum wage for 15 years — Claim for series of unauthorised deductions — Whether relevant provision prescribing period of limitation — Whether recovery limited to six years’ arrears — Limitation Act 1980 (c 58), ss 9, 39 — Employment Rights Act 1996 (c 18), s 23
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Employment
Britliff v Birmingham City Council — [2020] ICR 653
DISCRIMINATION — Disability — Claimant seeking to rely on international Convention — Whether having direct effect in domestic law — European Communities Act 1972 (c 68), s 2 — European Communities (Definition of Treaties) (United Nations Convention on Rights of Persons with Disabilities) Order 2009 (SI 2009/1181) — United Nations Convention on Rights of Persons with Disabilities (2006)
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European Union
R (Tesco Stores Ltd) v Birmingham Magistrates’ Court — [2020] WLR(D) 251
FOOD AND DRUGS — Food safety — “use by” date — Use by date — Claimant offering food items for sale after expiry of labelled “use by” date — Local authority charging claimant with offences of placing unsafe food on the market — Whether food conclusively deemed unsafe after use by date — Whether such presumption rebuttable by evidence that food in fact safe — Parliament and Council Regulation (EC) No 178/2002, art 14 — Parliament and Council Regulation (EU) No 1169/2011, art 24 — Food Safety and Hygiene (England) Regulations 2013 (SI 2013/2996) reg 19(1), Sch 2
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Family
In re L (Adoption: Identification of Possible Father) — [2020] WLR(D) 262
CHILDREN — Care proceedings — Identification of possible father — Mother relinquishing baby at birth for adoption — Whether possible father to be tested for identification and notification purposes — Mother resisting DNA paternity testing of possible father — Whether sibling testing appropriate — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8
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Family
R (TT) v Registrar General for England and Wales (AIRE Centre intervening) — [2020] WLR(D) 254
REGISTRATION OF BIRTHS AND DEATHS — Registration of mother — Transgender male — Female-born claimant undergoing gender transition and obtaining gender recognition certificate as male — First claimant subsequently giving birth to second claimant child — Registry Office refusing to register claimant as child’s father on birth certificate — Whether transgender man giving birth to child “mother” for purposes of domestic law — Whether refusal to register such man as father discriminatory and disproportionate interference with Convention rights — Whether declaration of incompatibility to be granted — Human Rights Act 1998 (c 42), s 4, Sch 1, Pt I, art 8 — Gender Recognition Act 2004 (c 7), ss 9, 12
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Family
MS v RS — [2020] WLR(D) 246
CHILDREN — Declaration of parentage — Presumption of legitimacy — Father’s application for declaration of non-parentage — Applicable burden of proof when rebutting common law presumption of legitimacy — Whether in children’s best interests for court to determine application — Family Law Reform Act 1969 (c 46), s 26 — Family Law Act 1986 (c 55), s 55A (as inserted by Child Support, Pensions and Social Security Act 2000 (c 19), s 83(2))
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IP and Media
Planetart llc v Photobox Ltd — [2020] WLR(D) 266
Trade mark — Proprietor’s rights — Trade mark with reputation — Claimants launching mobile application providing photo printing services — Defendants launching application providing similar services — Claimants bringing claim for trade mark infringement — Whether defendants’ acts detrimental to distinctive character or repute of claimants’ trade mark — Whether defendants’ use without due cause — Trade Marks Act 1994 (c 26), s 10(3) (as amended by Trade Marks (Proof of Use, etc) Regulations 2004 (SI 2004/946), reg 7(2))
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IP and Media
A v B — [2020] WLR(D) 257
Trade mark — Proprietor’s rights — Prevention of “use” — Individual importing large consignment of ball bearings generally used in heavy industry — Bearings delivered to third party for export — Importer receiving carton of cigarettes and bottle of brandy as remuneration — Whether importer using trade mark “in the course of trade” — Parliament and Council Directive 2008/95/EC, art 5(1), (3)(b),(c)
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IP and Media
Gömböc Kutató, Szolgáltató és Kereskedelmi Kft v Szellemi Tulajdon Nemzeti Hivatala — [2020] WLR(D) 247
EUROPEAN UNION — Reference for a preliminary ruling — Trade marks — Directive 2008/95/EC — Refusal or invalidation of registration — Three-dimensional mark — Article 3(1)(e)(ii) and (iii) — Sign consisting exclusively of the shape of goods which is necessary to obtain a technical result — Sign consisting of the shape which gives substantial value to the goods — Consideration of the perception of the relevant public
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Public law
General Medical Council v Zafar — [2020] WLR(D) 263
MEDICAL PRACTITIONER — Medical Practitioners Tribunal — Fitness to practise — Disciplinary proceedings against doctor committed to suspended prison sentence for contempt of court for dishonesty and recklessness when acting as expert witness — Parties to disciplinary proceedings agreeing not to adduce evidence of Court of Appeal judgment ruling committal sentence unduly lenient — Appeal against tribunal’s decision suspending doctor from register for 12 months — Whether suspension unduly lenient and erasure appropriate sanction — Whether Court of Appeal judgment to be admitted as fresh evidence on appeal — Medical Act 1983 (c 54), ss 40A, 40B (as inserted by General Medical Council (Fitness to Practise and Over-arching Objective) and Professional Standards Authority for Health and Social Care (References to Court) Order (SI 2015/794), art 17(1)) — CPR r 52.21
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Public law
R (Fratila) v Secretary of State for Work and Pensions (AIRE Centre intervening) — [2020] WLR(D) 253
SOCIAL SECURITY — Welfare benefits — Universal credit — Claim for universal credit by Romanian national living in United Kingdom with right to reside based on “pre-settled” status — Claim refused by virtue of amendment to social security rules preventing reliance on pre-settled status to meet residence tests on which entitlement to benefit conditional — Whether unlawful discrimination contrary to European Union law — Immigration Act 1971 (c 77), s 3(2) — Welfare Reform Act 2012 (c 5), ss 3(1), 4(1)(c) — Universal Credit Regulations 2013 (SI 2013/376), reg 9(1)(2)(3)(c)(i) (as amended by Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (SI 2019/872), reg 8(3)(d)) — Statement of Changes in Immigration Rules (2020) (HC 120), Appendix EU — FEU Treaty, art 18FEU — Parliament and Council Directive 2004/38/EC, art 24
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Public law
Hampshire County Council v Secretary of State for Environment, Food and Rural Affairs — [2020] WLR(D) 252
COMMONS — Common land — Registration — Interested party applying to de-register airport’s operational area as common land — Inspector finding operational area falling within “curtilage” of terminal building — Whether inspector erring in interpretation of “curtilage” — Whether decision to be quashed — Commons Act 2006 (c 26), Sch 2, para 6
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Public law
R (Sawkill) v Highways England Co Ltd — [2020] WLR(D) 243
STATUTE — Construction — General and specific powers — Powers of entry onto land — Highway authority having power under different statutory provisions — Whether one power more general or specific than other — Whether powers exclusive or overlapping — Whether authority having choice of which power to exercise — Planning Act 2008 (c 29), ss 53(1), 120 — Housing and Planning Act 2016 (c 22), ss 172, 174(3)
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Public law
R (Alliance of Turkish Businesspeople Ltd) v Secretary of State for the Home Department — [2020] WLR(D) 249
IMMIGRATION — Leave to remain — Legitimate expectation — Home Office’s policy on leave to remain for Turkish business people and their dependants — Policy based on Home Office understanding of European Economic Community agreement with Turkey — Secretary of State changing policy to reflect different judicial interpretation of agreement — Whether legitimate expectation that policy would not change — Whether frustration of such expectation justified in public interest — EEC-Turkey Association Agreement (1963), Additional Protocol (1970), art 41(1)
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Public law
Uddin v Secretary of State for the Home Department — [2020] 1 WLR 1562
HUMAN RIGHTS — Respect for family life — Interference with — Unaccompanied asylum-seeking child placed in foster care and continuing to receive benefit of foster care in adulthood — Application for leave to remain refused — Whether right to respect for family life engaged — Correct test for establishment of family life — Whether foster care and birth family relationships to be treated differently for purposes of family life assessment — Human Rights Act 1998 (c 42), Sch I, Pt I, art 8
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Public law
Tower Hamlets London Borough Council v Al Ahmed (Shelter intervening) — [2020] 1 WLR 1546
Local Government — Homeless persons — Review of local authority decision — Homelessness applicant seeking permission to appeal against review decision out of time on basis of “good reason” for delay — Whether principles applying to failures to comply with CPR relevant when determining whether “good reason” — Whether applicant having good reason for delay in bringing appeal — Housing Act 1996 (c 52), s 204(2A) (as inserted by Homelessness Act 2002 (c 7), s 18(1), Sch 1, para 17(a))
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Tax
Logfret (UK) Ltd v Revenue and Customs Comrs — [2020] WLR(D) 260
REVENUE — Excise — Duty suspension arrangement — Guarantor, liability of — Revenue assessing guarantor as liable to pay duty in respect of four movements of alcohol — Three consignments never arriving at designated warehouse and fourth arriving some 11 months after dispatch — Whether deemed irregularity giving rise to liability on guarantor to pay duty — Whether movements coming to an end — Whether guarantor satisfying evidential requirements to avoid deemed irregularity — Time limit for satisfying evidential requirements — Excise Goods (Holding, Movement and Duty Point) Regulations 2010 (SI 2010/593) — Council Directive 2008/118/EC, arts 10 (2)-(5), 20(2)
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Tax
Beadle v Revenue and Customs Comrs — [2020] WLR(D) 255
REVENUE — Tax avoidance — Partner payment notice — Revenue issuing partner payment notice following inquiry into partnership’s tax return — Revenue issuing penalty notice for non-payment of part of sum due under partner payment notice — Taxpayer appealing penalty notice — Whether tribunal having jurisdiction in penalty appeal to determine validity of underlying partner payment notice — Whether statutory scheme excluding collateral public law challenge to validity of underlying administrative act — Finance Act 2014 (c 26), ss 219–233, Sch 32, 33
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Tort
Allen (trading as David Allen Chartered Accountants) v Pollock — [2020] 2 WLR 1070
TORT — Cause of action — Inducing breach of contract — Defendant offering job to claimant’s employee in reliance on erroneous legal advice as to enforceability of post-termination restrictive covenants in employee’s contract with claimant — Employee in fact acting in breach of contract by joining defendant — Whether defendant liable to claimant for inducing breach of contract — Whether defendant having sufficient state of mind to ground liability in tort for inducing breach of contract
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Trusts and Chancery
Homes of England Ltd v Nick Sellman (Holdings) Ltd — [2020] WLR(D) 259
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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