Civil litigation
Various Airfinance Leasing Cos v Saudi Arabian Airlines Corpn (International Air Finance Corpn, third party) — [2021] WLR(D) 553
PRACTICE — Disclosure — Third party — Court making extended disclosure order — Claimants applying for variation of order to require disclosure of documents on personal mobile telephones owned or used by individuals in senior positions with defendant — Claimants proposing order that defendant request or use best endeavours to request individuals to produce documents on mobile telephones — Defendant opposing application on grounds of absence of “control” of documents and court lacking jurisdiction to make order sought — Whether documents within defendant’s control — Whether court having jurisdiction to make order for disclosure in absence of control — Whether having jurisdiction to make best endeavours order — CPR r 31.8, Pt 51, PD 51U, para 6, Appendix 1, para 1.1
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Civil litigation
AA v BB — [2021] 1 WLR 5378
INJUNCTION — Freezing order — Application — Serious Fraud Office securing criminal restraint orders against defendants preventing disposal of assets — Claimants subsequently granted worldwide freezing orders against defendants — Whether prior restraint order preluding making and continuation of freezing order — Whether existence of prior order precluding finding of real risk of dissipation — Whether freezing orders to be continued
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Civil litigation
Brownlie v FS Cairo (Nile Plaza) LLC — [2021] 3 WLR 1011
PRACTICE — Claim form — Service out of jurisdiction — Claimant injured and her husband killed in motor accident in Egypt — Claimant bringing claim in tort for damages for personal injuries, loss of dependency and loss to husband’s estate — Whether claimant to be granted permission to serve claim form out of jurisdiction — Whether “damage” sustained within jurisdiction of English court — Whether “damage” including indirect damage — CPR rr 6.36, 6.37, PD 6B, para 3.1(9)(a)
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Land law
Ralph v Ralph — [2021] 4 WLR 128
CONTRACT — Mistake — Common mistake — Rectification — Father and son purchasing house in joint names — Parties forming no common intention as to beneficial ownership of house — Land Registry form indicating beneficial ownership to be shared — Whether form to be rectified for common mistake
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Commercial
Holyhead Marina Ltd v Farrer — [2021] WLR(D) 554
ADMIRALTY — Dock owners — Limitation of liability — Statutory provision allowing dock owners to limit liability for loss or damage to vessel — Definition of “dock” including “piers, stages, landing places and jetties” — Quantum of limit assessed by reference to tonnage of largest ship in area over which dock owners discharging functions — Claimant lessee of marina made up of floating pontoons seeking to limit liability following storm damage to craft moored in marina — Whether marina within scope of statutory definition — Whether limitation of liability applicable — Merchant Shipping Act 1995 (c 21), s 191(2)(3)(9)
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Commercial
The Software Incubator Ltd v Computer Associates UK Ltd — [2021] Bus LR 1442
AGENCY — Commercial agent — Contract — Claimant agent acting for defendant principal in negotiating supply of software product — Product supplied to customers electronically, not on any tangible medium and accompanied by grant of perpetual licence — Whether “sale” of “goods” — Commercial Agents (Council Directive) Regulations 1993 (SI 1993/3053) — Council Directive 86/653/EEC, art 1(2)
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Commercial
Peek & Cloppenburg KG v Peek & Cloppenburg KG — [2021] Bus LR 1485
FAIR TRADING — Advertising — Unfair commercial practices — Two companies independent of each other trading under same company name — One trader launching advertising campaign by publication of article in magazine containing images of trader’s premises and goods — Trader and publisher of magazine organising campaign jointly to promote both businesses — Trader not paying for promotional article — Covert advertising by use of editorial content to promote business prohibited where not clear to consumer that trader paying for promotion — Whether provision of non-monetary benefits by trader to advertiser constituting “payment” — Whether such benefits constituting consideration for promotion — Parliament and Council Directive 2005/29/EC, Annex I, point 11
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Commercial
Shanghai Shipyard Co Ltd v Reignwood International Investment (Group) Co Ltd — [2021] 1 WLR 5408
GUARANTEE — Construction — Demand or surety guarantee — Guarantee to support buyer’s obligation to pay final instalment of shipbuilding contract — Builder claiming under guarantee when final payment not made — Guarantor claiming sums not due unless and until arbitration award made — Whether demand guarantee or surety guarantee — Whether guarantor entitled to refuse payment under guarantee pending outcome of arbitration only if arbitration commenced before demand made
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Trusts and Chancery
In re ipagoo LLP — [2021] Bus LR 1469
INSOLVENCY — Administration — Distribution of client money — Regulations requiring electronic money institutions to safeguard funds received in exchange for electronic money — Regulations also providing for electronic money holders to be paid from asset pool in priority to other creditors following insolvency event — Whether Regulations creating statutory trust in favour of money holders — Whether funds left unprotected because of institution’s failure to comply with safeguarding obligations forming part of asset pool — Electronic Money Regulations 2011 (SI 2011/99), regs 20, 21, 22, 24
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Crime
R v Murphy (Robert) — [2021] 4 WLR 129
CRIME — Evidence — Interview — Defendant’s failure to mention fact relied on in defence — Defendant relying on legal advice as reason to remain silent — Judge failing to give direction that defendant’s particular circumstances to be taken into account — Whether failure to give full adverse inference direction affecting safety of conviction — Criminal Justice and Public Order Act 1994 (c 33), s 34
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Crime
R v Adams (Thomas) — [2021] WLR(D) 556
CRIME — Crime and disorder — Serious crime prevention order — Defendant convicted of conspiracies relating to criminal property, sentenced and confiscation order imposed — Crown applying for serious crime prevention order when not otherwise “dealing with” defendant in relation to serious offences — Whether Crown Court having jurisdiction to impose order — Whether Crown Court having power to vary time limit for making application retrospectively — Serious Crime Act 2007 (c 27), s 19 — Crim PR rr 31.3(2), 31.11(a)
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Crime
Mansfield v Director of Public Prosecutions — [2021] WLR(D) 555
CRIME — Abuse of process — Jurisdiction — Defendant found in possession of cannabis and bladed article — Police indicating that caution would be administered — Defendant making admissions on basis of indication — Police reconsidering and charging defendant — Defendant applying for stay of proceedings as abuse of process — Whether district judge having jurisdiction to determine application — Whether proceedings to be stayed as abuse of process
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Crime
R v Douglas (Jerome) — [2021] 4 WLR 126
PRISONS — Discipline — Independent adjudicator — Prisoner charged with criminal offence of unlawful possession of mobile phone — Prisoner also charged by prison authorities with disciplinary charge of possession of phone — Independent adjudicator sentencing prisoner to 21 days’ imprisonment on disciplinary charge — Prisoner subsequently sentenced to 18 months’ imprisonment on criminal charge — Whether decision of independent adjudicator in excess of jurisdiction — Whether to be quashed — Senior Courts Act 1981 (c 54), s 45(4)
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Crime
R v O’Rourke (Connor) — [2021] 4 WLR 125
CRIME — Sentence — Protecting public from dangerous offenders — Assessment of dangerousness — Guidance on approach to determining question of dangerousness — Sentencing Act 2020 (c 17), ss 30, 52(2)(3)
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Family
SS v MCP — [2021] WLR(D) 558
CHILDREN — Custody rights — Jurisdiction — Allegation that mother wrongfully removing child born in England to India — Father applying under inherent jurisdiction for return of child — Mother challenging jurisdiction of English court on basis child habitually resident in non-EU member state — Whether English courts retaining jurisdiction — Whether sufficiently compelling circumstances enabling courts to exercise protective jurisdiction — Family Law Act 1986 (c 55), ss 1–3 — Council Regulation (EC) No 2201/2003, arts 10, 14 — Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children 1996 (Cm 7727), art 7
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Family
BT v CU — [2021] WLR(D) 557
MARRIAGE — Financial provision — Final order — Financial provision order on divorce requiring husband to make series of lump sum payments to wife — Husband retaining business providing school meals — Value of husband’s business falling dramatically in four months due to Covid-19 pandemic — Husband seeking to set aside order in part — Whether application to be granted — Whether alternative remedies available — Whether parties to be anonymised in judgment — Matrimonial Causes Act 1973 (c 18), s 31(2)(d) — FPR r 9.9A
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Family
ES v LS — [2021] WLR(D) 550
CHILDREN — Custody rights — Breach — Mother removing children to England from Latvia and father taking no action to seek their return for 16 months — Father’s application for summary return defended on ground children “now settled” in England — Whether settlement requiring children to be happy and free from abuse — Whether date on which settlement to be demonstrated date of commencement of proceedings or date of trial — Child Abduction and Custody Act 1985 (c 60), Sch 1, art 12
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Family
In re Yorston — [2021] 4 WLR 127
MARRIAGE — Divorce — Behaviour — Identical particulars of unreasonable behaviour set out in 28 online divorce petitions — Whether identical wording rendering petitions improper — Whether petitions to be dismissed — Matrimonial Causes Act 1973 (c 18), s 1
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Family
Lancashire County Council v M (Lancashire Clinical Commissioning Group intervening) — [2021] WLR(D) 551
CHILDREN — Care proceedings — Threshold — Local authority seeking care order in respect of child with serious disabilities — Psychological assessment of parents ordered following private care group’s accusations of “combative interference” with staff — Whether litigation beneficial to child — Proper application of test of whether care “not that which it would be reasonable to expect a parent to give” — Children Act 1989 (c 41), s 31(2)
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Public law
R (AR) v Waltham Forest London Borough Council — [2021] PTSR 1777
CHILDREN — Young offender — Secure accommodation — 16-year-old claimant arrested and charged with offences — Police requesting local authority to provide secure accommodation for claimant overnight before court appearance next morning — Authority unable to provide secure accommodation as nearest provider many miles away — Whether systemic failure breaching statutory duties — Police and Criminal Evidence Act 1984 (c 60), s 38(6) — Children Act 1989 (c 41), ss 21(2)(b), 22G
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Family
A v A (Practice Note) — [2021] 1 WLR 5393
MARRIAGE — Divorce — Financial provision — Family Law Arbitration Financial Scheme — Parties agreeing to submit dispute in financial remedy proceedings to arbitration — Wife seeking to hold husband to terms of arbitral award — Husband seeking to challenge award and applying for leave to appeal — Guidance given on correct procedure where one party challenging and other party seeking to enforce award — Matrimonial Causes Act 1973 (c 18), s 25 — Arbitration Act 1996 (c 23), ss 68, 69 — FPR Pt 30
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IP and Media
Ferrari SpA v Mansory Design Holding GmbH — [2021] WLR(D) 545
DESIGN — Unregistered Community design — Validity — Claimant presenting limited edition racing car to public in press release including photographs of car — Defendant producing and marketing accessories designed to alter appearance of claimant’s road-going model to resemble racing car — Claimant claiming protection of unregistered European Union designs in respect of components of body parts of racing car — Claimant submitting that designs “made available to the public” by virtue of photographs of cars in press release — Whether making available images of product to public constituting making available design of part of product to public — Extent to which appearance of part having to be independent of product as a whole in order to examine whether appearance having “individual character” — Council Regulation (EC) No 6/2002, arts 3(a), 4, 6(1)(a), 11(2)
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Public law
R (Montero) v Lewisham London Borough Council — [2021] PTSR 1725
LOCAL GOVERNMENT — Social housing — Allocation scheme — Claimant applying for social housing on basis of current family residence being overcrowded — Local authority’s allocation scheme restricting placement on allocation list to persons resident in area for minimum of five years — Whether local authority affording claimant “reasonable preference” in social housing allocation — Whether scheme disqualifying person in reasonable preference category on basis of past residence rule lawful — Whether “exceptional circumstances” discretion ought to have been exercised in claimant’s favour — Whether effect of past residence rule being disqualification from allocation application limited to period of six months — Housing Act 1996 (c 52), ss 166A, 160ZA
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Public law
R (Gardiner) v Hertsmere Borough Council — [2021] PTSR 1761
PLANNING — Development — Community infrastructure levy — Self-build exemption — Claimant applying for retrospective planning permission for residential development and for benefit of self-build exemption from community infrastructure levy in respect of that development — Local authority granting planning permission but refusing exemption — Whether authority erring in law — Whether possible to claim self-build exemption where planning permission sought retrospectively — Town and Country Planning Act 1990 (c 8), s 73A — Community Infrastructure Levy Regulations 2010 (SI 2010/948), regs 7(5), 9, 31 54A, 54B — Community Infrastructure Levy (Amendment) (England) (No 2) Regulations 2019 (SI 2019/1103)
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Public law
AB v Disclosure and Barring Service — [2021] WLR(D) 552
TRIBUNAL — Upper Tribunal — Jurisdiction — Independent safeguarding authority including person on children’s barred list — Authority determining to retain name on list on subsequent review — Person appealing against decision to retain name on barred list — Upper Tribunal concluding retention on list to be inappropriate and directing removal — Whether tribunal having jurisdiction to consider appropriateness of listing — Whether power of tribunal limited to identifying error of law or fact by authority — Safeguarding Vulnerable Groups Act 2006 (c 47), s 4(5)(6)
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Public law
R (Majera) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) — [2021] 3 WLR 1075
IMMIGRATION — Detained person — Immigration bail — Court granting immigration bail to detainee — Court’s order failing to include requirement mandated by statute — Whether order void and of no effect — Whether open to Secretary of State to act in manner inconsistent with order without first obtaining variation or setting aside of order — Immigration Act 1971, Sch 2, para 22(1A), Sch 3, para 2(5)
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Public law
R (Mahabir) v Secretary of State for the Home Department — [2021] 1 WLR 5301
IMMIGRATION — Leave to remain — Indefinite leave — First claimant citizen of Trinidad brought to UK as a child and acquiring indefinite leave to remain status — Status lost when first claimant taken back to Trinidad — First claimant marrying and having children in Trinidad — First claimant subsequently acquiring right to restoration of indefinite leave to remain as part of scheme to address Windrush scandal but having to return to UK to access that right — First claimant’s husband and children unable to afford fees for requisite out-of-country application for leave to enter — Claimant returning with one child to whom limited leave to remain subsequently granted on ground that refusal breaching first claimant’s right to family life — Whether Home Secretary’s refusal to waive fees for out-of-country applications unlawful — Whether Home Secretary misinterpreting relevant regulations and own policy — Whether refusal constituting procedural and/or substantive breach of right to family life — Whether unlawfully discriminatory — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14 — Immigration and Nationality (Fees) Regulations 2018 (SI 2018/330), reg 13A
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Public law
R (Gjini) v Secretary of State for the Home Department — [2021] 1 WLR 5336
NATIONALITY — British citizenship — Passport — Claimant obtaining British citizenship and passport on basis of false date, country and place of birth given in asylum claim — Home Secretary revoking claimant's passport — Claimant making fresh application for passport using real place and date and birth — Home Secretary refusing application — Home Secretary further refusing to amend claimant’s naturalisation certificate to accurately reflect real date and place of birth — Whether Home Secretary rationally able to conclude that grounds for refusal made out — British Nationality Act 1981 (c 61), s 40(3)
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Tax
Revenue and Customs Comrs v Candy — [2021] 4 WLR 130
REVENUE — Stamp duty land tax — Repayment — Liability for stamp duty land tax arising following substantial performance of contract for land transaction — Tax repayable if “afterwards” contract for some reason not carried into effect — Taxpayer required to claim repayment by amendment of land transaction return — Provision precluding amendment to return made more than 12 months after filing date — Whether claim for repayment because substantially performed contract not in fact carried into effect constituting exception to time limit — Finance Act 2003 (c 14), s 44(4)(9), Sch 10, para 6(3)
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Tort
RO v Gray — [2021] WLR(D) 549
TORT — Defence — Illegality — Claimant and defendant having altercation — Claimant sustaining serious injuries when defendant deliberately hitting claimant’s van with his car — Defendant convicted and sentenced for dangerous driving and driving while disqualified — Claim for assault and battery — Whether defendant entitled to rely on defence of illegality on basis claimant’s own actions amounting to criminal offences — Correct approach to consideration of illegality defence
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