Civil litigation
Husayn v Foreign and Commonwealth Office — [2021] 4 WLR 39
CONFLICT OF LAWS — Tort — Applicable law — Claim against defendants alleging vicarious liability for torts committed by others during detention of claimant in secret facilities in six countries outside United Kingdom — Whether applicable law that of England and Wales or countries in which alleged tortious events occurring — Whether general rule as to applicable law displaced — Whether applying law of six countries contrary to public policy — Private International Law (Miscellaneous Provisions) Act 1995 (c 42), ss 11, 12, 14
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Tort
R (Jalloh (formerly Jollah)) v Secretary of State for the Home Department — [2021] AC 262
TORT — Cause of action — False imprisonment — Secretary of State unlawfully imposing curfew restriction on foreign national — Curfew backed by electronic tagging and warning of criminal sanctions — Whether curfew constituting imprisonment for purposes of tort — Whether concept of imprisonment at common law to be aligned with Convention rights concept of deprivation of liberty — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
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Civil litigation
BXB v v Watch Tower and Bible Tract Society of Pennsylvania — [2021] WLR(D) 154
VICARIOUS LIABILITY — Jehovah’s witness elder — Sexual abuse — Elder raping member of congregation at his home — Whether defendant governing body and trustees of congregation vicariously liable for rape when elder not performing religious activity at time
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Civil litigation
Various claimants v G4S plc — [2021] WLR(D) 151
PRACTICE — Claim form — Amendment — Claimants issuing claim but not serving it until nine months later — Claim form amended in intervening period by addition of new claimants — Whether addition ineffective — CPR rr 3.4, 17.1
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Civil litigation
Ness Global Services Ltd v Perform Content Services Ltd — [2021] 1 WLR 1643
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Non-exclusive jurisdiction — Application to stay English proceedings in favour of prior proceedings in non-member state — Regulation providing power to stay proceedings if English court’s jurisdiction “based on” defendant’s domicile — Whether stay permitted if English court also having jurisdiction pursuant to non-exclusive jurisdiction agreement — Parliament and Council Regulation (EU) No 1215/2012, arts 4, 25, 33
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Civil litigation
PJSC Tatneft v Bogolyubov — [2021] 1 WLR 1612
PRACTICE — Disclosure — Legal professional privilege — Claimant resisting disclosure of communications on basis of legal professional privilege — Whether privilege waived — Whether reference to subject matter of communication capable of being sufficient to waive privilege — Whether negative assertion capable of being sufficient to waive privilege — Proper approach to determining scope of waiver
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Commercial
X v Kuoni Travel Ltd (ABTA Ltd intervening) — [2021] WLR(D) 160
CONTRACT — Breach — Improper performance — Claimant staying in hotel as part of package holiday booked with defendant travel organiser — Claimant raped on hotel premises by hotel employee — Whether employee “supplier of services” — Whether improper performance of contract due to event which organiser and/or supplier of services could not foresee or forestall — Travel, Package Holidays and Package Tours Regulations 1992, reg 15 — Council Directive 90/314/EEC, art 5
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Commercial
IS Prime Ltd v TF Global Markets (UK) Ltd — [2021] Bus LR 493
ARBITRATION — Stay of judicial proceedings — Arbitration agreement — Claimant and defendant participating in non-binding dispute resolution process — Claimant before completion of process commencing court proceedings — Dispute resolution process and court proceedings having common issues — Defendant contending dispute resolution process having hallmarks of arbitration and that claimant’s participation in it giving rise to agreement to submit to arbitration — Whether agreement to submit to non-binding process capable of constituting “arbitration agreement” — Whether court obliged to stay claimant’s proceedings — Senior Courts Act 1981 (c 54), s 49(3) — Arbitration Act 1996 (c 23), ss 6(1), 9, 58
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Commercial
Motacus Constructions Ltd v Paolo Castelli SpA — [2021] WLR(D) 159
ADJUDICATION — Adjudication decision — Enforcement — Construction contract including exclusive jurisdiction clause in favour of foreign court — Claimant applying for summary judgment to enforce adjudicator’s decision — Defendant contending court required under international Convention on jurisdiction agreements to suspend or dismiss enforcement proceedings — Whether adjudication and enforcement of decision “interim measures of protection” and therefore not governed by Convention — Whether decision to be enforced — Civil Jurisdiction and Judgments Act 1982 (c 27), Sch 3F, arts 6, 7 — Scheme of Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649), Sch, para 23
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Crime
R v Brehmer (Attorney General’s Reference) — [2021] WLR(D) 163
CRIME — Homicide — Sentence — Early plea of guilty to unlawful manslaughter — Acquittal of murder — Judge satisfied as to intent for murder so that sentence to be on basis of loss of self-control — Whether sentence disproportionate to what would have been sentence for murder — Whether judge erred in balancing of aggravating and mitigating circumstances — Whether discount for early plea excessive
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Crime
R v Lea (Nicholas) — [2021] 4 WLR 38
CRIME — Sentence — Sexual offences — Sexual harm prevention order — Whether need for restrictions required to be demonstrated on evidence to be valid — Whether necessary for judge always to explain basis on which statutory criteria found to have been satisfied
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Crime
R v Finch (Simon James) — [2021] WLR(D) 161
CRIME — Official secrets — Disclosure without lawful authority — Sentence — Defendant convicted of recording information and making damaging disclosures prejudicial to safety or interests of the State — Sentence referred to Court of Appeal as unduly lenient — Factors to be taken into account when sentencing for such offences — Official Secrets Act 1911 (c 28), s 1(1)(c) — Official Secrets Act 1989 (c 6), s 2(1) — Regulation of Investigatory Powers Act 2000 (c 23), s 53(1)
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Crime
Director of Public Prosecutions v M — [2021] 1 WLR 1669
CRIME — Evidence — Expert evidence — Defendant relying on statutory defence of being victim of exploitation — Single Competent Authority making conclusive grounds decision that defendant victim of exploitation — Whether conclusive grounds decision admissible as expert evidence — Modern Slavery Act 2015 (c 30), s 45(4)
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Crime
Attorney General’s Reference (No 1 of 2020) — [2021] 2 WLR 601
CRIME — Sexual offences — Sexual assault — Defendant kissing stranger on mouth without consent — Whether prosecution required to prove defendant intending kiss to be sexual — Sexual Offences Act 2003 (c 42), ss 3, 78
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Employment
Board of the Pension Protection Fund v Dalriada Trustees Ltd — [2021] ICR 479
PENSIONS — Pension scheme — Fraud compensation — Trustees reducing assets of occupational pension scheme by using it as vehicle for pension liberation activities and fraud — Independent trustee applying to Board of Pension Protection Fund for fraud compensation — Board only required to make compensation if certain conditions satisfied — Insolvency practitioner required to issue scheme failure notice confirming no person responsible for “employer’s pension liabilities under scheme” — Reduction in value of scheme’s assets needing to be attributable to act or omission constituting offence of dishonest — Satisfaction of conditions in some cases requiring “employer” in relation to scheme — Whether relationship of employment extending to remunerated or unremunerated office holders — Whether “employer’s pension liabilities under scheme” extending to statutory liabilities imposed on employer — Extent to which costs, expenses and liabilities incurred after fraudulent act capable of being treated as attributable to offence — Pensions Act 2004 (c 35), s 182 — Pensions Protection Fund (Entry Rules) Regulations 2005 (SI 2005/590), reg 9(2)
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Employment
Sarnoff v YZ — [2021] ICR 545
INDUSTRIAL RELATIONS — Employment tribunals — Disclosure — Claim against respondent living and working in USA — Employment judge making order for disclosure — Respondent challenging order on ground not present in Great Britain — Whether power to order disclosure confined to person physically present in Great Britain — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), Sch 1, rr 29, 31
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Employment
Vaughan v Modality Partnership — [2021] ICR 535
INDUSTRIAL RELATIONS — Employment tribunals — Amendment of claim — Late application to amend claim of detriment by adding two further protected disclosures — Factors to be considered — Whether tribunal balancing injustice and hardship as between parties — Correct approach
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Employment
Ali v Office of the Immigration Services Comr — [2021] ICR 452
DISCRIMINATION — Employment — Authorisation or qualification — Commissioner refusing to register claimant’s companies as qualified to provide immigration services — Claimant pursuing statutory appeal to First-tier Tribunal against Commissioner’s decision — Allegations Commissioner’s conduct racially discriminatory not raised by claimant — Discrimination claim subsequently made in employment tribunal — Whether jurisdiction excluded by statutory appeal against Commissioner’s decision — Whether subsequent conduct by Commissioner in investigating companies within scope of discrimination by qualifications body — Immigration and Asylum Act 1999 (c 33), s 87(2) — Equality Act 2010 (c 15), ss 53, 120(7)
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Employment
DJ v Radiotelevizija Slovenija — [2021] WLR(D) 155
EMPLOYMENT — Working time provisions — Working time — Shift worker working for several consecutive days in remote location — Worker required to be on stand-by in addition to normal working hours — Worker not required to remain at workplace but having to be contactable and be able to return within one hour if recalled from stand-by — Employer providing accommodation at workplace — Worker remaining in accommodation during stand-by periods due to difficulty of accessing remote workplace and lack of leisure facilities in vicinity — Whether stand-by time constituting “working time” — Parliament and Council Directive 2003/88/EC, art 2
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Employment
RJ v Stadt Offenbach am Main — [2021] WLR(D) 156
EMPLOYMENT — Working time provisions — Working time — Worker working as firefighter in German town significant distance from home — Worker carrying out periods of stand-by time during which he was not required to remain at workplace but had to reachable — On recall from stand-by, worker having to be within town boundaries within 20 minutes, in uniform, using service vehicle — Whether stand-by time constituting “working time” — Parliament and Council Directive 2003/88/EC, art 2
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Family
R (TT) v Registrar General for England and Wales (AIRE Centre intervening) — [2021] Fam 77
REGISTRATION OF BIRTHS AND DEATHS — Registration of mother — Transgender male — Female-born claimant undergoing gender transition and obtaining gender recognition certificate as male — Claimant subsequently giving birth to 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 — 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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IP and Media
VG Bild-Kunst v Stiftung Preußischer Kulturbesitz — [2021] WLR(D) 157
COPYRIGHT — Communication to public — Rights — Licensee operating digital library storing “thumbnails” of original images of copyrighted works — Copyright collecting society making agreement for use of its works conditional on licensee undertaking to apply technological measures against “framing”, by third parties, of thumbnails — Whether embedding, in third party’s website, of protected works by means of framing constituting “communication to the public” and requiring authorisation — Parliament and Council Directive 2001/29/EC, art 3(1)
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Land law
R (Lancashire County Council) v Secretary of State for the Environment, Food and Rural Affairs — [2021] AC 194
COMMONS — Town or village green — Registration — Application to register land owned by public authority as town or village green — Whether registration incompatible with statutory purposes for which land held — Commons Act 2006 (c 26), s 15
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Land law
Hicks v 89 Holland Park (Management) Ltd — [2021] Ch 105
RESTRICTIVE COVENANT — Enforceability — Vendor’s covenant — Covenant not to apply for planning permission without approval of adjoining freeholder — Approval not to be unreasonably withheld — Whether freeholder entitled to consider interests of its leaseholders when deciding whether to grant approval — Whether permissible to withhold approval on aesthetic grounds
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Public law
R (Hampshire County Council) v Secretary of State for Environment, Food and Rural Affairs — [2021] WLR(D) 162
COMMONS — Common land — Deregistration — Part of airport including operational land and terminal building registered as common land — Airport operator applying to remove operational land from register — Whether operational land “within the curtilage of a building” — Commons Act 2006 (c 26), Sch 2, para 6(2)
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Public law
R (Bell) v Tavistock and Portman NHS Foundation Trust (University College London Hospitals NHS Foundation Trust intervening) — [2021] PTSR 593
CHILDREN — Medical treatment — Consent — Puberty-blocking drugs prescribed to children experiencing gender dysphoria — Whether lawful — Whether children and young persons under 18 competent to consent to such treatment — Family Law Reform Act 1969 (c 46), s 8
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Public law
R (R) v National Police Chiefs' Council — [2021] ICR 425
CONFIDENTIAL INFORMATION — Disclosure — Police — Requirement to disclose any prior caution at outset of application process for eventual job as police officer — Claimant disclosing reprimand for low level theft received aged 13 — Whether statutory rules on disclosure incompatible with claimant’s Convention rights — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 — Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023), art 3ZA
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Public law
R (Kaitey) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) — [2021] QB 285
IMMIGRATION — Detained person — Immigration bail — Foreign national detained pending deportation but later released on immigration bail as person “liable to detention” — Whether person liable to detention if power to detain not capable of being exercised lawfully at relevant time — Immigration Act 2016 (c 19), Sch 10, para 1(2)(5)
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Public law
R (T) v West Yorkshire (Western Area) Senior Coroner — [2021] QB 205
CORONER — Inquest — Anonymity — Public interest in hearings being in public — Whether anonymity to be granted to mother of deceased baby — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 2, 3, 8
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Public law
Barlow v Wigan Metropolitan Borough Council — [2021] QB 229
HIGHWAY — Duty to maintain highway — Highway authority — Claim against highway authority for breach of statutory duty to maintain path — Whether duty applying — Whether path “highway maintainable at the public expense” — Whether path “highway constructed by a highway authority” — Whether necessary that path constructed by highway authority acting in that capacity — Whether path deemed to have been dedicated as highway — Highways Act 1980 (c 66), ss 36(1)(2)(a), 41(1)
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Public law
R (Hemmati) v Secretary of State for the Home Department — [2021] AC 143
IMMIGRATION — Asylum — Detention pending removal — Claimant asylum seekers detained pending removal to member states responsible for examining their asylum applications pursuant to European Union Regulation — Whether English law failing to specify objective criteria for assessing risk of absconding — Whether absence of such criteria in English law rendering detention unlawful — Whether claimants entitled to damages for false imprisonment — Whether claimants entitled to more than nominal damages — Immigration Act 1971 (c 77), Sch 2, para 16(2) — Parliament and Council Regulation (EU) No 604/2013, arts 2(n), 28(2)
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Public law
R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government — [2021] PTSR 553
PLANNING — Development — Environmental assessment — Statutory instruments introducing new categories of permitted development and new use class — Whether “plans or programmes” setting framework for future development consents — Whether environmental assessment required — Town and Country Planning (Use Classes) Order 1987 (SI 1987/764) (as amended by Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (SI 2020/757)) — Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633), regs 5(4), 12(1)(2)(3) — Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) (as amended by Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2020 (SI 2020/755) and Town and Country Planning (General Permitted Development) (England) (Amendment) (No 3) Order 2020 (SI 2020/756)) — Parliament and Council Directive 2001/42/EC, art 3(4)
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Public law
R (Turani) v Secretary of State for the Home Department — [2021] WLR(D) 153
IMMIGRATION — Asylum — Scheme to protect vulnerable persons by settlement — Claimants Palestinian refugees who fled conflict in Syria to Lebanon wishing to be considered for resettlement in United Kingdom — Claimants found to be outside scope of Scheme — Whether application of impugned Scheme discriminatory on grounds of race — Whether territorial reach of public sector equality duty intended to extend to persons or matters outside United Kingdom — Equality Act 2010 (c 15), ss 29(1), (6), (9), 149 (1)
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Public law
R (End Violence against Women Coalition) v Director of Public Prosecutions — [2021] WLR(D) 152
JUDICIAL REVIEW — Director of Public Prosecutions — Prosecution of rape and serious sexual offences — Crown Prosecution Service altering wording and nature of guidance and training materials designed to assist prosecutors — Campaigning organisation, concerned at low and declining rate of prosecutions, bringing claim for judicial review — Whether decision underlying applicable changes constituting change of policy — Whether decision lawful — Equality Act 2010 (c 15), s 149 (1)
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Public law
R (Huxtable) v Secretary of State for Justice — [2021] 1 WLR 1569
PRISONS — Prisoners’ rights — Release on licence — Parole Board decision that prisoner serving sentence of imprisonment for public protection suitable for release — Rule providing that such decision provisional and subject to reconsideration for 21 days — Whether rule ultra vires — Whether rule made “with respect to the proceedings of the Board” — Whether reconsideration mechanism affecting substantive powers of Parole Board — Whether continued detention pending reconsideration in breach of Convention right to liberty — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Criminal Justice Act 2003 (c 44), s 239(5) — Parole Board Rules 2019 (SI 2019/1038), rr 9, 28
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Public law
R (Easter) v Mid-Suffolk District Council — [2021] 1 WLR 1603
COSTS — Judicial review — Settlement of proceedings — Claimant and defendant seeking to agree consent order to settle judicial review claim — Interested party opposing consent order — Permission to proceed with claim for judicial review refused on papers — Interested party participating in and opposing claimant’s renewed oral hearing for permission — Permission granted and all parties subsequently agreeing to consent order — Whether oral hearing for permission following refusal on the papers required to proceed with claim and enable making of consent order — Whether claimant entitled to recover costs from interested party — CPR rr 40.6, 54.12(4), 54.18
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Public law
Sutton v Norwich City Council — [2021] 1 WLR 1691
HOUSING — Private rented sector — Civil penalties — Local authority imposing civil penalties on sole director and company for breaches of regulations and non-compliance with improvement notices — Director on appeal having other civil penalties imposed by Upper Tribunal — Whether penalties as between company and director appropriate — Housing Act 2004 (c 34), s 249A — Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007 (SI 2007/1903)
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Tax
R (JJ Management Consulting LLP) v Revenue and Customs Comrs — [2021] QB 257
REVENUE — Income tax — Assessment — Revenue conducting informal investigation into taxpayers’ tax affairs — Whether revenue having power to conduct such investigation — Proper approach to judicial review of decision to conduct such investigation — Taxes Management Act 1970 (c 9), ss 1, 9A — Commissioners for Revenue and Customs Act 2005 (c 11), ss 5, 9 — Finance Act 2008 (c 9), Sch 36
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Tax
Revenue and Customs Comrs v Wellcome Trust Ltd — [2021] WLR(D) 158
REVENUE — Value added tax — Place of supply of services — Taxpayer charity using investment management services of suppliers established outside EU — Services used in relation to non-economic business activities for VAT purposes — Taxpayer accounting for VAT on services under reverse charge mechanism on basis that UK being place of supply — Taxpayer claiming refunds for overpayment of output tax — Rule that place of supply of services to “taxable person acting as such” being place where person established business — Whether services supplied to taxpayer as “taxable person acting as such” and chargeable to VAT — Council Directive 2006/112/EC, arts 2(1), 43, 44
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Tort
XX v Whittington Hospital NHS Trust — [2021] AC 275
Damages — Personal injuries — Loss of opportunity to have children — Claimant unable to have children because of defendant’s negligence — Claimant seeking damages for costs of surrogacy arrangements — Commercial surrogacy arrangements unlawful in England — Whether damages for costs of non-commercial surrogacy arrangements using claimant’s or donor’s eggs recoverable — Whether contrary to public policy to award damages for costs of commercial surrogacy arrangements in California — Surrogacy Arrangements Act 1985 (c 49), s 2(1)
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