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The Incorporated Council of Law Reporting for England and Wales

 

Weekly Case Law Update


Welcome to the email case law alert service from the Incorporated Council of Law Reporting for England and Wales. These alerts are issued weekly and provide you with an easy to digest snapshot of recently decided English cases.

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Civil litigation
Berkeley Square Holdings Ltd v Lancer Property Asset Management Ltd — [2021] WLR(D) 210
PRACTICE — Pleadings — Striking out — Abuse of process — Statements made in course of “without prejudice” mediation — Claimants seeking to set aside agreement made in mediation on grounds that its agent lacked authority — Whether parts of defence relying on statements made in mediation to be struck out as abuse of process — Whether evidence of “without prejudice” statements admissible for purpose of resolving dispute
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Civil litigation
Hulley Enterprises Ltd v Russian Federation — [2021] WLR(D) 203
ARBITRATION — Award — Enforcement — Claimants obtaining New York Convention awards against defendant sovereign state — Claimants applying for recognition and enforcement of awards in England — Defendant indicating intention to dispute jurisdiction of English court on state immunity grounds — Proceedings subsequently stayed pending determination of challenge to awards before curial court — Appeal court in place of seat rejecting challenge and defendants appealing to supreme court — Claimants applying for stay to be lifted or alternatively for adjournment pending supreme court decision conditional on security being provided pursuant to English arbitration statute — Whether stay to be lifted — Whether court having power to grant adjournment and order security when state immunity issues unresolved — State Immunity Act 1978 (c 33), s 1 — Arbitration Act 1996 (c 23), s 103(5)
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Civil litigation
Revenue and Customs Comrs v IGE USA Investments Ltd — [2021] WLR(D) 199
LIMITATION OF ACTION — Period of limitation — Misrepresentation — Equitable rescission — Revenue’s claim for equitable rescission of contract for fraudulent misrepresentation — Whether six-year limitation period in tort applicable to claim for equitable rescission of contract for fraudulent misrepresentation by analogy — Limitation Act 1980 (c 58), ss 2, 36(1)
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Civil litigation
OT Computers Ltd v Infineon Technologies AG — [2021] WLR(D) 200
LIMITATION OF ACTION — Postponement of limitation period — Deliberate concealment of relevant fact — Claimant claiming damages as victim of defendant’s operation and deliberate concealment of unlawful price-fixing cartel — Claimant contending that running of limitation postponed until concealment discovered or discoverable with reasonable diligence — Claimant insolvent when information about concealment first emerged — Whether claim time-barred — Whether claimant’s insolvency relevant to whether it “could with reasonable diligence have discovered” concealment — Limitation Act 1980 (c 58), s 32(1)
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Civil litigation
JSC Karat-1 and 11 v Tugushev — [2021] WLR(D) 194
COSTS — Security for costs — Jurisdiction — Worldwide freezing order obtained by claimant in proceedings subsequently discharged for breach of full and frank disclosure duties and absence of real risk of dissipation — Third-party companies wholly owned by defendant alleging loss as result of freezing order and applying for inquiry into damages — Claimant seeking security for costs of inquiry — Whether claimant to be considered defendant for purpose of security for costs claim and hence entitled to claim for security for costs — CPR r 25.12(1)
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AIC Ltd v Federal Airports Authority of Nigeria — [2021] 1 WLR 1936

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Commercial
A v B — [2021] WLR(D) 205
SALE OF GOODS — Nomination of vessel — Fob contract — Buyer making invalid vessel nomination — Buyer not providing copy of charterparty to seller pursuant to contractual requirement to provide it at seller’s “first request” — Seller purporting to terminate contract for repudiatory breach — Buyer purporting to nominate substitute vessel within contractual time period — Seller not accepting nomination — Parties agreeing contract at end and referring dispute to GAFTA tribunal — GAFTA board of appeal finding in favour of buyer — Seller appealing on questions of law — Whether buyer’s invalid initial vessel nomination constituting condition, breach of which entitling seller to terminate contract — Whether obligation to provide copy of charterparty at first request constituting condition — Arbitration Act 1996 (c 23), s 69 — GAFTA contract form no 49, cl 6
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Costs
Football Association Premier League v Lord Chancellor — [2021] WLR(D) 204
COSTS — Central funds — Power to award — Court having power to order payment out of central funds of amount to compensate prosecutor for expenses incurred “in the proceedings” — Whether power extending to expenses incurred prior to formal commencement of proceedings — Prosecution of Offences Act 1985 (c 23), s 17(1)
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Costs
Various Claimants v MGN Ltd — [2021] WLR(D) 202
COSTS — Discretion of court — Amendment of pleadings — Claimants amending particulars of claim after disclosure — Whether claimants to be ordered to pay costs of and occasioned by amendments — CPR r 44.2
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Crime
R v Say (Darren) — [2021] WLR(D) 198
CRIME — Fraud — Evidence — Defendant involved in running pension schemes — Whether defendant fraudulently using scheme moneys for own benefit
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Employment
National Union of Professional Foster Carers v Certification Officer — [2021] WLR(D) 206
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
London Fire Comr v Sargeant — [2021] WLR(D) 195
DISCRIMINATION — Age — Pension scheme — Members of public sector pension scheme transferred into new scheme — Transitional measures discriminating against younger members — Measures constituting direct age discrimination but employers relying on defence of statutory authority — Whether members barred from bringing claims of less favourable treatment on grounds of age — Equality Act 2010 (c 15), ss 13, 61, 62, Sch 22, para 1 — Council Directive 2000/78/EC, arts 2, 3, 16
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Family
In re M (Special Guardianship Order: Leave to Apply to Discharge) — [2021] WLR(D) 209
CHILDREN — Care proceedings — Special guardianship orders — Local authority taking care proceedings because mental ill mother unable to adequately care for child — Unopposed special guardianship order made in favour of maternal grandparents — Mother subsequently seeking leave to discharge special guardianship order and applying for contact order — Judge accepting grandparents’ accounts to summarily dismiss application for leave and for contact order — Whether judge applying correct test for leave to vary and for contact order — Children Act 1989 (c 41), s 14D (as inserted by Children and Adoption Act 2002 (c 38), s 115(1))
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In re Y (Children) — [2021] 1 WLR 2072

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Land law
Keshwala v Bhalsod — [2021] WLR(D) 207
LANDLORD AND TENANT — Forfeiture of lease — Relief from forfeiture — Landlord forfeiting lease by peaceable re-entry for non-payment of rent — Landlord re-letting premises five months after forfeiture — Tenants applying for relief 5½ months after forfeiture — County Court judge dismissing claim for relief on grounds of unreasonable delay — Judge allowing appeal on ground that tenants applying for relief within statutory time limit of six months after forfeiture — Whether tenant to be treated as having applied with reasonable promptitude if bringing application before expiry of six month — County Courts Act 1984 (c 28), s 139(2)
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Land law
Northwood Solihull Ltd v Fearn — [2021] 1 WLR 1937
LANDLORD AND TENANT — Assured shorthold tenancy — Order for possession — Corporate landlord letting property to tenants — Landlord providing tenants with certificate confirming accuracy of information provided regarding deposit — Certificate signed by one of landlord’s directors — Landlord subsequently serving tenants with notice of possession — Notice signed by landlord’s property manager — Whether confirmatory certificate and notice required to be executed by company in accordance with statutory requirements — Whether certificate and notice valid — Housing Act 1988 (c 50), s 8 — Housing Act 2004 (c 34), s 213(5)(6) — Companies Act 2006 (c 46), s 44 — Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (SI 2007/797), art 2(1)(g)(vii) — Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No 2) Regulations 2016 (SI 2016/1118), Sch, Form No 3
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Thirunavukkrasu v Brar — [2021] 1 WLR 1955

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Land law
Williams v Aviva Investors Ground Rent GP Ltd — [2021] 1 WLR 2061
LANDLORD AND TENANT — Covenant — Service charge — Lease providing for tenant’s share of service charge to be percentage specified in lease or percentage determined by landlord — Provision permitting landlord to determine such percentage rendered void by statute — Whether lease to be construed as permitting First-tier Tribunal to determine percentage payable by tenant — Landlord and Tenant Act 1985 (c 70), s 27A(6)
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Public law
R (MR (Pakistan)) v Justice Secretary — [2021] WLR(D) 197
IMMIGRATION — Detention — Detention pending deportation — Immigration detainees held in prison after serving prison sentences pending deportation — Whether absence of equivalent detention centre rules as to detainee’s health systemically unfair rendering immigration detention in prison estate unlawful — Whether irrational not to have obtained medical information of detainee’s status as victim of past torture — Prison Rules 1999 (SI 1999/728), rr 20, 21 — Detention Centre Rules 2001 (SI 2001/238), rr 34, 35
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Public law
R (Latif) v Secretary of State for Justice — [2021] WLR(D) 201
PRISONS — Prisoners’ rights — Release on licence — Licence conditions — Claimant convicted of terrorism offence released on licence — Secretary of State varying licence conditions — Whether conditions only variable by Parole Board — Whether claimant having right to make representations on variations — Whether conditions invalid as contrary to policy — Whether conditions unlawful due to uncertainty and disproportionate interference with human rights — Human Rights Act 1998 (c 42), s 3, Sch 1, Pt I, arts 5, 8, 14 — Terrorism Act 2003 (c 11), s 5(1) — Criminal Justice Act 2003 (c 44), ss 226, 227, 236A, 250
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Public law
R (EOG) v Secretary of State for the Home Department — [2021] 1 WLR 1875
IMMIGRATION — Human trafficking — Victim — Competent authority finding reasonable grounds to believe that claimant victim of trafficking — Secretary of State’s policy excluding claimant from grant of discretionary leave to remain pending making of conclusive grounds decision — Whether Secretary of State’s policy failing to implement United Kingdom’s treaty obligations — Whether unlawfully discriminating against claimant in enjoyment of Convention rights — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 14 — Council of Europe Convention on Action against Trafficking in Human Beings 2005 (Cm 7465), art 10(2)
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Public law
Surrey County Council v NHS Lincolnshire Clinical Commissioning Group — [2021] 2 WLR 805
RESTITUTION — Unjust enrichment — Benefit — Local authority funding provision of accommodation and care services for vulnerable adult — NHS trust unlawfully declining to assess whether vulnerable adult eligible for NHS continuing healthcare — Cost of care thus remaining with local authority — Whether local authority having claim in restitution against NHS trust — Whether NHS trust unjustly enriched at local authority’s expense — Whether claim to be brought by way of judicial review — Whether NHS trust benefiting — Whether defence of change of position available
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Public law
Colley v Shuker — [2021] 1 WLR 1889
ROAD TRAFFIC — Motor Insurers’ Bureau — Uninsured driver — Passenger sustaining personal injuries in car accident caused by negligence of driver — Vehicle insured but driver uninsured — Passenger entering vehicle knowing driver uninsured — Insurer avoiding policy on grounds of material misrepresentation by insured — Whether Motor Insurers’ Bureau obliged to compensate passenger — Whether obligation to compensate applying where vehicle insured but driver uninsured — Whether obligation excluded when passenger entering vehicle knowing driver uninsured — Road Traffic Act 1988 (c 52), ss 151, 152(2) — Parliament and Council Directive 2009/103/EC, arts 3, 10
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Public law
R (MN) v Secretary of State for the Home Department (AIRE Centre intervening) — [2021] 1 WLR 1956
IMMIGRATION — Human trafficking — Victim — National Referral Mechanism providing two-stage process for competent authority to determine whether individual victim of human trafficking — Whether two-stage process complying with United Kingdom’s international obligations — Proper approach to expert evidence when making such determination — Proper approach to assessment of putative victim’s credibility — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 4 — Council of Europe Convention on Action against Trafficking in Human Beings 2005 (Cm 7465), art 10 — Parliament and Council Directive 2011/36/EU, art 11
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Tax
R (M Sport Ltd) v Revenue and Customs Comrs — [2021] WLR(D) 208
REVENUE — Tax avoidance — Accelerated payment notice — Revenue issuing follower notice and accelerated payment notice following inquiry into taxpayer’s tax return — Taxpayer commencing judicial review proceedings contending revenue should withdraw notice — Taxpayer not waiting for revenue’s response to taxpayer’s statutory representations before issuing claim — Judicial review claim including human rights grounds — Revenue withdrawing notice before commencement of judicial review hearing — Costs judge determining judicial review claim issued prematurely and making no order as to costs — Whether taxpayer entitled to costs of judicial review claim — Whether claim issued prematurely — Whether human rights grounds capable of being subject of statutory representations — Finance Act 2014, ss 207, 222
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Leisure, Independence, Friendship and Enablement Services Ltd v Revenue and Customs Comrs — [2021] 1 WLR 1888

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NCL Investments Ltd v Revenue and Customs Comrs — [2021] 1 WLR 2060

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Trusts and Chancery
In re DeepOcean 1 UK Ltd — [2021] Bus LR 632
COMPANY — Reorganisation of debt — Company in financial difficulty — Proposed compromise or arrangement providing for slightly enhanced dividend on creditors’ claims but not enabling company to continue as going concern — Whether court having jurisdiction to grant relief — Companies Act 2006 (c 46), ss 901A(2)(3), 901C
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Trusts and Chancery
Promontoria (Pine) Designated Activity Co v Hancock — [2021] Bus LR 607
DEBT — Assignment — Validity — Deed of assignment purporting to transfer rights under loan facility to corporate assignee — Assignee serving statutory demand on debtor — Debtor putting in issue assignee’s title to debt claimed — Assignee redacting parts of deed of assignment exhibited in evidence preventing debtor from verifying identity and authority of assignee’s signatory — Whether redaction giving rise to dispute on substantial grounds about validity of deed of assignment and therefore transfer of debt to assignee — Law of Property Act 1925 (15 & 16 Geo 5, c 20), s 136
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Trusts and Chancery
In re Stay in Style (in liquidation) — [2021] Bus LR 577
BANKRUPTCY — Trustee in bankruptcy — Control by court — Property vesting in trustee in bankruptcy and liquidators following bankruptcy and liquidation — Adjacent land vesting in trustee — Trustee selling adjacent land to purchaser without notice to discharged bankrupt — Discharged bankrupts unsuccessfully bidding for liquidators’ interest in property — Trustee buying liquidators’ interest in property and selling on to purchaser — Whether discharged bankrupts as bankrupts or as bidders having standing to challenge transactions entered into by trustee — Whether discharged bankrupts in either capacity persons “dissatisfied” — Whether in either capacity having sufficient interest in relief sought to establish standing — Insolvency Act 1986 (c 45), ss 168(5), 303(1)
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McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd — [2021] WLR(D) 196
BARRISTER — Duty — Professional client — Solicitor instructing barrister on model terms drafted by the professional bodies — Solicitor suffering loss following barrister’s alleged negligence — Whether barrister owing solicitor contractual duty to exercise reasonable skill and care when providing services — Whether duty at common law — Combar CLLS Barrister’s Terms, art 4.1
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