Copy
View this email in your browser

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.

Subscribe

You can now subscribe to ICLR Online from £75 a month.

Pay by the month (cancel anytime) or by the year (and save on the price).
Find out more here

Printed Part Covers

In response to requests from a number of customers we are now publishing copies of the covers of the weekly or monthly parts of our printed series of law reports, including the lists of cases reported arranged by subject matter. To select a particular weekly or monthly part in order to view its cover, just follow this link to Printed Part Covers.

The printed series available are The Law Reports (AC, Ch, Fam and QB), The Weekly Law Reports (WLR) and The Industrial Cases Reports (ICR). For more information about these series, go to our Products page.


Civil litigation
Dynasty Co for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq — [2021] WLR(D) 237
INTERNATIONAL LAW — State immunity — Act of state — Claimant bringing claim against agent of constituent territory of foreign state — Whether defendant having immunity to claim — State Immunity Act 1978 (c 33), s 14(2)(5)
Read more...

Civil litigation
FundHaven Ltd v Executive Director of the Securities Commission of the Bahamas — [2021] WLR(D) 239
PRACTICE — Appeal — Leave to appeal — Leave for second appeal granted only if judge certifying point of law of general public importance involved — Applicants applying for leave to appeal decision of judge of Supreme Court of Bahamas — Judge not identifying points of law but merely annexing grounds of appeal to first certificate — Second certificate drafted by parties and signed by registrar — Whether certificates valid — Whether Court of Appeal justified in refusing itself to certify point of law — Court of Appeal Act (Statute Law of The Bahamas, c 52), s 21(1)
Read more...

Civil litigation
Global Energy Horizons Corpn v Gray (Practice Note) — [2021] 1 WLR 2264
PRACTICE — Appeal — Witness action tried by judge alone — Application for permission to appeal findings of fact — Guidance as to principles applicable
Read more...

Commercial
McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd — [2021] 4 WLR 57
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
Read more...

Commercial
Airhelp Ltd v Scandinavian Airlines System Denmark – Norway – Sweden — [2021] Bus LR 674
AIRCRAFT — Carriage by air — Compensation and assistance to passengers — Pilots’ union lawfully initiating strike after notice given to air carrier — Carrier cancelling flight — Whether cancellation caused by “extraordinary circumstances” — Parliament and Council Regulation (EC) No 261/2004, art 5(3)
Read more...

Commercial
Burnett or Grant v International Insurance Co of Hanover Ltd — [2021] WLR(D) 236
INSURANCE — Liability insurance — Public liability — Policy insuring employer of bar security staff — Employee restraining member of public and causing his death — Policy excluding “liability arising out of deliberate acts” — Whether exclusion applying to all acts intended to cause injury — Whether exclusion applying to reckless acts — Whether insurer liable to indemnify employer
Read more...

Commercial
Etihad Airways PJSC v Flöther — [2021] 2 WLR 939
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Exclusive jurisdiction — Facility agreement containing asymmetric jurisdiction clause entitling borrower to sue lender in England only but entitling lender to bring proceedings in courts of any competent jurisdiction — Borrower starting proceedings against lender in Germany — Lender subsequently starting mirror proceedings against borrower in England — Whether English court to stay proceedings as court second seised — Whether asymmetric jurisdiction clause capable of conferring “exclusive jurisdiction” on English courts — Parliament and Council Regulation (EU) No 1215/2012, arts 25, 29, 31(2)
Read more...

Commercial
ZM (liquidator of Oeltrans Befrachtungsgesellschaft mbH) v EA Frerichs — [2021] WLR(D) 232
INSOLVENCY — International jurisdiction — European Union — Acts detrimental to creditors — Sum due to Dutch defendant under contract concluded with German contracting party paid by third party — Insolvency proceedings opened in Germany in relation to third party — Liquidator applying to German court for repayment of sum as “act detrimental to creditors” relying on general rule of jurisdiction in insolvency matters — Defendant relying on exception where act subject to law of other member state which did not allow means of challenging act — Whether law applicable to contract also governing payment — Council Regulation (EC) No 1346/2000, arts 4, 13 — Parliament and Council Regulation (EC) No 593/2008, art 12(1)(b)
Read more...

Commercial
Rockliffe Hall Ltd v Travelers Insurance Co Ltd — [2021] Bus LR 656
INSURANCE — Contract — Construction — Definition by list — Business interruption insurance providing cover for losses resulting from outbreaks of infectious disease — List of diseases covered not expressly including Covid-19 — Whether Covid-19 within scope of listed disease — Whether list exhaustive
Read more...

Costs
R (RS) v Brent London Borough Council — [2021] 1 WLR 2293
COSTS — Judicial review — Settlement of proceedings — Claimant seeking judicial review of local authority’s refusal to issue him with Blue Badge parking entitlement — Parties agreeing settlement of claim — Judge making no order as to costs — Whether judge erring in law in finding claimant not wholly successful — Whether appellate court entitled to retake decision as to costs
Read more...

Crime
R v Umerji — [2021] WLR(D) 238
CRIME — Fraud — Institution of proceedings — Defendant charged with conspiracy to cheat the revenue — Indictable only offence — Defendant not attending magistrates’ court when case sent for trial to Crown Court — Whether magistrates having power, in absence of defendant in court, to send his case to Crown Court — Administration of Justice (Miscellaneous Provisions) Act 1933 (c 36), s 2 — Magistrates’ Courts Act 1980 (c 43), ss 17A, 122 — Crime and Disorder Act 1998 (c 37), s 51
Read more...

Crime
R v Dickens (Darryl) — [2021] 1 WLR 2275
CRIME — Summing up — Evidence of identity — Defendant and co-accused identified by two independent witnesses as getaway driver and gunman in joint enterprise murder — Defendant claiming to have been in workplace at time of murder where gunman claiming to have seen him that morning — Judge directing jury identifications by two different witnesses mutually supportive evidence — Whether correct to direct jury identifications of defendant and co-accused capable of being mutually supportive on basis of unexplained odd coincidence confirming accuracy of two identifications — Whether material misdirection — Whether conviction safe
Read more...

Employment
Federatie Nederlandse Vakbeweging v Van den Bosch Transporten BV — [2021] ICR 627
EMPLOYMENT — Posted worker — Goods transport sector — Dutch company obliged to apply collective labour agreement to employed drivers — Agreement not declared universally applicable — Company contracting with sister companies in other member states for performance of international transport operations — Drivers employed by sister companies starting and ending jobs in Netherlands but most work carried out elsewhere — Whether collective agreement to be applied to drivers — Whether drivers “posted to” Netherlands — Relevance of group affiliation between companies — Whether drivers working entirely within Netherlands on temporary basis posted workers — Parliament and Council Regulation No 1072/2009, arts 2(6), 8(2) — Parliament and Council Directive 96/71/EC, arts 1, 2, 3
Read more...

Employment
Uber BV v Aslam — [2021] ICR 657
EMPLOYMENT — Contract — Worker — Private hire vehicle drivers providing passenger transportation services through smartphone app provided and operated by company — Written agreement stating no employment relationship created — Whether drivers undertaking to perform work or services for company or as independent contractors — Whether “workers” entitled to national minimum wage, paid annual leave and other workers’ rights — Whether “working time” including all time drivers logged on to app — Employment Rights Act 1996 (c 18), s 230(3)(b) — National Minimum Wage Act 1998 (c 39), s 54(3)(b) — Working Time Regulations 1998 (SI 1998/1833), reg 2(1)
Read more...

Employment
Allay (UK) Ltd v Gehlen — [2021] ICR 645
DISCRIMINATION — Employment — Liability of employer — Employee subjected to racial abuse by fellow employee — Managers aware but taking no action — Employees previously receiving anti-harassment training — Complaint of racial harassment — Whether employer taking all reasonable steps to prevent discrimination — Equality Act 2010 (c 15), s 109(4)
Read more...

Employment
Ryan v South Western Ambulance Service NHS Foundation Trust — [2021] ICR 555
DISCRIMINATION — Age — Indirect discrimination — Employer operating pool of employees suitable for higher roles — Employees aged 55 to 70 under-represented in pool — Employer applying requirement of membership of pool to be considered for promotion — Claimant aged 67 not in pool and not appealing exclusion — Exclusion resulting in loss of opportunity for promotion — Claim of indirect age discrimination — Whether employees aged 55 to 70 at disadvantage — Whether claimant suffering “that disadvantage” — Whether claimant’s disadvantage caused by requirement or by failure to seek entry to pool — Equality Act 2010 (c 15), s 19
Read more...

Employment
Cole v Elders’ Voice — [2021] ICR 601
INDUSTRIAL RELATIONS — Settlement agreement — Acas conciliated agreement — Employee making claim of race discrimination against employer — Employment transferring to respondent — Employee and transferee entering into Acas agreement settling claims against transferee — Hearing to determine whether agreement precluding race discrimination claim — Claimant in person asking tribunal to look at “without prejudice” correspondence to show misrepresentation and estoppel invalidating agreement — Whether tribunal erring in refusing to look at correspondence and upholding agreement — Equality Act 2010 (c 15), s 144(4)
Read more...

Employment
Practice Direction (Employment tribunals: Legal officers) — [2021] ICR 694
PRACTICE — Employment tribunals — Legal officers — Members of staff appointed as legal officers authorised to carry out functions of judicial nature — Provision for decision of legal officer to be considered afresh by employment judge — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), regs 10A, 10B
Read more...

Employment
Santander UK plc v Bharaj — [2021] ICR 580
INDUSTRIAL RELATIONS — Employment tribunals — Disclosure — Employee’s claims of detriment on ground of protected disclosures — Employer conducting investigation in response to e-mail from claimant — Claimant applying for specific disclosure of documents relating to investigation — Employer claiming documents not relevant to claims — Correct approach of employment tribunal — Civil Procedure Rules, rr 31.6, 31.12
Read more...

Employment
Comr of the City of London Police v Geldart — [2021] WLR(D) 242
DISCRIMINATION— — Sex — Less favourable treatment — Police officer in City of London force on maternity leave — London allowance treated as pay and reduced when on leave — Whether officer entitled to full allowance — Whether pay — Complaint of direct sex discrimination — Whether claim excluded — Whether comparator required — Whether complaint of indirect discrimination debarred — Equality Act 2010 (c 15), ss 13, 39(2), 42(1), 71, 76(1A), Sch 9, para 17 — Police Regulations 2003 (SI 2003/527), reg 34(1), Annex U, para 3
Read more...

Public law
R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government — [2021] WLR(D) 244
Local Government — Council meetings — Remote meetings — Legislation requiring local authority meetings to be held “in person” — New legislation passed in response to Covid-19 pandemic allowing meetings to be held remotely for limited period — Whether local authorities having power to continue with remote meetings after that period ending — Whether “updating” approach to be applied to construction of relevant legislation — Whether extension of remote meeting facility requiring primary legislation — Local Government Act 1972 (c 70), Sch 12 — Coronavirus Act 2020 (c 7), s 78 — Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (SI 2020/392), reg 5
Read more...

Public law
R (Joint Council for the Welfare of Immigrants) v President of the Upper Tribunal (Immigration and Asylum Chamber) — [2021] PTSR 800
TRIBUNAL — Upper Tribunal — Practice and procedure — Immigration and asylum appeals — Senior President of Tribunals introducing pilot practice direction during Covid-19 pandemic promoting making of decisions without hearing — President of Immigration and Asylum Chamber issuing guidance note on practice direction to judges hearing substantive appeals — Whether guidance communicating norm that substantive appeals would be determined on papers — Whether guidance unlawful — Tribunals, Courts and Enforcement Act 2007 (c 15), s 23 — Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rr 2, 5A, 34 — Tribunal Procedure (Coronavirus) (Amendment) Rules 2020 (SI 2020/416)
Read more...

Public law
Regina (Moss) v Kingston upon Thames Royal London Borough Council — [2021] WLR(D) 243
Local Government — Audit — Inspection of documents — Claimant seeking to inspect documents relating to local authority’s housing stock — Local authority processing request in part but declining to process further because time involved would exceed time allowed to process freedom of information requests — Whether authority lawfully entitled to refuse to process request because of time involved in compliance — Local Audit and Accountability Act 2014 (c 2), ss 20(1)(c), 26, 27
Read more...

Public law
R (Howard) v Secretary of State for the Home Department — [2021] WLR(D) 241
NATIONALITY — British citizenship — Acquisition — Claimant arriving in United Kingdom from Jamaica as part of “Windrush generation” — Home Secretary refusing claimant’s application for naturalisation on basis of his criminal record — Whether Home Secretary erring in failing to disapply “good character” requirement — Whether requirement discriminating against claimant in breach of Convention rights — British Nationality Act 1981 (c 61), s 6, Sch 1, para 1(1)(b) — Human Rights Act 1998 (c 42), s 3(1), Sch 1, Pt I, arts 8, 14
Read more...

Public law
R (Elkundi) v Birmingham City Council — [2021] WLR(D) 235
Local Government — Homeless persons — Accommodation available for occupation — Local housing authority accepting duty to secure that accommodation available for homeless claimants — Authority leaving claimants in accommodation until better accommodation becoming available — Whether authority discharging duty to secure “accommodation” — Whether system for performance of housing duty unlawful — Housing Act 1996, s 193(2)
Read more...

Public law
R (Hudson) v Windsor and Maidenhead Royal Borough Council — [2021] WLR(D) 240
PLANNING — Development — Special Area of Conservation — Appropriate assessment — Claimant opposing proposed development as having negative impact on green belt and veteran trees — Local authority granting planning permission without carrying out appropriate assessment required by European Union law — Judge dismissing judicial review on grounds that “highly likely” outcome not “substantially different” had assessment been carried out — Whether judge applying proper test — Whether EU principles of equivalence and effectiveness requiring application of stricter test — Whether grant of planning permission to be quashed — Senior Courts Act 1981 (c 54), s 31(2A)
Read more...

Public law
R (Privacy International) v Investigatory Powers Tribunal — [2021] 2 WLR 970
CROWN — Intelligence services — Warrant — Secretary of State’s power to issue warrant authorising intelligence services to interfere with property or wireless telegraphy — Whether Secretary of State empowered to issue such warrant if not defined by reference to named or identified individuals — Intelligence Services Act 1994 (c 13), s 5
Read more...

Public law
R (Aviva Insurance Ltd) v Secretary of State for Work and Pensions (Nos 1 and 2) — [2021] 1 WLR 2187
INSURANCE — Liability insurance — Social security benefits — Legislative scheme requiring tortfeasors to pay to state amounts equal to certain social security benefits paid to sufferers of disease — Scheme deeming tortfeasors’ liability insurance to cover tortfeasors’ liability to make such payments — Scheme requiring insurers to make payments not corresponding to losses caused by insureds — Insurers contending scheme incompatible with their Convention rights’ to peaceful enjoyment of possessions — Whether challenge not justiciable because scheme pre-dating human rights legislation — Whether scheme rationally connected to legitimate aim — Whether scheme striking fair balance between interests of state and insurers — Whether and to what extent scheme incompatible with Convention rights — Whether scheme to be read down in way compatible with Convention rights — Social Security (Recovery of Benefits) Act 1997 (c 27), ss 6(1), 22(1) — Human Rights Act 1998 (c 42), s 3(1), Sch 1, Pt II, art 1
Read more...

Trusts and Chancery
Brake v Guy — [2021] WLR(D) 233
CONFIDENTIAL INFORMATION — Misuse of private information — Public interest — Claimants alleging defendants unlawfully gaining access to their e-mail accounts and sharing information with others — Claimants bringing action for breach of confidence and misuse of private information — Defendants seeking to rely on public interest defence — Whether public interest defence available to claim of misuse of private information — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 10
Read more...

Trusts and Chancery
In re MBI International & Partners Inc — [2021] WLR(D) 234
INSOLVENCY — Inquiry into company’s dealings — Examination in private — Director summoned before court to be examined about company’s dealings and affairs — Director giving false information as to ownership and movement of shares held by company — Liquidators contending that in giving false information director in breach of fiduciary duty and applying to amend action brought against him to include breach — Director resisting application on ground that amendment offending principle of witness immunity — Whether private examination process constituting judicial proceeding at which witness evidence given — Whether preparatory step to such proceedings — Whether immunity extending to examination — Insolvency Act 1986 (c 45), s 236
Read more...
Copyright © 2021 The Incorporated Council of Law Reporting for England and Wales, All rights reserved.


Want to change how you receive these emails?
You can update your preferences or unsubscribe from this list.

Email Marketing Powered by Mailchimp