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)
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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)
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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
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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
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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)
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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
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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)
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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)
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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
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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
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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
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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
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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
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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)
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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)
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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
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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)
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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
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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
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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
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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
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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)
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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
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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
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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)
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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)
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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
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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
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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
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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
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