Civil litigation
Stokoe Partnership Solicitors v Grayson — [2021] WLR(D) 261
PRACTICE — Affidavit — Cross-examination — Claimant seeking disclosure order in Norwich Pharmacal proceedings — Application for cross-examination of deponent — Guidance on circumstances in which defendant to claim could be cross-examined prior to trial — CPR r 32.7(1)
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Civil litigation
Alta Trading UK Ltd (formerly Arcadia Petroleum Ltd) v Bosworth — [2021] WLR(D) 255
INJUNCTION — Interim — Undertaking as to damages — Freezing injunction granted against defendants subject to claimant’s undertaking in damages — Defendant applying for increase in fortification of undertaking — Test for fortification of undertaking in damages — Whether application to be granted
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Civil litigation
Wormald v Ahmed — [2021] WLR(D) 248
PRACTICE — Settlement of action — Offer to settle — Claim by protected party — Defendant making Part 36 offer of settlement — Offer accepted on claimant’s behalf — Defendant then seeking to withdraw offer in light of claimant’s death — Whether offer capable of being withdrawn following acceptance on behalf of protected party — Whether court’s approval required before settlement binding — CPR rr 21.10, 36.11, 36.14
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Commercial
Royal Mail plc v Office of Communications — [2021] WLR(D) 266
COMPETITION — Abuse of dominant position — Exclusionary effect on market — Market for distribution of bulk direct advertising mail — Competition regulator finding that dominant undertaking abusing position — Scope of “as efficient competitor” test — Whether regulator able to rely on test to establish anti-competitive pricing practice — Whether regulator required to treat test as either determinative or highly relevant
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Commercial
Vestel Elektronik Sanayi Ve Ticaret AS v Access Advance LLC — [2021] 4 WLR 60
PATENT — Licence — Standard essential patents — Standard-setting organisation requiring owners of patents declared to be essential to implementation of standards to undertake to grant licences to third parties on fair, reasonable and non-discriminatory terms — Claimant needing licence to sell televisions in United Kingdom — Company representing patentee incorporated in United States of America — Claimant seeking declaration that licence not offered on fair, reasonable and non-discriminatory terms — Claimant seeking permission to serve claim out of jurisdiction on basis claim relating wholly or principally to property within the jurisdiction — Determination of appropriate forum to settle terms of licence — Whether court’s declaratory jurisdiction engaged where “claim” not based on existence of legal right — Whether “useful purpose” only criterion needed to engage declaratory jurisdiction — CPR PD 6B, para 3.1(11)
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Commercial
Alpha Marine Corpn v Minmetals Logistics Zhejiang Co Ltd (The Smart) — [2021] WLR(D) 257
SHIPPING — Charterparty — Time charter — Owners chartering vessel for time charter trip — Charterers sub-chartering vessel pursuant to voyage charter providing freight payable even if cargo lost — Owners issuing bills of lading providing freight payable as per voyage charter — Vessel lost during voyage — Charterers issuing freight invoice to shippers pursuant to voyage charter — Before freight paid, owners issuing freight invoice to shippers under bills of lading and revoking charterers’ authority to receive freight — Shippers making partial payment of freight into escrow account but later wound up — Owners bringing claim against charterers in arbitration — Tribunal holding charterparty containing implied obligation that owners would not revoke unless hire and/or sums due to them under charterparty and, no such sums being due, owners having breached that obligation — Owners appealing on question of law — Whether implied term of time charterparty that owners may not revoke charterers’ authority to collect freight payable under bills of lading unless hire and/or sums due to owners under charterparty — Whether appeal to be allowed — Arbitration Act 1996 (c 23), s 69 — New York Produce Exchange form (1993)
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Commercial
Republic of Sierra Leone v SL Mining Ltd — [2021] Bus LR 704
ARBITRATION — Arbitrator — Jurisdiction — Arbitration agreement providing for three-month period for endeavours to reach amicable settlement before arbitration to be commenced — Defendant commencing arbitration before end of period — Arbitrators accepting jurisdiction — Whether claimant’s challenge to alleged prematurity of request for arbitration going to substantive jurisdiction of tribunal and thus susceptible to challenge before court — Arbitration Act 1996 (c 23), ss 30(1)(c), 67
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Commercial
Motacus Constructions Ltd v Paolo Castelli SpA — [2021] Bus LR 717
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” 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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Commercial
Burnett or Grant v International Insurance Co of Hanover Ltd — [2021] 1 WLR 2465
INSURANCE — Liability insurance — Public liability — Door steward causing man’s death by applying neck hold — Door steward’s employer insured against liability to pay damages arising out of accidental injury — Policy containing exclusion for “liability arising out of deliberate acts” by employees — Whether exclusion applying to all acts intended to cause injury — Whether exclusion applying to reckless acts
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Crime
R v Tudge — [2021] WLR(D) 259
CRIME — Evidence — Cross-admissibility — Prosecution not applying for the admission of bad character evidence — Evidence nevertheless admitted — Whether conviction unsafe
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Crime
R v T — [2021] 4 WLR 59
CRIME — Sexual offence — Rape — Consent — Statutory provision excluding evidence of complainant’s previous sexual behaviour — Whether questions relating to complainant’s sexual identity suggestive of sexual activity — Whether such questions to be excluded — Youth Justice and Criminal Evidence Act 1999 (c 23), ss 41, 42
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Crime
R (Latif) v Secretary of State for Justice — [2021] 4 WLR 61
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 — Criminal Justice Act 2003 (c 44), ss 226, 227, 236A, 250 — Terrorism Act 2006 (c 11), s 5(1)
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Crime
Rybak v District Court in Lublin, Poland — [2021] WLR(D) 253
EXTRADITION — Compatibility with Convention rights — Respect for family life — District judge ordering extradition of requested person to European Union member state to serve remaining sentence under conviction warrant — Whether extradition breaching Convention right to respect for family life — Whether extradition proportionate — Whether district judge ought to have considered difficulties in requested person returning to United Kingdom after its withdrawal from European Union — Whether such “Brexit uncertainty” forming part of objective and subjective analysis in conducting balancing exercise — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 — Extradition Act 2003 (c 41), Pt 1
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Crime
R v Dawson (Carol) — [2021] WLR(D) 250
CRIME — Homicide — Murder — Sentence — Minimum term of imprisonment — Use of firearm — Meaning of firearm — Whether confined to deadly weapons — Criminal Justice Act 2003 (c 44), Sch 21, para 5(2)(b)
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Crime
Szalai v Tribunal of Veszpre, Hungary — [2021] WLR(D) 249
EXTRADITION — European arrest warrant — Grounds for non-execution — Requested person appealing against extradition to Hungary on ground he would be subjected to inhuman and degrading treatment if extradited — Hungarian Ministry of Justice giving personal assurance guaranteeing compliance with requested person’s human rights — Appeal court refusing to admit fresh evidence alleging Hungary had breached previous assurances given to others extradited there from Germany — Whether fresh evidence admissible — Whether special test of admissibility for evidence alleging breach of assurances given to third state — Extradition Act 2003, ss 26, 27(4)(b)
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Crime
R (Russnak-Johnston) v Reading Magistrates’ Court — [2021] 1 WLR 2444
PLANNING — Planning control — Planning contravention notice — Local planning authority serving planning contravention notices on claimant — Clamant failing to provide documents required by second notice and making allegedly false or misleading statements in response to both notices — Authority laying information before magistrates’ court charging offences of failing to comply with requirement of planning contravention notice and making false or misleading statements in purported compliance with such requirement — Whether requirement to provide documents ultra vires power to serve planning contravention notice — Whether prosecution time-barred — Whether offences continuing or once-and-for-all offences — Magistrates’ Courts Act 1980 (c 43), s 127 — Town and Country Planning Act 1990 (c 8), ss 171C, 171D
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Crime
R v Plaku (Isuf) — [2021] WLR(D) 247
CRIME — Sentence — Plea of guilty — Reduction in sentence — Guidance — Sentencing Act 2020 (c 17), s 73
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Crime
R v Chipunza — [2021] WLR(D) 245
CRIME — Burglary — Burglary of a hotel room — Directions to the jury as to the meaning of dwelling — — Whether hotel room a dwelling — Theft Act 1968 (c 60), s 9(1)(a)
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Employment
Wisbey v Comr of the City of London Police — [2021] WLR(D) 264
DISCRIMINATION — Sex — Employment — Employment tribunal finding unintentional indirect discrimination — Tribunal making declaration but refusing compensation — Domestic provisions requiring tribunal to consider making declaration before making compensation award — Whether such provisions restricting availability of compensation award — Whether incompatible with European law — Equality Act 2010 (c 15), s 124(4)(5) — Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), art 13 — Charter of Fundamental Rights of the European Union, art 47
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Family
An NHS Trust v P — [2021] WLR(D) 262
Mental disorder — Incapable person — Capacity — Expert concluding adult lacking capacity to consent to medical treatment but having capacity to conduct litigation of resulting proceedings — Expert opinion amended and Official Solicitor appointed — Whether adult incapable of acting as litigant in person having capacity to appoint legal representation to conduct litigation — Whether adult having litigation capacity
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Family
AA v AHM (Practice Note) — [2021] 4 WLR 58
PRACTICE — Family proceedings — Financial provision after overseas divorce — Allocation of applications for permission to proceed — Guidance on allocation to judge of appropriate level — FPR r 8.26(a) — Family Court (Composition and Distribution of Business) Rules 2014 (SI 2014/840), r 15, Sch 1, para 4(a)
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Family
In re F (Children) — [2021] WLR(D) 252
CHILDREN — Care proceedings — Special guardianship orders — Local authority bringing care proceedings in relation to twin sisters — Unopposed special guardianship order made in favour of mother’s former partner — Mother subsequently seeking leave to discharge special guardianship order — Whether special guardianship orders and care orders legally incompatible — Whether special guardianship order to be discharged — Children Act 1989 (c 41), ss 14D, 33, 91
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IP and Media
Bentley 1962 Ltd v Bentley Motors Ltd — [2021] Bus LR 736
Trade mark — Infringement — Use — Trade mark legislation extending scope of trade mark owner’s rights — Defendant in infringement proceedings relying on defence in transitional provisions for continued use of sign not amounting to infringement under old law — Scope of defence — Observations on interpretation of transitional provisions in intellectual property legislation — Trade Marks Act 1994 (c 26), Sch 3, para 4
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Public law
Brandt v Comr of Police (Montserrat) — [2021] WLR(D) 267
PRACTICE — Abuse of process — Proceedings brought for improper purpose — Claimant due to stand trial on criminal charges — Prosecution evidence obtained from search of claimant’s cell phones — Claimant alleging search unlawful — Administrative proceedings brought seeking declaration that evidence inadmissible — Whether proceedings abuse of process — Whether declaration appropriate
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Public law
R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government — [2021] WLR(D) 263
Local Government — Council meetings — Meetings held in public — Whether meeting held in public where only remote access permitted — Local Government Act 1972 (c 70), Sch 12
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Public law
Secretary of State for Transport v Curzon Park Ltd — [2021] WLR(D) 260
COMPULSORY PURCHASE — Compensation — Certificate of alternative development — Landowners of four contiguous sites separately seeking certificate that planning permission for various classes of development would have been granted but for compulsory acquisition of land for same underlying scheme — Local planning authority considering each application in isolation — Whether decision-maker entitled to take into account applications for certificate relating to other land arising from compulsory acquisition of land for same underlying scheme — Land Compensation Act 1961 (9 & 10 Eliz 2, c 33), ss 14, 17
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Public law
R (Mahabir) v Secretary of State for the Home Department — [2021] WLR(D) 258
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
Sastry v General Medical Council — [2021] WLR(D) 256
MEDICAL PRACTITIONER — Medical Practitioners Tribunal — Fitness to practise — Tribunal determining fitness to practise impaired and imposing sanction of erasure — Doctor appealing against sanction — Proper approach to appeal against fitness to practise sanctions — Medical Act 1983 (c 54), ss 40, 40A
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Public law
R (M) v Waltham Forest London Borough Council — [2021] WLR(D) 254
CHILDREN — Children in need — Age assessment — Claimant claiming to be unaccompanied child asylum seeker — Local authority carrying out age assessment and concluding claimant adult — Claimant bringing claim for judicial review challenging lawfulness of decision-making process — Authority applying for unless order requiring claimant’s consent and co-operation to preparation of expert report on his teeth and age with claim to be struck out in event of non-compliance — Whether unless order to be made
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Public law
R (ST) v Secretary of State for the Home Department — [2021] WLR(D) 251
SOCIAL SECURITY — Welfare benefits — Universal credit — Migrant mother of British child on ten-year route to settlement — Mother granted successive periods of leave to remain subject to no recourse to public funds condition — Whether condition incompatible with Convention right to protection from inhuman or degrading treatment — Whether condition unlawfully discriminatory — Whether regime in immigration rules and instructions to caseworkers unlawful — Whether breach of public sector equality duty — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts, 3, 8 — Borders, Citizenship and Immigration Act 2009 (c 11), s 55 — Equality Act 2010 (c 15), ss 9, 19, 29(6), 149(1) — Welfare Reform Act 2012 (c 5), ss 3(1)(4(1)(c)(5) — Immigration Rules, Appendix FM, para GEN 1.11A
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Public law
R (Fratila) v Secretary of State for Work and Pensions (AIRE Centre intervening) — [2021] PTSR 764
SOCIAL SECURITY — Welfare benefits — Universal credit — Claim for universal credit by Romanian national living in United Kingdom with right to reside based on “pre-settled” status — Claim refused by virtue of amendment to social security rules preventing reliance on pre-settled status to meet residence tests on which entitlement to benefit conditional — Whether unlawful discrimination contrary to European Union law — Universal Credit Regulations 2013 (SI 2013/376), reg 9(1)(2)(3)(c)(i) — Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 (SI 2019/872) — Immigration Rules, Appendix EU — FEU Treaty, art 18 — Parliament and Council Directive 2004/38/EC, art 24
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Public law
R (Dolan) v Secretary of State for Health and Social Care — [2021] 1 WLR 2326
PUBLIC HEALTH — Control of disease — Power to make regulations — Secretary of State making regulations imposing restrictions on individuals and businesses in response to Covid-19 pandemic — Whether regulations ultra vires — Public Health (Control of Disease) Act 1984 (c 22), s 45C — Health Protection (Coronavirus, Restrictions) (England) Regulations (SI 2020/350)
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Public law
R (DMA) v Secretary of State for the Home Department — [2021] 1 WLR 2374
IMMIGRATION — Failed asylum seeker — Provision of accommodation — Secretary of State accepting statutory duty to provide accommodation for destitute failed asylum seekers — Whether accommodation provided within reasonable time — Whether Secretary of State under duty to monitor provision of such accommodation — Human Rights Act 1998 (c 42), s 6, Sch 1, Pt I, art 3 — Immigration and Asylum Act 1999 (c 33), s 4(2)
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Public law
R (Topadar) v Secretary of State for the Home Department — [2021] 1 WLR 2307
IMMIGRATION — Leave to remain — Variation — Secretary of State refusing application to vary leave to remain — Applicant seeking administrative review of refusal — Whether applicant permitted to amend application to vary while administrative review still pending — Whether applicant’s existing leave to remain extended until amended application determined — Whether application “decided” when refusal made or when administrative review concluded — Immigration Act 1971 (c 77), s 3C — Immigration Rules, Appendix A, para 77J, Appendix AR
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Public law
Solaria Energy UK Ltd v Department for Business, Energy and Industrial Strategy — [2021] 1 WLR 2349
HUMAN RIGHTS — Peaceful enjoyment of possessions — Deprivation of property — Company contracting to supply large number of solar panels — Company forced to renegotiate contract at lower rate following publication of unlawful Government proposal to reduce subsidies payable by electricity supply companies for power generated by solar panels — Company bringing claim for wrongful interference with Convention right to peaceful enjoyment of possessions — Claim brought nearly six years after expiry of initial one-year statutory limitation period — Whether contract constituting “possession” for purposes of Convention right — Whether claim to be struck out on grounds of delay — Human Rights Act 1998 (c 42), s 7(5), Sch 1, Pt II, art 1
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Tax
R (M Sport Ltd) v Revenue and Customs Comrs — [2021] 4 WLR 62
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 (c 26), ss 207, 222
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Tax
Skatteforvaltningen v Solo Capital Partners LLP — [2021] WLR(D) 246
CONFLICT OF LAWS — Revenue laws — Enforceability in another state — Foreign national tax authority bringing claims against taxpayers in relation to alleged wrongful tax refund payments — Whether claims offending against rule of English law that courts having no jurisdiction to entertain actions for enforcement of revenue of foreign state — Whether matter “civil and commercial matter” under European Regulation or Convention ousting rule of English law where applicable — Whether claims admissible — Parliament and Council Regulation (EU) No 1215/2012, art 1(1) — Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2007, art 1(1)
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Tort
Glossop Cartons and Print Ltd v Contact (Print & Packaging) Ltd — [2021] WLR(D) 265
Damages — Measure of damages — Misrepresentation — Claimants induced to enter into agreements for purchase of business assets by fraudulent misrepresentations of defendant sellers — Proper assessment of direct loss caused by fraudulent misrepresentation — Causal link required for consequential loss
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Trusts and Chancery
In re Derev — [2021] Bus LR 685
INSOLVENCY — Cross-border insolvency — Foreign proceedings — Court recognising Russian bankruptcy proceeding against bankrupt living in London — Bankruptcy manager seeking continuation of freezing order preventing bankrupt from dealing with assets — Whether court having jurisdiction to continue order under power to grant interim relief in aid of foreign proceedings — Whether jurisdiction under general power to grant injunctions — Whether freezing order to be continued — Senior Courts Act 1981 (c 54), s 37 — Civil Jurisdiction and Judgments Act 1982 (c 25), s 25(1) — Cross-border Insolvency Regulations 2006 (SI 2006/1030), Sch 1, art 21
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Trusts and Chancery
Rittson-Thomas v Oxfordshire County Council — [2021] 2 WLR 993
TRUSTS — Resulting trusts — School site — Grantor conveying land for use as site for school — School subsequently relocating to new site — Land lying vacant between relocation of school and sale — Whether original site being used “as a site for a school … or otherwise for the purposes of education” between relocation of school and sale — Whether grantor’s successors in title entitled to receive proceeds of sale — School Sites Act 1841 (4 & 5 Vict c 38), ss 2, 14 — Reverter of Sites Act 1987 (c 15), s 1
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