Civil litigation
R (Spahiu) v Secretary of State for the Home Department — [2018] WLR(D) 728
TRIBUNAL — Upper Tribunal — Practice and procedure — Statement of facts and grounds in claim for judicial review — Whether capable of amendment without permission — Whether Upper Tribunal having power to review decision to refuse such permission — Tribunals, Courts and Enforcement Act 2007 (c 15), s 10 — CPR r 17.1 — Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rr 6(5), 28
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Civil litigation
MacDonald v D & F Contracts Ltd — [2018] 1 WLR 5695
PRACTICE — Judgment in default — Application to grant — Defendant failing to acknowledge service of claim and filing defence late — Claimant subsequently applying for judgment in default — Whether conditions for judgment in default satisfied — CPR r 12.3
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Civil litigation
Broughal v Walsh Bros Builders Ltd — [2018] 1 WLR 5781
NATURAL JUSTICE — Bias — Apparent bias — Substantive hearing of appeal taking place before judge who previously refused permission to appeal on paper — Whether real possibility of bias — Whether judge’s decision not to recuse herself proper exercise of discretion
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Commercial
PJSC Tatneft v Bogolyubov — [2018] 1 WLR 5705
INJUNCTION — Freezing order — Disclosure — Freezing order made in relation to defendant’s assets — Disclosure order made — Defendant disclosing assets worth in excess of maximum sum frozen and applying to vary disclosure order to require no further disclosure — Whether party subject to freezing order required to disclose assets valued in excess of maximum sum frozen — Exercise of discretion in varying disclosure orders
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Commercial
SCF Tankers Ltd (formerly known as Fiona Trust & Holding Corpn) v Privalov — [2018] 1 WLR 5623
INJUNCTION — Freezing order — Undertaking as to damages — Claimants obtaining worldwide freezing order against defendants having given cross-undertakings as to damages — Claim succeeding to very limited extent — Defendants applying to enforce cross-undertakings — Inquiry into damages — Approach to assessing defendants’ damages
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Costs
Williams v Secretary of State for Business, Energy and Industrial Strategy — [2018] 4 WLR 147
COSTS — Pre-action protocol — Fixed costs — Claim not started under applicable protocol, nor having been subject of Part 7 claim or judgment — Whether claimant’s entitlement to costs limited to fixed costs — CPR Pt 44, rr 45.24, 47.1
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Costs
Danilina v Chernukhin — [2018] WLR(D) 492
COSTS — Security for costs — Foreign claimant — Claimant resident in Russia having no assets within jurisdiction — Real risk of non-enforcement of judgment against claimant — Order for payment of security for defendant’s costs — Defendant challenging quantum — Whether appropriate to reduce level of security by applying sliding scale of risk — Guidance on conditions to be satisfied to make order for security for costs — Whether appropriate to consider merits — CPR r 25.13(2)(a)
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Costs
Boodia v Richard Slade and Co Solicitors — [2018] WLR(D) 725
SOLICITOR — Costs — Assessment — Solicitors submitting separate bills for profit costs and disbursements — Client applying for assessment of interim bills — Whether bill constituting “statute bill” if not including both profit costs and disbursements for relevant period — Solicitors Act 1974 (c 47) (as amended by Legal Services Act 2007 (c 29), s 177, Sch 16, para 65), s 70
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Crime
R v Green (Travis) — [2018] 4 WLR 39
CRIME — Summing up — Defendant’s character — Judge telling jury in summing up that complainant never committing offences or having reputation for untruthfulness — No evidence of complainant’s character before jury — Whether judge undermining character direction given in defendant’s favour — Whether material error in summing up
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Crime
R v Shirt (Alan) — [2018] 4 WLR 154
CRIME — Conspiracy — Conspiracy to defraud — Co-defendants pleading guilty to same offence — Admission in evidence of convictions of co-defendants — Whether evidence of convictions should have been excluded — Police and Criminal Evidence Act 1984 (c 60), ss 74, 78
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Crime
R v Brown (Robert) — [2018] 4 WLR 152
CRIME — Sentence — Causing death by dangerous driving — Offender causing death of two small children by dangerous driving — Sentences ordered to run concurrently — Whether appropriate to make sentences consecutive where two deaths caused — Road Traffic Act 1988 (c 52), s 1(1)
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Crime
R v Electricity North West Ltd — [2018] 4 WLR 148
HEALTH AND SAFETY — Statutory offence — Employer’s liability — Linesman killed carrying out work at height for defendant — Defendant convicted of failing to ensure work at height properly planned — Defendant acquitted of failing to ensure health, safety and welfare of deceased linesman while working at height and to ensure suitable and sufficient risk assessment — Whether verdicts inconsistent — Work at Height Regulations 2005 (SI 2005/735), reg 4(1) — Health and Safety at Work etc Act 1974 (c 37), s 33(1)(c)
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Crime
R v Rochester (Kirk) — [2018] WLR(D) 722
CRIME — Drugs — Possession of psychoactive substance with intent to supply — Substance indirectly stimulating or depressing central nervous system — Whether “psychoactive substance” — Psychoactive Substances Act 2016 (c 2), s 2
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Crime
R v Marchant (Mark) — [2018] WLR(D) 724
CRIME — Practice — Trial — Defendant charged with rape — Judge questioning defendant at length during examination-in-chief — Judge referring to fact defendant prohibited from mentioning — Judge warning defendant of adverse consequences if attacking complainant’s character or advancing own good character in evidence — Judge summing up evidence to jury highlighting areas where defendant’s evidence adverse to his case — Whether judge intervening improperly during examination-in-chief — Whether judge summing up case in way fundamentally unfair — Whether trial fair — Youth Justice and Criminal Evidence Act 1999 (c 23), s 41
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Employment
Governing Body of Tywyn Primary School v Aplin — [2018] ICR D17
INDUSTRIAL RELATIONS — Employment Appeal Tribunal — Appeal to — Employment tribunal upholding claims of unfair dismissal and sexual orientation discrimination — Employer appealing — Claimant obtaining extension of time to file answer — Answer including cross-appeal — Whether strict approach to extensions of time for appeals also applying to cross-appeals — Whether claimant to be granted extension of time — Employment Appeal Tribunal Rules 1993 (SI 1993/2854), rr 6, 37
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Employment
Advisory Conciliation and Arbitration Service v Public and Commercial Services Union — [2018] ICR 1793
INDUSTRIAL RELATIONS — Consultation and information — Undertaking — Union complaint to Central Arbitration Committee of failure by Acas to consult with employees pursuant to collective agreement — Whether Acas “undertaking” carrying out economic activity for purposes of complaint — Whether activities excluded as constituting exercise of public powers — Whether Committee having jurisdiction to consider complaint — Information and Consultation of Employees Regulations 2004 (SI 2004/3426), reg 2
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Employment
IBM United Kingdom Holdings Ltd v Dalgleish — [2018] ICR 1681
EMPLOYMENT — Contract of employment — Implied term — Employer proposing changes to defined benefit parts of occupational pension schemes — Changes to be implemented by exercise of non-fiduciary discretionary power of principal employer — Changes disappointing employees’ reasonable expectations — Whether changes lawful — Whether in breach of employer’s implied duty of trust and confidence — Whether in breach of principal employer’s obligation of good faith — Test to be applied
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Employment
Kilraine v Wandsworth London Borough Council — [2018] ICR 1850
EMPLOYMENT — Protected disclosure — Qualifying disclosure — Employee complaining to employer of bullying and harassment and failure to comply with safeguarding obligations — Whether disclosure of information — Necessary content for statement to constitute “disclosure of information” — Whether employee’s complaint “qualifying disclosure” — Employment Rights Act 1996 (c 18), s 43B(1) (as inserted by Public Interest Disclosure Act 1998 (c 23), s 1)
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Employment
R v Lear (Jonathan) — [2018] ICR 1775
HEALTH AND SAFETY — Statutory offence — Breach of duty — Hotel business carried on by partnership — Individual partners prosecuted in relation to death of hotel guest who fell out of window — Whether foreseeable risk of guest falling out of window — Whether partnership should have been prosecuted instead of partners — Health and Safety at Work etc Act 1974 (c 37), s 3(1)
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Employment
Addison Lee Ltd v Gascoigne — [2018] ICR 1826
EMPLOYMENT — Working time provisions — Worker — Cycle courier delivering parcels through GPS tracker and app tracked by company controller — Contract providing claimant independent contractor and no obligation on claimant to provide services or on company to provide work — Whether contract true reflection of relationship — Whether claimant “worker” — Working Time Regulations 1998 (SI 1998/1833), reg 2(1)
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Employment
Lunn v Aston Darby Group Ltd — [2018] ICR D11
INDUSTRIAL RELATIONS — Employment tribunals — Adjournment of hearing — Claimants instructing counsel via direct access scheme — Tribunal listing interim relief hearing on date counsel unable to attend due to prior court commitment — Counsel requesting postponement and offering dates a few days later — Whether postponement precluded unless justified by special circumstances — Whether special circumstances existing — Employment Rights Act 1996 (c 18), s 128
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Employment
Singh v Glass Express Midlands Ltd — [2018] ICR D15
EMPLOYMENT — Unfair dismissal — Remedy — Dismissal for misconduct — Dismissal procedurally unfair — Tribunal finding claimant’s conduct contributed 100% to dismissal — Tribunal making nil basic and compensatory awards — Whether appropriate — Employment Rights Act 1996 (c 18), ss 122, 123
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Employment
Reading Borough Council v James — [2018] ICR 1839
DISCRIMINATION — Sex — Equal pay — Claimants’ work rated as of equal value to that of chosen comparators — Consequent modification of claimants’ contracts to provide for pay at same rate as comparators — One comparator changing post while others performing same job at lower rate of pay remaining in post — Whether claimants retaining right to higher pay of chosen comparator — Pay of another chosen comparator reduced — Whether claimants retaining right to pay at rate applicable when contracts modified — Equal Pay Act 1970 (c 41), s 1(2)(c)
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Employment
Trustees of the William Jones’s Schools Foundation v Parry — [2018] ICR 1807
INDUSTRIAL RELATIONS — Employment tribunals — Claim — Claim stating claim but failing to provide any details — Rule requiring claim to be rejected if not able to “sensibly be responded to” — Whether rule authorised by primary legislation — Employment judge accepting claim — Whether “judgment” — Whether claim to be rejected — Employment Tribunals Act 1996 (c 17), s 7 (as amended by Employment Rights Dispute Resolution Act 1998 (c 8), s 2 and Employment Act 2002 (c 22), s 25) — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), Sch 1, rr 1(3)(b), 12(1)(2)
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Employment
Miah v Axis Security Services Ltd — [2018] ICR D13
INDUSTRIAL RELATIONS — Employment tribunals — Claim — Statutory time limit for presenting claim expiring on non-working day — Claim arriving at tribunal office by post on following day — Whether deemed to be presented in time — Employment Rights Act 1996 (c 18), s 111(2) — Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), Sch 1, r 4(2)
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European Union
Proceedings concerning AY — [2018] 4 WLR 156
EXTRADITION — European arrest warrant — Validity — Requested person having status of witness in previous proceedings concerning same acts — Criminal proceedings against requested person closed — Issue of several European arrest warrants against same person — Grounds for refusal to execute — Council Framework Decision 2002/584/JHA (as amended by Council Framework Decision 2009/299/JHA), arts 1(2), 3(2), 4(3)
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European Union
Zurich Insurance plc v Abnormal Load Services (International) Ltd — [2018] 4 WLR 155
CONFLICT OF LAWS — Jurisdiction under Council Regulation — Place of performance of contractual obligation — Place of provision of services — Contract for carriage of goods between two member states — Route consisting of several stages involving number of means of transport — Whether both place of dispatch and place of delivery of goods constituting places where transport services provided — Council Regulation (EC) No 44/2001, art 5(1)(b)
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European Union
Fundo de Garantia Automóvel v Juliana — [2018] 1 WLR 5798
ROAD TRAFFIC — Third party insurance — Driving uninsured — Uninsured vehicle parked on private land — Vehicle taken without owner’s authorisation — Accident resulting in death — National compensation fund paying damages — Whether fund entitled to reclaim damages from owner of uninsured vehicle — Council Directive 72/166/EEC, art 3(1) — Council Directive 84/5/EEC , art 1(4)
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Family
In re W (A Child) (Return Order: Power to Set Aside) — [2018] 4 WLR 149
CHILDREN — Custody rights — Breach — Whether High Court having jurisdiction to set aside final order made under the Hague Child Abduction Convention 1980 — Guidance as to application to set aside — Child Abduction and Custody Act 1985 (c 60), Sch 1, art 13(b) — Hague Convention on the Civil Aspects of International Child Abduction (1980)
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Family
In re G (Children) (Jurisdiction: Presence in England and Wales) — [2018] 3 WLR 1679
CHILDREN — Orders with respect to children — Prohibited steps order — Prohibited steps order preventing mother returning from England to Canada with children — Order discharged on basis children not habitually resident in England and Wales and Canadian courts having jurisdiction — Whether presence of children in England conferring jurisdiction under Council Regulation if rival jurisdiction not member state — Whether residual jurisdiction under national law if Council Regulation not engaged — Family Law Act 1986 (c 55) (as amended by European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations 2005 (SI 2005/265), regs 8(2), 10, Parental Responsibility and Measures for the Protection of Children (International Obligations) (England and Wales and Northern Ireland) Regulations 2010 (SI 2010/1898), reg 1(2), Sch, para 5(b) and Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (SI 2005/3336), art 5), ss 2(1)(b), 3(1) — Council Regulation (EC) No 2201/2003, arts 8, 13, 14
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Land law
No 1 West India Quay (Residential) Ltd v East Tower Apartments Ltd — [2018] 1 WLR 5682
LANDLORD AND TENANT — Assignment of lease — Consent — Landlord's consent to assignment not to be unreasonably withheld — Landlord withholding consent for three reasons — Judge holding one bad reason vitiating two good reasons — Landlord appealing on ground that judge had erred in approach — Whether judge applying proper test — Approach to be taken — Landlord and Tenant Act 1988 (c 26), ss 1(3), 4
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Public law
M v Secretary of State for Justice — [2018] WLR(D) 727
Mental disorder — Tribunal — Discharge of patient — Patient detained indefinitely in hospital under post-conviction restriction order — Patient seeking order for conditional discharge from hospital to community placement with restrictions as to patient’s movements — Patient agreeing to proposed conditions notwithstanding deprivation of liberty — Whether tribunal having power to order discharge on conditions involving deprivation of liberty — Mental Health Act 1983 (c 20), ss 42(2), 73(1)(2) (as amended by Mental Health Act 1983 (Remedial) Order 2001 (SI 2001/3712), art 4, Mental Health Act 2007 (c 12), s 4(9) and Transfer of Tribunal Functions Order 2008 (SI 2008/2833), art 9, Sch 3, para 54) — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5
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Public law
In re B-P (Children) (Adoption or Fostering) — [2018] 4 WLR 153
CHILDREN — Care proceedings — Placement order — Children removed into foster care — Local authority applying for placement orders — Refusal of placement orders for three youngest children on grounds of benefit from contact with parents and siblings — Whether recorder giving adequate consideration to advantages of adoption and disadvantages of long-term fostering versus adoption — Adoption and Children Act 2002 (c 38), s 21
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Public law
R (McCarthy and Stone Retirement Lifestyles Ltd) v Mayor of London — [2018] PTSR 1996
Local Government — Powers — Action by local authority — Mayor of London issuing supplementary planning guidance on affordable housing — Whether guidance policy — Whether guidance unlawful — Greater London Authority Act 1999 (c 29), s 334 — Planning and Compulsory Purchase Act 2004 (c 5), s 38(6)
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Public law
R (British Homeopathic Association) v National Health Service Commissioning Board — [2018] PTSR 2031
NATIONAL HEALTH SERVICE — Medical treatment — Allocation of funds — Statutory body issuing guidance to clinical commissioning groups on items not routinely to be prescribed in primary care — Whether guidance issued under correct statutory power — Whether power to “provide assistance or support to a clinical commissioning group” including giving of such guidance — Whether amounting to guidance to clinical commissioning groups on “discharge of their commissioning functions” — National Health Service Act 2006 (c 41) (as inserted by Health and Social Care Act 2012 (c 7), s 26), ss 14Z8, 14Z10
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Public law
SH v Secretary of State for Work and Pensions — [2018] PTSR 2021
SOCIAL SECURITY — Child support maintenance — Assessment — Non-resident parent’s income calculated for child support purposes as amount charged to tax before deduction of expenses — Whether expenses to be deducted consistently with income tax legislation — Whether requirement to calculate income before deduction of expenses to be disapplied — Income Tax (Earnings and Pensions) Act 2003 (c 1), Pt 5 — Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677), reg 36
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Public law
Birmingham City Council v Jones (Secretary of State for the Home Department intervening) — [2018] 3 WLR 1695
INJUNCTION — Gang-related violence — Exercise of statutory jurisdiction — Statutory power to grant injunction in restraint of gang-related violence — Whether involving determination of criminal charge — Appropriate standard of proof — Whether scheme compatible with Convention right to fair trial — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 6 — Policing and Crime Act 2009 (c 26), s 34 (as amended by Serious Crime Act 2015 (c 9), s 51) — Anti-social Behaviour, Crime and Policing Act 2014 (c 12), s 1
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Public law
C v Governing Body of a School — [2018] WLR(D) 721
DISCRIMINATION — Disability — Education — Autistic child temporarily excluded from school because of aggressive behaviour linked to his disability — First-tier tribunal rejecting parents’ complaint of disability discrimination on ground that tendency to physical abuse excluded from relevant statutory definition of disability — Whether discrimination in breach of Convention — Whether relevant domestic legal provisions to be read down or disapplied — Human Rights Act 1998 (c 42), ss 3, 6(1), Sch 1, Pt I, art 14, Pt II, art 2 — Equality Act 2010 (c 15), ss 6(1), 85(1) — Equality Act (Disability) Regulations 2010(SI 2010/2128) reg 4(1)(c)
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Public law
R (Help Refugees Ltd) v Secretary of State for the Home Department (Centre for Advice on International Rights in Europe intervening) — [2017] WLR(D) 723
IMMIGRATION — Asylum — Child — Secretary of State’s consultation with local authorities to ascertain number of unaccompanied asylum-seeking children to be placed in United Kingdom pursuant to legislation addressing refugee crisis in Europe — Whether consultation carried out in fair and lawful manner — Whether process adopted for assessing children in France for relocation to UK meeting requirements of fairness — Whether reasons given for rejecting children failing to comply with criteria adequate — Immigration Act 2016 (c 19), s 67
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Tax
The First De Sales Limited Partnership v Revenue and Customs Comrs — [2018] WLR(D) 726
REVENUE — Income tax — Tax avoidance — Taxpayer and employee entering into deed of restrictive undertaking — Taxpayer making large payment pursuant to deed as consideration for giving of restrictive undertaking — Whether payment made “in respect of” undertaking — Whether reasonable prospect of establishing payment tax deductible — Income Tax (Earnings and Pensions) Act 2003 (c 1), s 225
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Tax
Zipvit Ltd v Revenue and Customs Comrs — [2018] 1 WLR 5729
REVENUE — Value added tax — Deductibility of input tax — Supplies of services to VAT-registered trader wrongly assumed by parties to have been exempt from VAT — Price paid by trader said to be exclusive of VAT and invoices stating supplies exempt — Court of Justice ruling subsequently establishing that supplies properly chargeable to VAT — Whether taxpayer entitled to recover as input tax credit tax element of consideration paid for supplies — Whether invoices meeting requirement to contain details of VAT rate applied — Whether price paid by trader to be treated as including VAT — Whether “VAT due or paid” — Value Added Tax Act 1994 (c 23), s 19(2) — Council Directive 2006/112/EC, arts 73, 78(a), 168(a), 178, 226
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Tort
MNX v Khan — [2017] WLR(D) 718
MEDICAL PRACTITIONER — Negligence — Causation — Wrongful birth — General practitioner negligently failing to refer claimant for genetic testing to determine whether she carried haemophilia gene — Claimant giving birth to child with haemophilia and autism — Defendant admitting pregnancy would have been terminated had true position on haemophilia been known — Whether defendant liable for additional cost of raising child with autism — Whether damages limited to cost of raising child with haemophilia
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Tort
Sube v News Group Newspapers Ltd — [2018] 1 WLR 5767
DEFAMATION — Libel — Serious harm — Claimants bringing libel proceedings in respect of news articles — Whether collective defamatory and non-defamatory imputations giving rise to actionable harm — Whether collective statements giving rise to actionable harm — Whether imputations causing less than serious harm amounting collectively to serious harm — Defamation Act 2013 (c 26), s 1(1)
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Trusts and Chancery
Singh v Hicken — [2018] WLR(D) 729
BANKRUPTCY — Trustee in bankruptcy — Remuneration — Trustee’s costs and expenses substantially exceeding liabilities of bankrupt’s estate — Bankrupt applying to court for permission to make application on ground trustee’s remuneration and expenses excessive — Judge refusing permission on basis that unlikely that trustee’s costs to be reduced below net realisation figure — Bankrupt appealing on ground that judge applying incorrect test — Whether court considering permission application required to apply guiding principles set out in practice direction — Whether burden of proof on trustee to show remuneration and expenses exceeding available surplus such that permission to be refused — Insolvency Rules (England and Wales) 2016 (SI 2016/1024), r 18.35(4),(5) — Practice Direction: Insolvency Proceedings (2014), para 21.2.3
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Trusts and Chancery
Azuonye v Kent — [2018] 4 WLR 157
BANKRUPTCY — Income payments order — Subsequent bankruptcy — Income payments order made in first bankruptcy — Second bankruptcy order made following discharge of first order — Whether second bankruptcy order automatically discharging income payments order — Insolvency Act 1986 (c 45), ss 285(3), 335(2), 310
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