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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.


Commercial
In re AIG Europe Ltd — [2018] WLR(D) 668
FINANCIAL SERVICES — Business transfer — Sanction — Insurance company seeking court’s sanction of scheme to transfer business — Transfer scheme proposing transfer of assets and liabilities to be achieved in part by court’s express statutory power to transfer and in part by cross-border merger — Whether sanction of scheme permissible — Financial Services and Markets Act 2000 (c 8), ss 104, 111, 112(1)(a) — Companies (Cross-Border Mergers) Regulations 2007 (SI 2007/2974), reg 6 — Parliament and Council Directive 2017/1132, art 131
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Commercial
R (Berkeley Burke SIPP Administration Ltd) v Financial Ombudsman Service Limited — [2018] WLR(D) 669
FINANCIAL SERVICES — Ombudsman scheme — Jurisdiction — Claimant providing and administering self-invested personal pensions — Claimant accepting application by customer to invest pension funds in particular scheme — Scheme proving to be fraudulent — Ombudsman upholding complaint against claimant by customer — Whether ombudsman entitled to find claimant failing to act fairly and reasonably in dealings with customer by neglecting to investigate scheme prior to accepting investment — Whether impermissibly creating specific new duty of investigation by reference to general principles — Whether such duty conflicting with other specific rules — Financial Services and Markets Act 2000 (c 8) (as amended by Financial Services Act 2012 (c 21), Sch 11, para 4 and Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No 2) Order 2013 (SI 2013/1881), art 10(7)), ss 228(2), 155 — FCA Handbook, Principles for Businesses, principles 2, 6, COB 11.2.19
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Commercial
Anderson v Sense Network Ltd — [2018] WLR(D) 665
FINANCIAL SERVICES — Regulated activities — Accepting deposits — Financial advisory company conducting business as appointed representative of defendant accepting customer deposits to invest in Ponzi scheme — Defendant unaware of scheme — Employee of company tasked by defendant with compliance responsibilities alleged to have known of scheme — Claimants seeking to recover losses from defendant — Claimants alleging defendant required to accept responsibility for appointed representative’s business — Scope of principal’s responsibility for appointed representative’s business — Claimants also alleging defendant to be attributed with knowledge of company’s employee of scheme — Proper construction of principal’s supervisory obligations — Financial Services and Markets Act 2000 (c 8), ss 19, 39 — Financial Services and Markets Act 2000 (Appointed Representatives) Regulations 2001 (SI 2001/1217), reg 2 — FCA Handbook, SUP 12
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Commercial
Marex Financial Ltd v Sevilleja — [2018] 3 WLR 1412
TORT — Cause of action — Inducing default of judgment debt — Claimant obtaining judgment against companies for sums due under contract — Beneficial owner and director of companies allegedly stripping companies of assets post-judgment such that companies unable to meet judgment debt — Claimant claiming against beneficial owner and director in tort to recover judgment debt — Whether rule against reflective loss barring completed cause of action in tort — Whether rule applying to creditor if not shareholder of company
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Commercial
J v B — [2018] WLR(D) 662
ARBITRATION — Award — Serious irregularity — Parties referring dispute to arbitration — Claimants alleging awards affected by serious irregularity and seeking appointment of new arbitrator to determine matter afresh — Whether awards tainted by serious irregularity — Whether awards to be set aside — Whether arbitrator to be removed — Arbitration Act 1996 (c 23), ss 24, 68
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Costs
Mann v Transport for London — [2018] 1 WLR 5104
TRIBUNAL — Upper Tribunal — Costs — Claimants seeking compensation from defendant in Upper Tribunal (Lands Chamber) — Claimants at trial bettering settlement offers rejected by defendant and seeking indemnity costs — Proper approach to awarding costs in Upper Tribunal (Lands Chamber) — Whether indemnity costs available option where claimant at trial bettering offer to settle made by him — Tribunals, Courts and Enforcement Act 2007 (c 15), s 29 — Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (SI 2010/2600), r 10 (as amended by Tribunal Procedure (Amendment No 3) Rules 2013 (SI 2013/1188))
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Crime
R v Evans (Wayne) — [2018] 4 WLR 140
CRIME — Distributing article which infringed copyright — Guidance when sentencing —
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Crime
R v Goodwin (Anthony) — [2018] WLR(D) 667
CRIME — Homicide — Murder — Loss of self-control — Evaluation of evidence of loss of control — Whether “sufficient evidence” for defence to be left to jury — Coroners and Justice Act 2009 (c 25), ss 54, 55
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Crime
R v Hayes (Tom) — [2018] 1 WLR 5060
CRIME — Sentence — Confiscation order — Tainted gift — Property owned jointly by defendant and wife — Whether wife’s interest derived from proceeds of defendant’s crimes — Guidance as to proper approach to making tainted gift appraisal — Proceeds of Crime Act 2002 (c 29), ss 77, 78
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Crime
R v M Najib & Sons Ltd — [2018] 1 WLR 5041
FOOD AND DRUGS — Food safety — Inspector — Monitoring of sheep carcasses to prevent transmissible spongiform encephalopathies — Slaughterhouse operator refusing to provide inspector with samples from sheep for testing — Whether inspector appointed for “purposes of enforcing” Regulations having power to require operator’s assistance to take samples — Whether refusal to assist amounting to criminal offence — Transmissible Spongiform Encephalopathies (England) Regulations 2010 (SI 2010/801), regs 12(1), 17(b)
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Crime
R (Virdee) v National Crime Agency — [2018] 1 WLR 5073
CRIME — Evidence — Production order — Extracts of intercepted phone call transcripts used to obtain production orders — Whether failure to provide full transcripts rendering orders unlawful — Whether material non-disclosure — Whether information if disclosed might reasonably have led court to refuse production order — Police and Criminal Evidence Act 1984 (c 60), s 9
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Employment
British Airways plc v Pinaud — [2018] WLR(D) 673
DISCRIMINATION — Part-time worker — Less favourable treatment — Part-time employee found to have to be available for work proportionately more days more per annum than full-time comparator but paid 50% of comparator’s salary — Whether treatment prima facie less favourable — Whether entitled to remedy if treatment not justified by part-time worker actually working fewer days pro rata than comparator — Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), regs 5(1)(2), 8
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Employment
R (Harvey) v Haringey London Borough Council — [2018] WLR(D) 672
PENSIONS — Pension scheme — Local government pension scheme — Claimant cohabiting with former local government employee who took early retirement — Administering authority for pensions refusing to award survivor’s pension to claimant on death of employee on ground such pension only payable to spouses under applicable pension scheme — Whether refusal to pay survivor’s pension to cohabitee discriminatory — Whether breach of Convention rights — Superannuation Act 1972 (c 11) (as amended by Public Service Pensions Act 2013 (c 25), Sch 8, para 8), ss 7, 12 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 14, Pt II, art 1 — Local Government Pension Scheme Regulations 1997 (SI 1997/1612) (as amended by Local Government Pension Scheme (Civil Partnership) (Amendment) (England and Wales) Regulations 2005 (SI 2005/3069), reg 3), regs 40, 41(1)
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European Union
Valcheva v Babanarakis — [2018] 3 WLR 1386
CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children — Grandparent residing in Bulgaria applying to Bulgarian court for rights of access to grandchild residing in Greece — Concept of “rights of access” — Whether rights of access of grandparents to grandchild coming within scope of Council Regulation in order to determine whether court having jurisdiction to rule on application to be determined on the basis of Regulation or on basis of private international law rules — Council Regulation (EC) No 2201/2003, arts 1(2)(a), 2(7) (10)
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European Union
Christy v Secretary of State for the Home Department — [2018] WLR(D) 664
EUROPEAN UNION — Freedom of movement — Rights of entry and residence — United Kingdom national living with third-country national in Poland — Third-country national lawfully in Poland under ordinary domestic immigration rules — Couple moving to United Kingdom where residence card refused — Whether Secretary of State entitled to refuse residence on ground that parties unmarried — Guidance on relevant factors on consideration of application to reside — Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), reg 9 — FEU Treaty, art 21FEU — Parliament and Council Directive 2004/38/EC, art 3(1)(2)
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Land law
Kazim v Barrow — [2018] WLR(D) 671
LANDLORD AND TENANT — Assured shorthold tenancy — Order for possession — Whether notice to quit having to be served by landlord as at date of notice or landlord as at date possession sought — Housing Act 1988 (c 50), s 21(1)(b) (as amended by Housing Act 1996 (c 52), s 98(2))
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Public law
R (Shepherd) v National Health Service Commissioning Board — [2018] PTSR 1900
NATIONAL HEALTH SERVICE — Health care services — Pricing — Defendant statutory body publishing draft contract for future use in agreements between clinical commissioning groups and health care service providers for provision of health care services — Draft contract providing for fixed payment to provider linked to number of people living in relevant area rather than payment by results — Whether payment mechanism unlawful as being contrary to statutory requirements — Health and Social Care Act 2012 (c 7), ss 115, 116, 117
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Public law
R (City of York Council) v Secretary of State for Housing, Communities and Local Government — [2018] WLR(D) 666
PLANNING — Development — Planning permission — Developer applying to local planning authority to commute affordable housing obligation under subsequently repealed enactment — Whether developer’s entitlement to apply preserved in respect of period before repeal — Whether right to appeal authority’s refusal of application preserved — Interpretation Act 1978 (c 30), s 16(1)(c) — Town and Country Planning Act 1990 (c 8), ss 106BA, 106BC (as inserted by Growth and Infrastructure Act 2013 (c 27), s 7)
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Public law
Webb v Chief Constable of Avon and Somerset Constabulary (Secretary of State for Environment, Food and Rural Affairs intervening) — [2018] 1 WLR 5001
ANIMAL — Dog — Control — Court making contingent destruction order in relation to prohibited dog — Whether power to make order naming person other than owner as “person for the time being in charge of” dog — Meaning of “person for the time being in charge of” — Whether power to order any named person found to be fit and proper person to apply for certificate of exemption — Dangerous Dogs Act 1991 (c 65), s 4B (as inserted by Dangerous Dogs (Amendment) Act 1997 (c 53), s 3(1) and amended by Anti-Social Behaviour, Crime and Policing Act 2014 (c 12), s 107(4)) — Dangerous Dogs Exemption Schemes (England and Wales) Order 2015 (SI 2015/138), art 9
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Public law
Henderson v Comr of Police of the Metropolis — [2018] 1 WLR 5029
ANIMAL — Dog — Control — Application for destruction order in relation to prohibited dog — Individual seeking to participate in application proceedings for purpose of arguing for contingent destruction order so as to allow dog to be re-homed under exemption scheme — That individual not owning dog and never having met it — Whether such individual having standing to intervene in application — Whether capable of being person for time being in charge of dog — Dangerous Dogs Act 1991 (c 65) (as amended by Dangerous Dogs (Amendment) Act 1997 (c 53), s 3(1) and Anti-social Behaviour, Crime and Policing Act 2014 (c 12), ss 107(4)), ss 1, 4B
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Public law
R (Adath Yisroel Burial Society) v Inner North London Senior Coroner — [2018] 3 WLR 1354
CORONER — Powers — Policy — Coroner’s policy excluding prioritisation of deaths for religious reasons — Whether policy unlawfully fettering coroner’s discretion — Whether right to manifest religion or belief infringed — Whether policy discriminating against Jewish and Muslim families in breach of Convention or statutory rights — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 9, 14 — Equality Act 2010 (c 15), s 19
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Public law
KO (Nigeria) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) — [2018] WLR(D) 660
IMMIGRATION — Deportation order — Challenge — Claim of breach of Convention right to private life — Deportee leaving behind child with British citizenship — Whether effect on child “unduly harsh” — Whether question to be determined solely on child-centric considerations — Whether decision-maker also entitled to take account of countervailing public interest considerations including conduct of parent resulting in deportation order — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 — Nationality, Immigration and Asylum Act 2002 (c 41), s 117C(5) (inserted by Immigration Act 2014 (c 22), s 19)
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Public law
R (Network Rail Infrastructure Ltd) v Secretary of State for Environment, Food and Rural Affairs — [2018] WLR(D) 663
PLANNING — Planning permission — Conditions — Grant of planning permission for residential development — Condition restricting completion of balance of development until order for stopping up of footpath confirmed or not confirmed — Inspector declining to confirm order as condition not meeting statutory test of necessity — Whether statutory test properly applied — Whether planning condition properly construed — Whether stopping up order “necessary” to implementation of planning permission — Whether decision to be quashed — Town and Country Planning Act 1990 (c 8) (as amended by Planning and Compulsory Purchase Act 2004 (Commencement No 9 and Consequential Provisions) Order 2006 (SI 2006/1281), art 5(c), Restricted Byways (Application and Consequential Amendment of Provisions) Regulations 2006 (SI 2006/1177), reg 2, Sch 1(1), para 1, Growth and Infrastructure Act 2013 (c 27), s 12(2)(4)(5) and Planning (Wales) Act 2015 (anaw 4), s 38(2)(3)(a)), ss 257, 259
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Tax
Higgins v Revenue and Customs Comrs — [2018] 4 WLR 138
REVENUE — Capital gains tax — Main residence relief — Taxpayer purchasing property off-plan — Property taxpayer’s main residence from date of completion — Taxpayer claiming relief from capital gains tax on disposal of property — Whether period of ownership determined by reference to date of completion or date of exchange of contracts — Taxation of Chargeable Gains Act 1992 (c 12), ss 28, 222, 223
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Tax
FMX Food Merchants Import Export Co Ltd v Revenue and Customs Comrs — [2018] WLR(D) 670
REVENUE — Customs and Excise — Community Customs Code — Post-clearance demand issued outside three-year time limit — Customs Code permitting recovery of customs debt after three-year period — Whether three-year limit extended in absence of domestic provisions to that effect — Council Regulation (EEC) No 2913/92 (as amended by Council Regulation (EC) No 2700/2000), arts 221(3)(4)
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Trusts and Chancery
Griffin v Higgs — [2018] 4 WLR 139
EXECUTOR AND ADMINISTRATOR — Executor — Costs — Claim for executors to be replaced by independent administrator as conflict of interest — Executors resisting claim but taking neutral stance shortly before hearing — Claim successful and executors ordered to pay claimant’s costs up to hearing date — Executors denied indemnity from estate — Executors appealing costs order — Correct approach
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Trusts and Chancery
Gwinnutt v George — [2018] 3 WLR 1323
BANKRUPTCY — Property passing to trustee — Barrister’s fees — Barrister engaged on non-contractual terms — Barrister subsequently made bankrupt — Fees outstanding as at commencement of barrister’s bankruptcy — Whether constituting “property” and thus vesting in trustee in bankruptcy — Insolvency Act 1986 (c 45), ss 306, 435
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