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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.


Civil litigation
Tenaga Nasional Berhad v Frazer-Nash Research Ltd — [2018] WLR(D) 688
PRACTICE — Foreign judgment — Registration — Claimant obtaining judgments against defendants in Malaysian courts — Claimant obtaining permission of Malaysian Court of Appeal to enforce and execute judgments — Defendants intending to appeal against grant of permission — Such appeal requiring permission and extension of time — English High Court granting application by claimant to register judgments — Whether wrong to grant registration — Whether registration barred on grounds of pending appeal or intention and entitlement to appeal — Administration of Justice Act 1920 (10 & 11 Geo 5, c 81), s 9(1)(2)(e)
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Civil litigation
UTB llc v Sheffield United Ltd — [2018] 1 WLR 5195
INJUNCTION — Interim injunction — Preservation of property — Claimant and defendant shareholders of company — Dispute arising over shares — Defendant applying for interim injunction requiring claimant to lend money to company to preserve share value until trial — Whether court’s power to grant interim relief for preservation of “relevant property” applicable — Relevance of costs to claimant of complying with order — CPR r 25.1(1)(c)
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Civil litigation
R (Goring-on-Thames Parish Council) v South Oxfordshire District Council — [2018] 1 WLR 5161
COURT OF APPEAL (CIVIL DIVISION) — Practice — Permission to appeal — Permission to appeal refused on papers by single Lady Justice — Application to reopen — Whether oral hearing permitted — Consideration of grounds of appeal — CPR rr 52.5, 52.30
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Civil litigation
FM Capital Partners Ltd v Marino — [2018] WLR(D) 677
INJUNCTION — Freezing order — Variation — Freezing order in standard form including extended definition of assets to include assets of companies owned by the respondent — Respondent seeking variation of order to remove inclusion of companies in definition of assets on ground companies belonging to and controlled by third parties — Whether extended definition of assets applying to assets wholly owned by respondent but under control of third parties — Whether order to be varied — Admiralty and Commercial Courts Guide, 10th ed (2017), Appendix 11
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Commercial
Cultural Foundation v Beazley Furlonge Ltd — [2018] Bus LR 2174
INSURANCE — Third parties’ rights — Professional indemnity insurance — Claimants obtaining arbitration awards against insured — Insured insolvent — Whether claimants able to claim against primary or excess insurers under two consecutive policies — Whether insured having right to choose under which policy to claim — Whether primary insurer able to recover defence costs above policy costs exposure limit from insured, alternatively to raise equitable set-off — Whether third party claimant entitled to recover defence costs reimbursed to primary insurer from excess insurer — Whether third party claimant entitled to claim post-award interest from primary insurer — Third Parties (Rights Against Insurers) Act 1930 (20 & 21 Geo 5 c 25), s 1
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Commercial
Harms v Vueling Airlines SA — [2018] Bus LR 2298
AIRCRAFT — Carriage by air — Compensation and assistance to passengers — Intermediary agent collecting commission when tickets purchased — Flight cancelled — Whether price of ticket to be taken into consideration for determining reimbursement owed by air carrier to passenger including commission — Parliament and Council Regulation (EC) No 261/2004
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Commercial
CSSA Chartering and Shipping Services SA v Mitsui OSK Lines Ltd (The Pacific Voyager) — [2018] WLR(D) 683
SHIPPING — Charterparty — Construction — Parties entering into voyage charter of vessel — Charter not stipulating expected loading date but providing cancelling date and estimated loading dates on previous voyage — Damage to vessel preventing arrival at loading port by cancelling date in charterparty — Whether absolute obligation on vessel’s owner to commence approach voyage to loading port by date which made vessel's arrival by cancelling date reasonably certain
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Commercial
Recovery Partners GP Ltd v Rukhadze — [2018] WLR(D) 679
TORT — Cause of action — Breach of fiduciary duty — Individuals jointly negotiating for contract to conduct asset recovery services — Individuals subsequently falling out and some of original individuals resigning from companies formed to conduct negotiations — Contract subsequently awarded to resigning individuals — Claim against resigning individuals alleging breach of fiduciary duties by diverting business opportunity to conclude contract to themselves — Whether business opportunity — Whether individuals on resignation or breakdown of parties’ relationship ceasing to be bound by fiduciary duties
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Commercial
Astor Management AG v Atalaya Mining plc — [2018] WLR(D) 674
CONTRACT — Construction — Condition precedent — Defendants buying claimants’ interest in mine — Agreement deferring payment of consideration until senior debt facility sufficient to restart mining operations obtained by defendants — Defendants undertaking to use reasonable endeavours to obtain facility — Defendants subsequently raising funds by alternative means — Whether principle of futility enabling disapplication of precondition to payment of deferred consideration — Whether defendants required to pay deferred consideration
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Crime
R v Johnson (Matthew) — [2018] WLR(D) 691
CRIME — Indictment — Amendment — New indictment uploaded to Crown Court system — Failure to amend and to re-arraign defendant — Trial conducted on basis of amended indictment — Whether proceedings invalid — Administration of Justice (Miscellaneous Provisions) Act 1933 (c 36), s 2 (as amended by Coroners and Justice Act 2009 (c 25), s 116(1)) — Crim PR Pt 10
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Crime
R v M Najib & Sons Ltd (No 2) — [2018] 4 WLR 144
CRIME — Costs — Power to award — Costs against party to proceedings — Principles to be applied — Prosecution of Offences Act 1985 (c 23), s 19 — Costs in Criminal Cases (General) Regulations 1986 (SI 1986/1335)Director of Public Prosecutions v Denning, reg 3
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Crime
R v Alamgir (No 2) — [2018] 4 WLR 145
CRIME — Terrorism — Encouraging support for proscribed organisation — Defendant giving evidence of meetings with Security Service in which he told them he had renounced proscribed organisation — Security Service neither confirming nor denying defendant’s account of meetings and Crown not challenging defendant’s evidence — Whether judge misdirecting jury regarding defendant’s meetings with Security Service — Whether impermissible to cross-examine defendant on inconsistencies between statements to Security Service and publicly stated views
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Crime
Health and Safety Executive v ATE Truck & Trailer Sales Ltd — [2018] 4 WLR 142
HEALTH AND SAFETY — Statutory offence — Sentence — Contractor killed whilst dismantling trailer on defendant’s premises — Whether defendant having responsibility for deceased’s activities — Whether sentencing judge entitled to depart from agreed basis of plea — Management of Health and Safety at Work Regulations 1999 (SI 1999/3242), reg 3(1)(a) — Health and Safety at Work etc Act 1974 (c 37), s 33(1)(c) (as amended by Fire (Scotland) Act 2005 (Consequential Modifications and Savings) (No 2) Order (SI 2006/457), Sch 2, para 1)
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Crime
R v Shirt (Alan) — [2018] WLR(D) 689
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
Valiati v Director of Public Prosecutions — [2018] WLR(D) 676
CRIME — Evidence — Admissibility — Trial of criminal offences in magistrates’ court — Defendant submitting Preparation for Effective Trial (“PET”) form as part of case management process — Justices using statements in form to support conclusions as to defendant’s guilt — Whether improper use of information in PET form — Police and Criminal Evidence Act 1984 (c 60), s 78 (as amended by Criminal Justice Act 2003 (c 44), Sch 37(4), para 1) — Criminal Justice Act 2003 (c 44), s 118(1) — Criminal Practice Direction 2015(as amended), paras 24A.11, 24B.3, 24B.4
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Ecclesiastical
In re St Leonard’s Churchyard, Birdingbury — [2018] PTSR 1952
ECCLESIASTICAL LAW — Headstone — Faculty — Petitioner seeking confirmatory faculty to retain headstone installed without permission — Headstone failing to comply with churchyard regulations — Churchyard regulations requiring substantial reason normally to be demonstrated to permit non-compliant memorial — Whether approach appropriate and/or legitimate — Whether faculty to be granted
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Ecclesiastical
In re St Giles, Killamarsh — [2018] PTSR 1973
ECCLESIASTICAL LAW — Faculty — Repair and refurbishment — Petitioners seeking faculty for extensive proposed works — Whether information contained in public notices adequate — Whether faculty to issue — Guidance on content of petition and public notices — Faculty Jurisdiction Rules 2015 (SI 2015/1568)
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Employment
Buckinghamshire v Barnardo's — [2018] WLR(D) 684
PENSIONS — Pension scheme — Construction — Scheme allowing increases in pension payments in line with “Retail Prices Index” — Term defined as Retail Prices Index published by Government or any “replacement” adopted by scheme trustees — Employer requesting trustees to substitute Consumer Prices Index as more appropriate measure of inflation enabling reduction of scheme’s deficit — Whether trustees having power to substitute alternative index if Retail Prices Index still being published — Appropriate approach to interpretation of scheme
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Employment
Nicholls v Croydon London Borough Council — [2018] WLR(D) 675
— — — EMPLOYMENT - Transfer of underakings - Acquired rights directive)
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Employment
Ministry of Justice v O’Brien (No 2) — [2018] WLR(D) 685
DISCRIMINATION — Part-time worker — Pension — Fee-paid recorder entitled to pro rata pension of full-time circuit judge — Whether period of service prior to prohibition of discrimination in European Union and domestic law to count in calculating pension — Whether Directive having retroactive effect — Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), reg 1(2)(3) — Council Directive 97/81/EC, Annex, cl 4
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European Union
Patel (Nilay) v Secretary of State for the Home Department — [2018] 1 WLR 5245
EUROPEAN UNION — Citizenship — Right to reside — Third-country national without right of residence responsible for primary care of adult father — Both parents Union citizens and residents of host member state — Whether refusal of right of residence to third-country national son capable of depriving father of enjoyment of rights as Union citizen if Union citizen mother able to assume responsibility for father’s care — Whether third-country national satisfying requirement for grant of derivative residence card — FEU Treaty, art 20FEU
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Family
In re S (Children) (Care Proceedings: Threshold Criteria) — [2018] 4 WLR 143
CHILDREN — Care proceedings — Threshold conditions — Local authority applying for care order in second set of care proceedings in respect of child — Judge granting order — Guidance on findings in respect of threshold criteria — Children Act 1989 (c 41), s 31(2)
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Family
In re A (Children) (Withdrawal of Care Proceedings: Costs) — [2018] 4 WLR 146
CHILDREN — Care proceedings — Costs —
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Family
F v L (Child Arrangements Order: Relocation) — [2018] 4 WLR 141
CHILDREN — Orders with respect to children — Child arrangements order — Removal from jurisdiction — Mother applying to relocate to Italy with child and alleging domestic abuse by father — Father opposing application and seeking shared care order — Judge refusing relocation application and making shared care order — Whether court required to resolve shared care issue before considering relocation application — Whether court required to make findings on mother’s allegations of domestic abuse — Whether shared care arrangement in best interests of child — Whether court adequately justifing departure from Cafcass recommendation — Children Act 1989 (c 41), s 8(1) (as amended by Children and Families Act 2014 (c 6), s 12(2)(3)) — FPR Practice Direction 12J
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IP and Media
Price v MGN Ltd — [2018] WLR(D) 690
DEFAMATION — Libel — Serious harm — Claimant alleging newspaper articles published by defendant bearing particular defamatory meaning — Whether articles bearing meaning alleged by claimant — Whether defendant entitled to summary judgment on ground that articles containing other meanings so destructive of claimant’s reputation that meaning complained of unable to cause serious reputational harm — Defamation Act 2013 (c 26), s 2(3)
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IP and Media
British Broadcasting Corporation v Mechanical-Copyright Protection Society Ltd (Sky UK Ltd intervening) — [2018] WLR(D) 687
COPYRIGHT — Licence — Expiring licence — Licensees seeking extension of licences covering copyrights outside United Kingdom — Whether Copyright Tribunal having jurisdiction to set terms of licences in respect of foreign copyrights — Copyright, Designs and Patents Act 1988 (c 48) (as amended by Copyright and Related Rights Regulations 1996 (SI 1996/2967), reg 15(3)), ss 16(1), 116(3), 117, 124, 126
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Land law
Jones v Roundlistic Ltd — [2018] WLR(D) 681
FAIR TRADING — Contract — Unfair terms — Lease — Lease granted as extension to existing lease pursuant to statutory right to acquire new lease — Clause in original lease preventing underletting — Statutory provisions deeming terms of previous lease to apply — Tenants subletting property — Whether breach of underletting clause — Whether unenforceable as being unfair contract term — Whether terms “reflecting mandatory statutory or regulatory provisions” thereby excluded from application of unfair contract terms regulations — Leasehold Reform, Housing and Urban Development Act 1993 (c 28), s 56, 57 — Unfair Terms in Consumer Contracts Regulations 1999 (SI 1999/2083), regs 4(2)(a), 5(1) — Council Directive 93/13/EEC, art 1(2)
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Public law
R (K) v Secretary of State for the Home Department — [2018] WLR(D) 692
— Human trafficking — Victim — Provision of services and support to victims of trafficking — Secretary of State purporting to reduce weekly subsistence amount payable to trafficking victims to equivalent amount payable to asylum seekers — Whether purported reduction breaching terms of contract with services provider — Whether “subsistence” meaning minimum necessary to stave off destitution — Whether trafficking victims entitled to greater support and assistance than “subsistence” payable to asylum seekers — Need for Government to provide statutory guidance — Modern Slavery Act 2015 (c 30), s 49 — Council Directive 2003/9/EC, art 13(2) — Parliament and Council Directive 2011/36/EU, recital (18)
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Public law
Holohan v An Bord Pleanála (National Parks and Wildlife Service (NPWS) intervening) — [2018] WLR(D) 686
ENVIRONMENT — Natural habitats — Conservation of wild fauna and flora — Road construction project — Appropriate assessment of effects on environment — Extent of obligation to state reasons — Assessment of implications of projects — Council Directive 92/43/EEC, art 6(3) — Parliament and Council Directive 2011/92/EU, art 5(1), (3)(d), Annex IV, Point 3
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Public law
R (MA (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) — [2018] 1 WLR 5273
IMMIGRATION — Deportation order — Challenge — Claim of breach of Convention right to respect for private and family 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 (as inserted by Immigration Act 2014 (c 22), s 19)
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Public law
R (National Council for Civil Liberties) v Secretary of State for the Home Department — [2018] 3 WLR 1435
DATA PROTECTION — Personal data — Access to — United Kingdom legislation not restricting retention of data according for crime fighting objective to serious crime only — Access to data not subject to prior review — Claimant challenging validity of legislation on retention of and access to communications data — Whether court to grant order disapplying domestic legislation — Whether declaratory relief sufficient — Investigatory Powers Act 2016 (c 25), Pt 4
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Public law
R (Elan-Cane) v Secretary of State for the Home Department (Human Rights Watch intervening) — [2018] 1 WLR 5119
HUMAN RIGHTS — Respect for private life — Freedom from discrimination — Government policy for passport applicant to state choice of male or female gender with no gender-neutral option — Whether infringing non-gender claimant’s right to respect for private life — Whether concept of “private life” encompassing self-identified gender — Whether positive obligation on state to allow gender-neutral option — Whether unlawful discrimination in enjoyment of Convention right — Extent of state’s margin of appreciation — Whether policy irrational — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14
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Public law
Powys County Council v Hurst — [2018] PTSR 1940
Local Government — Council tax — Enforcement — Committal order made against defendant for non-payment of council tax specified in liability orders — Committal order discharged for failure to exhaust alternatives to custody — Whether attachment of earnings order available in respect of defendant’s pension to recover unpaid council tax — Whether pension “earnings” — Whether district judge wrong to discharge committal order — Attachment of Earnings Act 1971 (c 32) (as amended by Magistrates’ Courts Act 1980 (c 43), s 154, Sch 7, para 101(b) and Crime and Courts Act 2013 (c 22), Sch 9(2), para 25(2)), ss 1(2)(b), 2(c), 25(6)) — Magistrates’ Courts Act 1980 (c 43), Pt III — Council Tax (Administration and Enforcement) Regulations 1992 (SI 1992/613), regs 32(1), 35(3)
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Public law
JP v Bournemouth Borough Council — [2018] PTSR 1919
SOCIAL SECURITY — Housing benefit — Entitlement — Claimant receiving housing benefit — Claimant’s relation residing at claimant’s address and alternate address — Whether claimant subject to housing benefit reduction — Whether “non-dependant” adult “normally resides with” claimant based on duration of visits to claimant’s property — Whether non-dependant’s “normal home is elsewhere” — Housing Benefit Regulations 2006 (SI 2006/213), regs 3(1), 7(1)(2), 74(7)(a)
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Tax
Trigg v Revenue and Customs Comrs — [2018] 1 WLR 5180
REVENUE — Capital gains tax — Exemptions — Disposal of qualifying corporate bonds — Sterling-denominated bonds providing for redenomination in euros in event that United Kingdom’s currency changing to euros — Whether bonds making “provision … for conversion into, or redemption in, a currency other than sterling” — Taxation of Chargeable Gains Act 1992 (c 12), s 117(1)(b)
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Tax
R (Hammonds of Knutsford plc) v Revenue and Customs Comrs — [2018] 1 WLR 5225
REVENUE — Customs and Excise — Duty chargeable — Repayment of excise duty — Taxpayer filing notice of intention to drawback excise duty — Goods leaving storage before end of period required by inspection facility rule — Customs refusing drawback claim on grounds inspection facility rule not complied with — Whether decision lawful — Excise Goods (Drawback) Regulations 1995 (SI 1995/1046), reg 8(2)(d) — Council Directive 92/12/EEC, art 22 — Council Directive 2008/118/EC, arts 9, 33
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Tax
R (Archer) v Revenue and Customs Comrs — [2018] 1 WLR 5210
REVENUE — Income tax — Assessment — Revenue issuing closure notices following enquiry into taxpayer's self-assessment tax return — Notices notifying taxpayer of revenue's conclusions but not stating amount of tax due — Taxpayer contending notices ineffectual in judicial review proceedings — Whether closure notices ineffective — Whether defects in closure notices curable — Taxes Management Act 1970 (c 9) (as amended by Finance Act 1989 (c 26), s 160(5), Finance Act 1998 (c 36), s117(3), Sch 19, para 29(1), Finance Act 2001 (c 9), s 88(1), Sch 29, paras 8(1), 14(3)), ss 28A, 59B(5), 114(1)
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Tort
H v Medway NHS Foundation Trust — [2018] WLR(D) 682
MEDICAL PRACTITIONER — Negligence — Liability — Claimant’s daughter suffering from cerebral palsy as a result of medical negligence during birth at defendant’s hospital — Defendant admitting liability to daughter — Whether claimant also having claim for psychiatric injuries — Whether claimant primary or secondary victim — Whether required to establish injury caused by “shock” — Congenital Disabilities (Civil Liability) Act 1976 (c 28), s 1 (as amended by Human Fertilisation and Embryology Act 2008 (c 22), Sch 6(1), para 14)
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Trusts and Chancery
Azuonye v Kent — [2018] WLR(D) 678
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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Trusts and Chancery
Children’s Investment Foundation Fund (UK) v Attorney General — [2018] 3 WLR 1470
CHARITY — Charitable company — Jurisdiction of High Court — Extent of court’s jurisdiction over members of charitable company — Payment of grant to new charity requiring prior written approval of Charity Commission and approval of company’s members — Whether members owing fiduciary duty to company — Conflict of interest depriving some members of right to vote — Whether court having jurisdiction to direct non-conflicted member how to vote — Whether grant to be approved — Companies Act 2006 (c 46), s 217 — Charities Act 2011 (c 25), s 201
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Trusts and Chancery
In re Noble Group Ltd — [2018] WLR(D) 680
COMPANY — Scheme of arrangement — Convening hearing — Proper approach to issues arising in international cases relating to court’s jurisdiction — Companies Act 2006 (c 46), s 896(1)
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R (KO (Nigeria)) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) —

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