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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
EuroEco Fuels (Poland) Ltd v Szczecin and Swinoujscie Seaports Authority — [2018] 4 WLR 133
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Libel action — Defendants commencing nuisance proceedings against claimants in Poland — Claimants subsequently commencing libel proceedings against defendants in England in relation to statements made in to Polish media — Whether English court having jurisdiction to determine libel claim — Whether court to exercise discretionary power to decline jurisdiction — Parliament and Council Regulation (EU) No 1215/2012, arts 7(2), 30(1(2)
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Civil litigation
Lisle-Mainwaring v Associated Newspapers Ltd — [2018] 1 WLR 4766
PRACTICE — Appeal — Permission to appeal — Application to trial judge for permission to appeal after conclusion of hearing at which decision to be appealed made — Judge granting permission to appeal — Whether permission to appeal validly granted — CPR r 52.3(2)(a), Practice Direction 52A, para 4.1
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Commercial
SCM Financial Overseas Ltd v Raga Establishment Ltd — [2018] Bus LR 1391
ARBITRATION — Award — Serious irregularity — Duty of fairness — Party requesting deferral of award until further evidence available — Whether tribunal acting unfairly in refusing deferral — Arbitration Act 1996 (c 23), ss 33, 68
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Commercial
BritNed Development Ltd v ABB AB — [2018] WLR(D) 514
COMPETITION — Restriction or distortion of competition — Anti-competitive agreement — European Commission finding supplier of cable participated in cartel — Customer bringing claim for breach of statutory duty against supplier to recover alleged resulting overcharge and loss of profits — Test for establishing actionable harm — How loss to be quantified — Test for establishing lost profit claim — FEU Treaty, art 101FEU — Parliament and Council Directive 2014/104/EU, art 17(2)
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Commercial
Sea Master Shipping Inc v Arab Bank (Switzerland) Ltd (The Sea Master) — [2018] Bus LR 1798
SHIPPING — Bill of lading — Arbitration clause — Trade finance bank holding bill of lading for security interest — Bank subsequently divesting itself of rights under bill — Shipowner bringing arbitration proceedings under bill against bank — Whether bank acquiring rights of suit by virtue of holding bill of lading also assuming obligation to be bound by arbitration agreement — Whether bank divesting itself of rights under bill effective to divest it of obligations under arbitration agreement — Carriage of Goods by Sea Act 1992 (c 50), ss 2(1), 3 — Arbitration Act 1996 (c 23), s 67
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Commercial
Wilton UK Ltd v Shuttleworth (No 2) — [2018] 1 WLR 4677
COMPANY — Shareholder — Derivative claim — Claimant serving claim form without obtaining prior court’s permission — Whether permission to continue claim to be given — Factors to be considered — Proper approach where permission sought retrospectively — Companies Act 2006 (c 46), ss 172, 261, 263
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Crime
National Crime Agency v Hajiyeva — [2018] WLR(D) 520
CRIME — Proceeds of crime — Unexplained wealth order — Enforcing authority obtaining unexplained wealth order against respondent in respect of property — Whether order should be discharged — Whether respondent “politically exposed person” as family member of individual entrusted with prominent public functions “by an international organisation or by a state” — Whether family member member of administrative, management or supervisory body of “state-owned enterprise” — Whether order infringing right to peaceful enjoyment of possessions — — Civil Evidence Act 1968 (c 64), s 14(1) — Human Rights Act 1998 (c 42), art 1 — Proceeds of Crime Act 2002 (c 29), ss 362A, 362B, 362C (as inserted by Criminal Finances Act 2017 (c 22), s 1) — Parliament and Council Directive 2015/849/EU, art 39(9)
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Crime
R v Ali (Subhaan) — [2018] 4 WLR 131
CRIME — Sentence — Plea of guilty — Defendant charged with murder and manslaughter — Defendant offering to plead guilty to manslaughter if such plea acceptable to Crown — Crown refusing to accept such plea — Defendant pleading not guilty — Defendant acquitted of murder but convicted of manslaughter — Whether sentencing judge to give defendant credit for conditional plea
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Crime
R v Mundy (Ian) — [2018] 4 WLR 130
CRIME — Sentence — Confiscation order — Crown applying 8½ years after making of confiscation order for recalculation of amount available to defendant — Judge refusing application — Guidance as to exercise of judicial discretion to recalculate available amount — Proper approach on appeal against judge’s refusal to recalculate available amount — Proceeds of Crime Act 2002 (c 29), ss 22(4), 31(2)
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Crime
R v Gale (Colin) — [2018] 4 WLR 132
CRIME — Sentence — Manslaughter — Manslaughter by reason of loss of control — Guidance when sentencing
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Crime
Ulaszonek v Regional Court in Bialystok, Poland — [2018] WLR(D) 510
EXTRADITION — European arrest warrant — Appeal — District judge making extradition order based on European arrest warrant issued by requesting judicial authority — Requested person appealing — Judicial authority purporting to amend warrant to remove reference to certain convictions no longer relied on — Whether possible to amend European arrest warrant — Whether court having power to allow appeal only in relation to offences no longer relied on while leaving extradition order in place in respect of remaining offences — Extradition Act 2003 (c 41), s 27 — Extradition Act (Multiple Offences) Order 2003 (SI 2003/3150), Sch 1, art 1
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AC, R (On the Application Of) v The Director of Public Prosecutions — [2018] WLR(D) 604
CRIME — Practice — Prosecution of offences — Claimant’s husband charged with abduction of claimant’s children — Crown Prosecution Service deciding not to charge second person suspected of offence — Claimant requesting review of decision under victims’ right to review scheme — Crown Prosecution Service confirming following ad hoc review decision not to charge — Claimant seeking judicial review — Whether victims of crime having entitlement to review of any decision not to prosecute — Parliament and Council Directive 2012/29/EU — Crown Prosecution Service’s Victims’ Right to Review Guidance
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Crime
R v W (G) — [2018] 4 WLR 129
EXTRADITION — Restriction on return — Specialty — Defendant extradited from Sweden on charge of conspiracy to corrupt — Offence subject to limitation period of ten years in Sweden — Defendant standing trial on charge in United Kingdom — Whether rule of specialty precluding evidence being adduced dating back more than ten years before extradition — Whether particulars of offence to be confined to period for which defendant could have been tried in Sweden — Extradition Act 2003 (c 41), s 146(3)(a)
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Employment
Agarwal v Cardiff University — [2018] WLR(D) 513
EMPLOYMENT — Wages — Deduction — Claim that employer making unauthorised deductions from wages — Whether employment tribunal having jurisdiction to construe contract of employment — Employment Rights Act 1996 (c 18), s 13
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Employment
Bellman v Northampton Recruitment Ltd — [2018] WLR(D) 519
VICARIOUS LIABILITY — Employment — Course of employment — Managing director of small company assaulting employee at early hours drinking session after company Christmas party — Whether acting in course of employment — Whether sufficient connection between director’s position and assault — Whether company vicariously liable for assault
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European Union
Pisciotti v Federal Republic of Germany — [2018] 3 WLR 1082
EXTRADITION — Scope of European Union law — Treaty rights — Third state requesting extradition of national of member state other than requested state — Requested state’s nationals protected against extradition but not nationals of other member states — Whether requested person, Union citizen, arrested in member state other than that of which he was national, falling within scope of EU law — Whether requested member state precluded from drawing distinction between its nationals and nationals of other member states and from granting extradition of latter whilst not permitting extradition of its own nationals — FEU Treaty, arts 18FEU, 21FEU — Agreement on Extradition Between the European Union and the United States of America 2003
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European Union
FV (Italy) v Secretary of State for the Home Department — [2018] 3 WLR 1035
EUROPEAN UNION — Freedom of movement — Right to reside — Enhanced protection against expulsion for Union citizens residing in host member state for ten years — Union citizen applicants residing in host member states for over ten years — First, but not second, applicant having right of permanent residence in host state — Applicants sentenced to periods of imprisonment in host states — Host states deciding to expel applicants — Whether second applicant required to have right of permanent residence in host state in order to be eligible for enhanced protection — First applicant living in host state for 20 years before receiving custodial sentence which still serving at time expulsion decision made — Whether requirement of residence in host state for previous ten years satisfied by first applicant — Point at which compliance with residence condition assessed — Parliament and Council Directive 2004/38/EC, arts 16(1), 28(3)(a)
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European Union
Hassan v Préfet du Pas-de-Calais — [2018] 1 WLR 4711
EUROPEAN UNION — Immigration — Asylum — Third-country national applicant arrested in member state — Applicant previously applying for international protection in another member state — Take back request — Whether member state making take back request precluded from adopting transfer decision before requested member state agreeing to request — Parliament and Council Regulation (EU) No 604/2013, arts 18, 26
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Family
IQ v JP — [2018] WLR(D) 516
CONFLICT OF LAWS — Jurisdiction under Council Regulation — Orders with respect to children — Children living with mother in United Kingdom — Father residing in Romania — Mother applying to Romanian court for custody and ancillary relief — Romanian court giving decision on parental responsibility — Mother then applying to United Kingdom court for restraining order and subsequently for determination of custody — Whether United Kingdom court “better placed” to determine case — Council Regulation (EC) No 2201/2003, art 15(1)
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Family
In re KBH (Forced Marriage Protection Order: Non-resident British Citizen) — [2018] WLR(D) 605
JURISDICTION — British citizens — Forced marriage protection orders — Vulnerable British citizens living in Somalia — Older sister living in England concerned about forced marriage in Somalia — Solicitor instituting proceedings for protection orders — Whether proceedings properly instituted
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Family
Public Guardian v DA — [2018] WLR(D) 608
Mental disorder — Lasting powers of attorney — Validity — Validity of words used in lasting powers of attorney — Whether words directing attorney to bring about donor’s death effective — Whether appointment of multiple attorneys in LPAs valid — Mental Capacity Act 2005 (c 9), ss 9(2)(a)(3), 10, 11(7)(c)(8), 23, Sch 1, para 11
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IP and Media
Coöperatieve Vereniging SNB-REACT UA v Mehta — [2018] Bus LR 1825
Trade mark — Infringement — Injunction — Defendant providing IP address rental and registration service allowing anonymous use of internet domain names — Estonian collecting body representing trade mark proprietors bringing claim against defendant — Whether member states having to recognise such a body as having standing to seek remedies in its own name — Whether limitations of liability for mere conduit, caching or hosting applying to defendant — Parliament and Council Directive 2004/48/EC, art 4 — Parliament and Council Directive 2000/31/EC, arts 12, 13, 14
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IP and Media
Land Nordrhein-Westfalen v Renckhoff — [2018] Bus LR 1815
COPYRIGHT — Communication to public — Rights — Professional photograph posted on online travel portal — Photograph downloaded and included in school project posted on school’s website — Whether photograph protected by copyright — Whether relevant that photograph already accessible to public without restriction on internet — Whether communication to “new” public — Parliament and Council Directive 2001/29/EC, art 3(1)
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Land law
TW Logistics Ltd v Essex County Council — [2018] WLR(D) 509
COMMONS — Town or village green — Registration — Land forming part of port registered as town or village green — Port owner seeking to have land de-registered — Whether recreational uses of land incompatible with commercial activity — Whether owner’s exposure to criminal sanctions for continued use of land for commercial purposes inconsistent with its registration as town or village green — Whether owner’s health and safety obligations inconsistent with registration — Whether land to be de-registered — Inclosure Act 1857 (20 & 21 Vict c 31), s 12 — Commons Act 1876 (39 & 40 Vict c 56), s 29 — Commons Registration Act 1965 (c 64), s 14 — Commons Act 2006 (c 26), s 15(1)(3)
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Land law
Trustees of Sloane Stanley Estate v Mundy — [2018] 1 WLR 4751
LANDLORD AND TENANT — Lease — Tenant’s right to acquire new lease — Premium payable by tenant on grant of new lease — Models for valuing existing lease on statutory assumption that no rights to acquire new lease existing — Whether particular model appropriate method for determining leasehold relativity — Whether within Upper Tribunal’s functions to rule out future use of particular model — Extent of statutory valuation assumptions — Leasehold Reform, Housing and Urban Development Act 1993 (c 28), Sch 13, para 4A(1)(b) (as inserted by Housing Act 1996 (c 52), ss 110(4)(5), 232(1))
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Land law
Triplark Ltd v Reiner — [2018] WLR(D) 603
LANDLORD AND TENANT — Covenant — Possession, not to part with — Tenant covenanting not to part possession with property without consent of landlord — Tenant informing RTM company that selling lease — RTM company failing to give notice to landlord — Property sale completed but transfer not registered — Whether tenant parting with possession — Whether RTM company unreasonably withholding consent to assignment — Landlord and Tenant Act 1988 (c 26), s 1(3) — Commonhold and Leasehold Reform Act 2002 (c 15), s 98(4)
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Public law
Ahmedbekova v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite — [2018] WLR(D) 515
EUROPEAN UNION — Immigration — Asylum — Standards for qualification of third-country nationals or stateless persons for international protection — Applications for international protection lodged separately by family members — Whether account to be taken of threats to family member when carrying out individual assessment of application for protection of another family member — Assessment of reasons for persecution — Whether relevant that applicant bringing complaint against country of origin before European Court of Human Rights — Parliament and Council Directive 2011/95/EU, arts 3, 4, 10, 23 — Parliament and Council Directive 2013/32/EU, art 46
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Public law
Darnley v Croydon Health Services NHS Trust — [2018] WLR(D) 511
NEGLIGENCE — Duty of care — Hospital receptionist — Claimant presenting at accident and emergency department of defendant trust’s hospital with suspected head injury — Receptionist giving incorrect information as to likely waiting times — Claimant deciding to leave rather than wait to be seen within time frame indicated by receptionist — Claimant’s condition subsequently deteriorating — Claimant suffering hemiplegia which would not have resulted had he remained at hospital — Whether defendant or receptionist under duty to provide patients with accurate information as to waiting time — Whether defendant liable for claimant’s injury
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Public law
R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government — [2018] WLR(D) 607
JUDICIAL REVIEW — Public authority — Legitimate expectation — Planning permission and listed building consent sought for development beside major railway station — Statutory power for Secretary of State to give directions requiring applications for planning permission to be referred to him rather than being dealt with by local planning authority — Minister making policy statement in Parliament stating reasons to be given for both calling in and not calling in applications for planning permission — No statement in Parliament when policy in relation to decisions not to call in planning applications changed — Whether general duty under statutory power to give reasons — Whether legitimate expectation that reasons would be provided based on ministerial statement unless public announcement of change of policy — Town and Country Planning Act 1990, s 77(1)
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Public law
Summers v Richmond upon Thames London Borough Council — [2018] 1 WLR 4729
Local Government — Powers — Public spaces protection order — Local authority enacting public spaces protection order to control dog-walking — Public spaces protection order imposing penalties for walking more than four dogs and failing to keep dogs under control — Applicant challenging public spaces protection order by way of statutory review — Whether statutory criteria for making public spaces protection order satisfied — Whether order lawfully made — Whether High Court having jurisdiction to determine challenge to public spaces protection order on grounds of discrimination — Equality Act 2010 (c 15), ss 29, 113, 114, 149 — Anti-social Behaviour, Crime and Policing Act 2014 (c 12) ss 59, 66
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Tax
London Clubs Management Ltd v Revenue and Customs Comrs — [2018] WLR(D) 512
REVENUE — Customs and Excise — Gaming duty — Player placing bet using free voucher or non-negotiable chip — Whether player staking “value, in money or money’s worth” with casino — Betting and Gaming Duties Act 1981 (c 63), s 20 — Finance Act 1997 (c 16), s 11(10)(a)(b)
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Tort
Sophocleous v Secretary of State for Foreign and Commonwealth Affairs — [2018] WLR(D) 518
CONFLICT OF LAWS — Tort — Limitation — Allegations of tort relating to events in Cyprus in 1950s — Rule of double applicability at common law — Exception potentially available such that issue governed by law of country having “most significant relationship with the occurrence and the parties” — Whether action arising in Cyprus — Whether rule of double applicability applying in principle — Whether exception applying
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Komisia za zashtita na potrebitelite v Kamenova — [2018] WLR(D) 517
FAIR TRADING — Consumer protection — Unfair commercial practices — Defendant selling items on website — Consumer complaint that supplied goods not matching description — Defendant refusing to exchange or make refund — Whether natural person simultaneously publishing on website number of advertisements offering new and second-hand goods for sale automatically classified as “trader” — Whether “commercial practice” — Parliament and Council Directive 2005/29/EC, art 2(b) (d) — Parliament and Council Directive 2011/83/EU, art 2(2)
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P v Q — [2017] WLR(D) 238
ARBITRATION — Arbitrator — Removal — Arbitrators allegedly improperly delegating functions to tribunal secretary — Party to proceedings seeking arbitrators’ removal — Whether defendants failing properly to conduct proceedings — Guidance as to delegation of functions to tribunal secretary — Arbitration Act 1996 (c 23), s 24(1)(d)
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Palmer Birch (A Partnership) v Lloyd — [2018] WLR(D) 606
TORT — Cause of action — Conspiracy to injure by unlawful means — Whether defence of justification available
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