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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
RG Carter Building Ltd v Kier Business Services Ltd — [2018] 1 WLR 4598
LIMITATION OF ACTION — Contribution — Accrual of cause of action — Claimant bringing action against defendant for contribution to cost of settlement reached in respect of arbitration proceedings relating to building project — Whether action statute-barred — Whether cause of action accruing at date of execution of settlement agreement or earlier date — Liability (Contribution) Act 1978 (c 47), s 1 — Limitation Act 1980 (c 58), s 10(1)(3)(4)
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Civil litigation
E v Franks — [2018] 1 WLR 4647
LIMITATION OF ACTION — Personal injuries — Time limit, power to override — Defendant applying to set aside judgment in default — Whether default judgment to be set aside where defendant having prima facie limitation defence — Whether possible exclusion of limitation period in discretion of court to be considered on application to set aside default judgment — Limitation Act 1980 (c 58) (as amended by Consumer Protection Act 1987 (c 43), ss 6(6), 50(2), Sch 1, para 6(a) and Protection from Harassment Act 1997 (c 40), s 6), ss 11, 33(1) — CPR r 13.3
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Commercial
Connect Shipping Inc v Sveriges Angfartygs Assurans Förening (The Renos) — [2018] Bus LR 1797

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Commercial
flightright GmbH v Air Nostrum, Líneas Aéreas del Mediterráneo SA — [2018] 3 WLR 989
CONFLICT OF LAWS — Jurisdiction under European Union Regulation — Special jurisdiction — Matters relating to contract — Contract of carriage by air — Connecting flights operated by different carriers — Delay occurring on first leg operated by carrier with which passengers having no contractual relations — Whether claim matter “relating to a contract” — Whether “place of performance” of connecting flight being place of arrival of second leg — Council Regulation (EC) No 44/2001, art 5(1) — Parliament and Council Regulation (EC)No 261/2004 — Parliament and Council Regulation (EU) No 1215/2012, art 7(1)
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Commercial
In re Victory House General Partner Ltd — [2018] 3 WLR 1024
INSOLVENCY — Winding up — Petition — Petitioner seeking winding up of company on basis of judgment debt — Company having cross-claim in excess of debt — Whether cross-claim making it inappropriate to wind up company — Whether special circumstances justifying departure from general rule
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Commercial
Orascom TMT Investments SARL v VEON Ltd (Practice Note) — [2018] Bus LR 1787
ARBITRATION — Practice — Challenge to award — Guidance on proper procedure for challenging arbitral awards for serious irregularity — Arbitration Act 1996 (c 23), s 68
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Costs
Culliford v Thorpe — [2018] WLR(D) 600
COSTS — Discretion of court — Interim payment — Successful defendant applying for interim payment on account of costs — Application made after costs order made, drawn up and sealed — Whether order to be made — CPR r 44.2(8)
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Crime
R v Barratt (Aaron) — [2018] 4 WLR 127
CRIME — Prison mutiny — Elements of offence — Requirement of synchronicity between mutiny and failure to submit to lawful authority — Prison officer’s order preceding mutiny — Relevance of prison officer’s order to offence — Whether essential that order subsequent to start of mutiny — Prison Security Act 1992 (c 25), s 1(4)
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Crime
R v Sokolowski (Piotr) — [2018] 4 WLR 126
CRIME — Sexual offence — Prevention orders — Guidance as to making of sexual harm prevention orders — Requirement for prosecution to serve written draft of proposed order on defendant — Requirement that order be necessary and proportionate — Prohibitions on contact with children — Relationship between order and statutory notification requirements — Orders made for indefinite period — Right of appeal — Sexual Offences Act 2003 (c 42) (as amended by Anti-social Behaviour, Crime and Policing Act 2014 (c 12), s 113, Sch 5, para 2), ss 103A, 103H
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Crime
Proceedings concerning Tupikas — [2017] WLR(D) 575
EXTRADITION — European arrest warrant — Validity — Arrest warrant issued in order to execute custodial sentence — Defendant appearing at original sentence hearing in issuing state — Warrant not disclosing whether defendant having appeared at unsuccessful appeal hearing — Whether appeal proceedings constituting “trial resulting in the decision” — Council Framework Decision 2002/584/JHA, art 4a(1) (as inserted by Council Framework Decision 2009/299/JHA, art 2)
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Crime
R (L) v Serious Fraud Office — [2018] 1 WLR 4557
JUDICIAL REVIEW — Alternative remedy — Whether judicial review appropriate — Claimant indicted for bribery seeking disclosure from prosecution of records of interviews given to former employer’s lawyers — Lawyers refusing to disclose documents to prosecution on grounds of privilege — Prosecution choosing not to compel disclosure — Whether High Court to exercise supervisory jurisdiction — Whether Crown Court appropriate forum for disclosure disputes — Criminal Procedure (Attendance of Witnesses) Act 1965 (c 69), s 2(1)(2) (as amended by Criminal Procedure and Investigations Act 1996 (c 25), s 66(1)(2) and Serious Organised Crime and Police Act 2005 (c 15), s 169(1)) — Criminal Procedure and Investigations Act 1996 — Crime and Courts Act 2013 (c 22), Sch 17
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Ecclesiastical
In re Hither Green Cemetery — [2018] WLR(D) 599
ECCLESIASTICAL LAW — Faculty — Exhumation — Child dying in tragic circumstances — Petitioner unaware interment had taken place in consecrated ground — Petitioner later regretting decision taken and seeking faculty for disinterment with view to cremation — Petitioner suffering sleeplessness and stress as result of current arrangements — Whether exceptional circumstances justifying exhumation — Whether faculty to be granted — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 9
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Employment
Evans v Chief Constable of the South Wales Police — [2018] WLR(D) 597
POLICE — Pension — Injury pension — Police officers retiring due to injuries suffered during execution of their duties — Officers receiving police injury pension and social security benefits — Chief constable deducting full amount of social security benefits increased by annual uprating order from injury pension — Whether full sums of increased additional social security benefits deductible from injury pension or such deductions frozen at levels applying when retired — Police (Injury Benefit) Pensions Regulations 2006 (SI 2006/932), para 7(1)(2), Sch 3
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European Union
A v Migrationsverket — [2018] 1 WLR 4668
EUROPEAN UNION — Immigration — Asylum — Safe country of origin — Application for asylum in member state — Application rejected as manifestly unfounded on ground that applicant’s country of origin able to offer effective protection according to information provided by applicant himself — No legislative or regulatory provisions adopted by member state to designate safe countries of origin in accordance with procedure laid down by European Union law — Whether provisions of European Union law in such circumstances permitting member state to reject application as manifestly unfounded for insufficiency of applicant’s representations — Parliament and Council Directive 2013/32/EU, arts 31(8)(b), 32(2), 36, 37
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European Union
R (Lauzikas) v Secretary of State for the Home Department — [2018] 1 WLR 4623
IMMIGRATION — Home Secretary serving notice of restrictions prohibiting EU citizen from working in UK pending deportation — Whether lawful under EU and domestic law —
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European Union
Proceedings brought by Ministerio Fiscal — [2018] WLR(D) 595
DATA PROTECTION — Personal data — Access to — Data processed in connection with provision of electronic communications services — Access of national authorities to data for purposes of criminal investigation — Data required to identify owners of SIM cards activated with stolen mobile telephone — Judicial authority refusing police access to personal data retained by services providers on ground that crime not serious enough — Whether access to data entailing interference with SIM card owners’ fundamental rights — Whether interference sufficiently serious to entail access being limited to objective of fighting serious crime — Charter of Fundamental Rights of the European Union, arts 7, 8 — Parliament and Council Directive 2002/58/EC (as amended by Parliament and Council Directive 2009/136/EC), art 15(1)
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European Union
Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH — [2018] Bus LR 1777
FAIR TRADING — Consumer protection — Business premises — Stand run by trader at trade fair — Whether “business premises” — Whether “off-premises contract” — Whether consumer entitled to right of withdrawal — Parliament and Council Directive 2011/83/EU, arts 2(9), 9
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Family
H v Z (Interim Maintenance: Pound for Pound Costs Funding Order) — [2018] WLR(D) 598
MARRIAGE — Divorce — Financial provision — Husband accruing arrears after persistently failing to comply with maintenance pending suit and legal costs funding orders — Wife’s application for “pound for pound” order debarring husband from taking further part in proceedings unless he paid more to wife’s solicitors than to his solicitors pending discharge of arrears — Whether jurisdiction to make “pound for pound” order on such terms — Whether and on what terms order to be made
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Family
Birmingham City Council v D — [2018] PTSR 1791
CHILDREN — Accommodation — Deprivation of liberty — Incapacitated 16-year-old accommodated by local authority with parents’ consent in circumstances amounting to objective confinement — Whether parents of child aged 16 or 17 able to consent to his confinement — Whether such consent within ambit of parental responsibility for child aged 16 or 17 — Whether child’s confinement imputable to state — Whether deprivation of liberty for which court’s authorisation required — Children Act 1989 (c 41), ss 3, 20 — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5 — Mental Capacity Act 2005 (c 9)
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Family
In re B-P (Children) (Adoption or Fostering) — [2018] WLR(D) 593
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
Pathan v Secretary of State for the Home Department — [2018] WLR(D) 601
IMMIGRATION — Leave to remain — Points based system — Applications for leave as tier 2 general migrants sponsored by employer — Sponsors’ certificates of sponsorship valid at date of application but revoked before applications processed — Home Secretary aware of revocation but applicants not informed — Whether as matter of procedural or substantive fairness applicants entitled to notice of revocation and reasonable time to rearrange affairs
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Public law
R (CP) v North East Lincolnshire Council — [2018] PTSR 1759
Local Government — Community care services — Persons in need of “care and support” — Claimant seeking judicial review challenging lawfulness of care plan provided by local authority — Challenge alleging unlawful refusal to make education and health care plan providing for special education placement — Issue of special education provision also subject of appeal to First-tier Tribunal — Whether local authority obliged to address social care aspects of special education provision where appeal to tribunal outstanding — Whether any breach of Convention right to education — Human Rights Act 1998 (c 42), Sch 1, Pt II, art 2 — Children and Families Act 2014 (c 6), ss 21(5), 37(1), 51 — Care Act 2014 (c 23), ss 9, 24, 25
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Public law
R (DA) v Secretary of State for Work and Pensions — [2018] PTSR 1606
SOCIAL SECURITY — Welfare benefits — Benefit cap — Secretary of State introducing benefit cap — Whether regulations implementing benefit cap unlawfully discriminating against lone parents with children under age of two — Whether regulations incompatible with Convention rights — Whether discrimination justified — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14, Pt II, art 1 — Welfare Reform Act 2012 (c 5), s 96 (as amended by Welfare Reform and Work Act 2016 (c 7), s 8(2)) — Housing Benefit Regulations 2006 (SI 2006/213), Pt 8A (as inserted by Benefit Cap (Housing Benefit) Regulations 2012 (SI 2012/2994), reg 2 and amended by Benefit Cap (Housing Benefit and Universal Credit) (Amendment) Regulations 2016 (SI 2016/909), reg 2) — United Nations Convention on the Rights of the Child (1989) (Cm 1976), art 3.1
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Public law
R (Zahid) v University of Manchester — [2018] PTSR 1728
EDUCATION — University — Student complaints scheme — Claimants making reference to Office of the Independent Adjudicator for Higher Education (“OIA”) — Claimants also issuing judicial review proceedings — OIA proscribed from considering complaint when court proceedings in relation to same subject matter not stayed — Whether court to grant stay to allow reference to be determined by OIA — Relevant factors to be considered
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Public law
R (Kebbell Developments Ltd) v Leeds City Council — [2018] 1 WLR 4625
PLANNING — Development — Neighbourhood development plan — Draft plan referring to parish council’s policy of returning site to Green Belt — Examiner considering policy not to be in conformity with strategic policies in development plan and recommending its deletion — Local planning authority accepting recommendation but inserting summary of deleted text — Whether planning authority acting outside its powers in departing from examiner’s recommendation — Whether under common law duty to consult on modifications — Whether plan unlawfully put to referendum — Town and Country Planning Act 1990 (c 8) (as amended by Localism Act 2011 (c 20), s 116(2), Sch 10), Sch 4B, paras 12(6)(a), 13(1)
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Public law
Hertfordshire County Council v Davies — [2018] 1 WLR 4609
Local Government — Powers — Children — School caretaker occupying bungalow on school site with wife and children — Local authority terminating caretaker’s employment and seeking possession — Judge finding local authority in breach of statutory duty to safeguard and promote welfare of children by failing to consider effect of eviction on caretaker’s children — Whether breach of such duty providing defence to possession claim where no private law right to possession — Children Act 2004 (c 31), s 11(2)
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Public law
Pham v Secretary of State for the Home Department — [2018] WLR(D) 594
NATIONALITY — British citizenship — Deprivation of citizenship — Claimant Vietnamese national obtaining British citizenship — Security services alleging involvement in terrorist training — Home Secretary making order depriving him of British citizenship — Claimant appealing to Special Immigration Appeal Committee against deprivation order — Claimant subsequently extradited and sentenced for terrorism offences to 40 years’ imprisonment in United States — Secretary of State seeking striking out of Special Immigration Appeal Committee appeal — Whether deprivation order “conducive to public good” — Whether deprivation of status as British citizen permissible on grounds of repudiation of obligation of loyalty to state — Whether posing of current risk to national security required — Whether striking out requirement of “no reasonable grounds” for bringing appeal restricted to recognisable point of law and excluding consideration of evidence — British Nationality Act 1981 (c 61) (as substituted by Immigration, Asylum and Nationality Act 2006 (c 13), ss 56(1), 62), s 40(2) — Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034) (as amended by the Special Immigration Appeals Commission (Procedure) (Amendment) Rules (SI 2007/1285), r 11 and Special Immigration Appeals Commission (Procedure) (Ammendment) Rules 2013 (SI 2013/2995), r 23), r 11B
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Public law
R (Khan) v Secretary of State for the Home Department — [2017] WLR(D) 394
JUDICIAL REVIEW — Alternative remedy — Whether judicial review appropriate — Claimant seeking judicial review of Secretary of State’s decision to refuse to extend leave to remain — Upper Tribunal declining to determine claim on grounds of alternative remedy of appeal to First-tier Tribunal — Whether exceptional circumstances making judicial review appropriate — Immigration Act 1971 (c 77), s 3C(1)(2) (as substituted by Nationality, Immigration and Asylum Act 2002 (c 41), Pt 6, s 118)
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Public law
R (Khan) v Secretary of State for the Home Department — [2017] 4 WLR 156
JUDICIAL REVIEW — Alternative remedy — Whether judicial review appropriate — Claimant seeking judicial review of Secretary of State’s decision to refuse to extend leave to remain — Upper Tribunal declining to determine claim on grounds of alternative remedy of appeal to First-tier Tribunal — Whether exceptional circumstances making judicial review appropriate — Immigration Act 1971 (c 77), s 3C(1)(2) (as substituted by Nationality, Immigration and Asylum Act 2002 (c 41), Pt 6, s 118)
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R (Khan) v Secretary of State for the Home Department —

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Tax
Marcandi Ltd (t/a Madbid) v Revenue and Customs Comrs — [2018] 4 WLR 128
REVENUE — Value added tax — Supply of goods or services — VAT applicable to sale of “credits” used to participate in online auctions — Whether issue of “credits” in return for money constituting supply of services for consideration or whether preliminary transaction — Whether value of “credits” used to bid included in consideration received by the taxable person in return for supplies of goods — Whether, where two member states treating same transaction differently for VAT purposes, the courts of one state required to take into account need to avoid double taxation or double non-taxation — Council Directive 2006/112/EC, arts 2(1)(c), 73
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Tax
Higgins v Revenue and Customs Comrs — [2018] WLR(D) 596
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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Tort
Singularis Holdings Ltd v Daiwa Capital Markets Europe Ltd — [2018] Bus LR 1796

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Trusts and Chancery
Griffin v Higgs — [2018] WLR(D) 602
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
Secretary of State for Business Energy and Industrial Strategy v Broadstock — [2018] WLR(D) 592
COMPANY — Director — Disqualification — Secretary of State bringing disqualification proceedings against directors on basis of unfit conduct — Guidance as to assessment of whether conduct making director unfit to be concerned in management of company — Company Directors Disqualification Act 1986 (c 46), s 6
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