Civil litigation
Salekipour v Parmar — [2018] QB 833
COUNTY COURT — Jurisdiction — Rescission of earlier judgment — Judgment dismissing claim against defendants and allowing counterclaim — Claimants issuing fresh claim seeking to rescind judgment on grounds of fraud and subornation of witness — Whether County Court having jurisdiction to rescind earlier judgment on grounds of fraud — County Courts Act 1984 (c 28) (as amended by Courts and Legal Services Act 1990 (c 41), s 3 and Crime and Courts Act 2013 (c 22), s 17, Sch 9, para 10(1)(a)(b)) , ss 23, 38 — CCR Ord 37 r 1(1)
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Crime
Murin v District Court in Prague, Czech Republic — [2018] WLR(D) 558
EXTRADITION — European arrest warrant — Bar to extradition — Requested person’s extradition sought to determine whether to activate existing conditional suspended sentence — Whether request properly categorised as conviction warrant — Extradition Act 2003 (c 41), s 2(5)(b) — Council Framework Decision 2002/584/JHA
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Crime
R v Crilly (John Anthony) — [2018] 4 WLR 114
CRIME — Homicide — Murder — Joint enterprise — Defendant charged as secondary party to murder — Judge directing jury that foresight by secondary party that co-defendant might attack victim with mens rea for murder sufficient — Subsequent change in law requiring secondary party to have intention rather than merely foresight — Whether change in law would have made difference to verdict
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Crime
R (Purvis) v Director of Public Prosecutions — [2018] 4 WLR 118
CRIME — Practice — Prosecution of offences — Decision not to prosecute police officer for offences of attempting to pervert course of justice, misconduct in public office and perjury — Whether decision irrational in light of public interest factors in favour of prosecution — Whether evidential test met for prosecution for attempting to pervert course of justice
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Crime
R v Grant (Leon) — [2018] 4 WLR 115
CRIME — Jury — Panel — First trial jury discharged at end of prosecution case owing to work commitments of three jurors — Retrial following on immediately — One of jurors at second trial having been juror at first trial — Whether conviction safe
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Employment
Leeks v Norfolk and Norwich University Hospitals NHS Foundation Trust — [2018] ICR 1257
INDUSTRIAL RELATIONS — Employment tribunals — Procedure — Claimant with disability claiming failure to make reasonable adjustments by postponing case management hearing — Tribunal striking out claim — Order for costs — Correct approach to appellate scrutiny — Whether costs award fair
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Employment
Pemberton v Inwood — [2018] ICR 1291
DISCRIMINATION — Employment — Authorisation or qualification — Church of England priest married to same sex partner — Request for licence needed to take up post with NHS trust as hospital chaplain — Bishop refusing licence on ground same sex marriage inconsistent with teachings of Church — Claims of direct discrimination and harassment by bishop due to sexual orientation and/or marital status — Whether bishop “qualifications body” — Whether licence qualification for purposes of employment for purposes of organised religion — Whether bishop applying requirement to comply with doctrines of Church — Whether discrimination lawful on religious grounds — Whether unlawful harassment — Equality Act 2010 (c 15), ss 13, 26, 53, 54, Sch 9, para 2 (as amended by Marriage (Same Sex Couples) Act 2013 (c 30), Sch 7, para 45)
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Employment
Tyne and Wear Passenger Transport Executive v Anderson — [2018] ICR 1207
EMPLOYMENT — Wages — Deductions — Pay settlement dividing basic pay into two elements — Employer thereafter calculating shift allowance by reference to one element — Claimants alleging underpayment of shift allowance and holiday pay — Claim for unauthorised deductions — Whether employment tribunal having jurisdiction to construe settlement — Correct approach to construction — Employment Rights Act 1996 (c 18), s 13
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European Union
Asociación Profesional Elite Taxi v Uber Systems Spain SL — [2018] QB 854
EUROPEAN UNION — Freedom to provide services — Transport services — Information society services — Defendant operating intermediation service to connect, by means of smartphone application and for remuneration, non-professional drivers using own vehicles with passengers for urban journeys — Whether constituting transport service or information society service or combination of both — Whether prior administrative authorisation required — FEU Treaty, arts 56FEU, 58(1)FEU — Parliament and Council Directive 98/34/EC (as amended by Parliament and Council Directive 98/48/EC), art 1(2) — Parliament and Council Directive 2000/31/EC, art 3 — Parliament and Council Directive 2006/123/EC, arts 2, 9
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Family
In re T (A Child) (Care Proceedings: Court’s Function) — [2018] 4 WLR 121
CHILDREN — Care proceedings — Care plan — Local authority’s fostering panel refusing to approve child’s grandmother as foster carer — Judge finding placement with grandmother in child’s best interests but deferring making order for panel to reconsider granting approval — Fostering panel again refusing to grant approval — Judge placing child for adoption in light of lack of approval for grandmother — Respective functions of court and local authority in care cases — Whether judge erring
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Family
S v P (Unrepresented Party: Cross-examination) — [2018] 4 WLR 119
CHILDREN — Proceedings concerning — Unrepresented party — Grave allegations made by mother against father in private law children proceedings — Cross-examination of mother by unrepresented father not permitted at fact-finding hearing — Judge taking on burden of cross-examination in absence of alternatives — Whether judge putting father’s case properly and fairly — Observations on unrepresented parties cross-examining their accuser
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Family
S v S (Matrimonial Home: Interim Order for Sale) — [2018] 4 WLR 111
MARRIAGE — Divorce — Financial provision — Application in ancillary relief proceedings for interim order for sale of matrimonial home — Whether jurisdiction under procedural rules to order interim sale of property — Whether rights of occupation wife with legal and beneficial interest to be terminated — Matrimonial Causes Act 1973 (c 18), s 24A (as inserted by Matrimonial Homes and Property Act 1981 (c 24), s 7) — Family Law Act 1996 (c 27), s 33 — FPR r 20.2(1)(c)(v)
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Family
Lancashire County Council v A — [2018] 4 WLR 112
CHILDREN — Care proceedings — Disclosure — Fact-finding hearing in respect of non-accidental injury — Inadequate disclosure by police of potentially relevant material — Need for all parties to comply with 2013 Protocol in linked criminal and care hearings — Suggested guidance in such cases
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Family
In re A (Children) (Care Proceedings: Burden of Proof) — [2018] 4 WLR 117
CHILDREN — Care proceedings — Threshold criteria — Local authority applying for care orders in respect of five children following death of child — Judge finding local authority not having proved injuries to child deliberately inflicted — Whether judge failing properly to consider totality of all evidence — Whether judge erring in determining that case to be decided in percentage terms by reference only to burden of proof — Proper approach to burden of proof — Children Act 1989 (c 41), s 31(2)
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Family
In re G (A Child) (Wider Family: Disclosure of Court File) — [2018] 4 WLR 120
CHILDREN — Orders with respect to children — Access to court file — Order made in private law proceedings prohibiting mother from having direct contact with child following adverse findings — Undertakings given by parents not to discuss case with media — Consideration given in decision to circumstances of wider family and child’s older half-bothers — Application by half-brother many years later for access court file to further understanding and knowledge of family history — Mother seeking discharge of undertakings given to permit disclosure of documents to media — Court’s power to grant permission to inspect documents — Whether court to allow applications — FPR r 29.12(1)
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Family
H v T (Committal Appeal: Notices on Orders) — [2018] 4 WLR 122
CHILDREN — Orders with respect to children — Enforcement — Penal notice — Suspended committal order made against mother on application for enforcement of child arrangements order — Whether penal notice attached to original order adequate — Whether original order capable of being enforced by way of committal — Whether committal order wrong by reason of procedural defects — Guidance on correct format of warning and penal notice to be attached to child arrangements order — Children Act 1989 (c 41) (as amended by Children and Adoption Act 2006 (c 20), s 3 and Children and Families Act 2014 (c 6), Sch 2 para 15(b)), s 11I — FPR r 37.9
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Family
In re T (A Child) (Non-molestation Order) — [2018] Fam 290
CHILDREN — Orders with respect to children — Non-molestation order — Local authority applying for order against mother and partner — Whether court seised of “family proceedings” — Whether court having jurisdiction to make order — Whether order justified — Family Law Act 1996 (c 27), ss 42(2)(b), 42A(1), 63(1)
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Family
Lewis v Warner — [2018] Ch 450
FAMILY PROVISION — Dependant — “Reasonable financial provision” — Man and woman living together as husband and wife for 19 years in her house — Woman dying and leaving estate to her daughter in her will — Daughter claiming possession of house — Man having means to buy house — Whether disposition of estate failing to make “reasonable financial provision” for man — Whether man ineligible for “financial provision” for his “maintenance” — Whether arrangement for full consideration representing financial provision for person’s maintenance — Inheritance (Provision for Family and Dependants) Act 1975 (c 63) (as amended by Law Reform (Succession) Act 1995 (c 41), s 2, Civil Partnership Act 2004 (c 33), s 71, Sch 4, paras 15(2)(6), 18 and Inheritance and Trustees’ Powers Act 2014 (c 16), s 6, Sch 2, para 3), ss 1, 2, 3
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IP and Media
Land Nordrhein-Westfalen v Renckhoff — [2018] WLR(D) 522
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
Lowe v William Davis Ltd — [2018] 4 WLR 113
LAND REGISTRATION — Registration — Boundaries — Application for determination of exact boundary line — First-tier Tribunal holding application plan inaccurate and directing registrar to cancel application — Tribunal making finding as to location of boundary — Whether tribunal having jurisdiction to make finding — Land Registration Act 2002 (c 9), s 60(3)
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Land law
Stewart v Watts (Secretary of State for Communities and Local Government intervening) — [2018] Ch 423
LICENCE OR TENANCY — Exclusive occupation — Almshouse — Occupation of flat in almshouse administered by charitable trustees — Letter of appointment of almsperson setting out regulations including trustees’ power to set aside appointment for misconduct or breach — Trustees’ notice requiring almsperson to give up occupation of flat for breach of terms of letter of appointment — Whether trustees’ claim for possession “charity proceedings” requiring authorisation of Charity Commission — Whether almsperson licensee or tenant — Whether exclusion from security of tenure breach of Convention rights — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14 — Charities Act 2011 (c 25), s 115(8)
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Public law
R (Elmes) v Essex County Council — [2018] WLR(D) 546
PENSIONS — Pension scheme — Local government pension scheme — Claimant cohabiting with local government employee — Administering authority for pensions refusing to award survivor’s pension to claimant on death of employee on ground claimant not employee’s “nominated cohabiting partner” — Whether requirement for nomination of cohabiting partner incompatible with Convention rights — Whether administering authority required to disapply nomination requirement — Superannuation Act 1972 (c 11) (as amended by Public Service Pensions Act 2013 (c 25), Sch 8, para 8), ss 7, 12 (as amended by Public Service Pensions Act 2013 (c 25), Sch 8, para 8) — Human Rights Act 1998 (c 42), ss 3, 6(2)(b), Sch 1, Pt I, art 14, Pt II, art 1 — Local Government Pension Scheme (Benefits, Membership Contributions) Regulations 2007 (SI 2007/1166), regs 24, 25
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Public law
Teasdale v General Osteopathic Council — [2018] 4 WLR 116
MEDICAL PRACTITIONER — Fitness to Practice Panel — Appeal —
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Public law
R (Watson) v Secretary of State for the Home Department (Open Rights Group intervening) — [2018] QB 912
DATA PROTECTION — Personal data — Access to — United Kingdom legislation permitting Secretary of State to access communications data on grounds necessary for purpose of preventing or detecting crime — Claimants challenging validity of legislation in judicial review claim — Court of Justice ruling legislation incompatible with European Union law since access not restricted to purpose of fighting serious crime and not subject to prior review — Relief to be granted in light of ruling — Data Retention and Investigatory Powers Act 2014 (c 27), s 1 — Parliament and Council Directive 2002/58/EC (as amended by Parliament and Council Directive 2009/136/EC), art 15(1)
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Public law
Romein v Advocate General for Scotland — [2018] AC 585
NATIONALITY — British citizenship — Acquisition — Claim by descent though female line — Petitioner born in United States of America to mother having British citizenship by descent — At time of petitioner’s birth British citizenship by descent transmissible only through male line — Additional requirement to have birth registered at British consulate within one year if child born in foreign country to father who had himself acquired British citizenship by descent — Petitioner’s mother aware of existing law and so not registering birth at British consulate — Subsequent change of law to allow for transmission through female line — Change effected by providing for statutory assumption that law having always provided for citizenship by descent from mother in “same terms” as was provided for citizenship by descent from father — Petitioner seeking British citizenship on basis of change in law — Home Secretary refusing application on basis that “same terms” requiring registration at consulate to have occurred within one year of birth — Whether registration requirement in original provision remaining — Whether requirement applicable to petitioner — British Nationality Act 1948 (11 & 12 Geo 6, c 56), s 5(1)(b) — British Nationality Act 1981 (c 61), s 4C (as inserted by Nationality, Immigration and Asylum Act 2002 (c 41), s 13(1) and amended by Borders, Citizenship and Immigration Act 2009 (c 11), s 45)
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Public law
Mazhar v Lord Chancellor — [2018] Fam 257
HUMAN RIGHTS — Breach of Convention rights — Judicial act — Judge authorising removal of claimant to hospital under inherent jurisdiction — Claimant contending that removal and detention unlawful — Claimant seeking declaration of breach of Convention rights by judicial act — Whether court of co-ordinate having jurisdiction to make declaration — Whether Lord Chancellor vicariously liable for judicial act — Human Rights Act 1998 (c 42), ss 6, 7(1)(a), 8(1), 9(1)(c)(3), Sch 1, Pt I, arts 5, 6, 8 — CPR 7.11
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Public law
R (Mansfield District Council) v Secretary of State for Housing, Communities and Local Government — [2018] WLR(D) 553
PLANNING — Planning obligation — Application to discharge — Developer granted permission for development and entering into planning obligation to contribute to cost of associated highway works — Local authority carrying out highway works but developer not carrying out development — Local authority failing to determine developer’s application to discharge planning obligation — Inspector on appeal discharging planning obligation — Whether obligation no longer serving “useful purpose” — Whether purpose served to be planning purpose — Whether reimbursement for expenses incurred by local authority for developer’s benefit “useful purpose” — Town and Country Planning Act 1990 (c 8) (as amended by Planning and Compensation Act 1992 (c 34), s 12(1) and Greater London Authority Act 2007 (c 24), ss 33(2), 34(2)(3)), s 106A
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Public law
R (Gaskin) v Richmond upon Thames London Borough Council — [2018] WLR(D) 555
HOUSING — Multiple occupation — Licence — Local authority charging fees for licensing houses in multiple occupation — Level of fees including costs of application process and costs of management and enforcement after grant of licence — Local authority refusing to grant licence on claimant’s refusal to pay full fee — Whether letting and management for profit of house in multiple occupation “service” — Whether licence fee lawful — Housing Act 2004 (c 34), s 64 (as amended by Housing and Planning Act 2016 (c 22), Sch 2, para 2) — Provision of Services Regulations 2009 (SI 2009/2999) (as amended by Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (SI 2012/1809), Sch 1(2), para 1) regs 2(1), 18(4) — Parliament and Council Directive 2006/123/EC, arts 4(1), 13(2)
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Public law
R (Protreat Ltd) v Environment Agency — [2018] WLR(D) 554
ENVIRONMENT — Waste — Waste oil recycling — Whether defendant agency under duty to issue guidance as to when product derived from waste lubricating oil had achieved end-of-waste status — Nature and extent of obligation imposed by waste Framework Directive in relation to waste oils — Parliament and Council Directive 2008/98/EC, arts 1, 4, 6, 13, 21
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Public law
R (Pharmaceutical Services Negotiating Committee) v Secretary of State for Health — [2018] WLR(D) 556
NATIONAL HEALTH SERVICE — Statutory duty — Duty to have regard to the need to reduce inequalities — Secretary of State promulgating changes reducing community pharmacy remuneration — Whether process lawful — Whether Secretary of State failing in “duty to have regard to the need to reduce inequalities” — Whether different from duty to “have due regard” in equality legislation — National Health Service Act 2006 (c 41), ss 1, 1C (as inserted by Health and Social Care Act 2012, s 4), 165(9)) — Equality Act 2010 (c 15), s 149(1)
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Public law
R (Buxton) v Secretary of State for Work and Pensions — [2018] WLR(D) 547
DISCRIMINATION — Disability — Indirect discrimination — Secretary of State setting cap on funding payable to any individual under access to work scheme for disabled persons — Cap having particular impact upon deaf people by reason of high cost of hiring British sign language interpreters — Whether cap unlawful as being indirectly discriminatory against deaf people — Whether indirect discrimination justified — Employment and Training Act 1973 (c 50), s 2 (as substituted by Employment Act 1988 (c 19), s 25(1) and amended by Employment Act 1989 (c 38), s 29(4), Sch 7, Pt I and Trade Union Reform and Employment Rights Act 1993 (c 19), s 47(1)) — Equality Act 2010 (c 15), s 19
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Public law
R (Wakenshaw) v Secretary of State for Justice — [2018] WLR(D) 548
JUDICIAL REVIEW — Parole Board — Judicial independence — Secretary of State pressuring chairman of Parole Board to resign — Whether Parole Board constituting judicial body — Whether Secretary of State breaching principle of judicial independence — Whether Secretary of State having authority to remove chairman of Parole Board
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Tax
Moorthy v Revenue and Customs Comrs — [2018] ICR 1326
REVENUE — Income tax — Settlement sum — Taxpayer and employer compromising claim for unfair dismissal and age discrimination — Taxpayer paid ex gratia sum as compensation for loss of employment — Revenue assessing sum as chargeable to income tax as employment income — Whether settlement sum taxable — Whether sum taken out of charge by exemption on account of injury to taxpayer's feelings sustained in age discrimination claim — Income Tax (Earnings and Pensions) Act 2003 (c 1), ss 401, 406
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Tort
James-Bowen v Comr of Police of the Metropolis — [2018] ICR 1353
NEGLIGENCE — Duty of care — Police commissioner — Commissioner defending and settling claim by third party as vicariously liable for assaults by police officers — Officers claiming commissioner in breach of duty to protect them from economic and reputational harm in conduct of third party claim — Whether commissioner owing officers such duty of care — Whether such duty arising under employer’s implied duty of trust and confidence — Whether fair just and reasonable to impose such duty
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Tort
Bussey v 00654701 Ltd (formerly Anglia Heating Ltd) — [2018] ICR 1242
NEGLIGENCE — Personal injury — Foreseeability — Deceased dying of mesothelioma following exposure to asbestos at work — Whether foreseeable risk of injury — Whether proper test that risk “unacceptable” or “significant”
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Tort
Williams v Network Rail Infrastructure Ltd — [2018] WLR(D) 557
NUISANCE — Private — Encroachment — Pernicious weed on defendant’s land encroaching by spread of rhizomes under claimants’ neighbouring land — Eradication difficult and risk of damage to claimants’ properties from spread of rhizomes — Whether encroachment actionable in nuisance — Whether claimants entitled to damages for loss of amenity — Whether damages recoverable for diminution in value of claimants’ properties
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Trusts and Chancery
Cyprus Popular Bank Public Co Ltd (in special administration) v Vgenopoulos — [2018] QB 886
CONFLICT OF LAWS — Foreign judgment — Recognition — Claimant obtaining worldwide freezing order against defendants in proceedings before Cypriot court — Freezing order registered as judgment of High Court pursuant to European Union Regulation — Claimant notifying third party bank of freezing order and seeking compliance in relation to assets of defendants — Defendants appealing against registration order within applicable time limits — Whether freezing order becoming immediately effective and enforceable on registration — Whether enforceability subject to appeal process — Whether prohibition on taking “measures of enforcement” pending appeal relating only to enforcement action in which court involved — Council Regulation (EC) No 44/2001, arts 38.2, 47.3 — Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929), Sch 1, para 2 — CPR rr 74.6, 74.9
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Trusts and Chancery
Ilott v Mitson (No 2) — [2018] AC 545
FAMILY PROVISION — Child — Estranged adult daughter — Deceased mother making no testamentary provision for estranged daughter — Whether deceased failing to make “reasonable financial provision” — Whether, if so, award from estate appropriate — Inheritance (Provision for Family and Dependants) Act 1975 (c 63) (as amended by Law Reform (Succession) Act 1995 (c 41), s 2), ss 1, 2, 3
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