Legal News

Abdulrazaq and others v Hassan and others [2021] EWHC 3252 ( QB) What are the practical implications of this case? The judgment’s central interest lies in its treatment of the claimants’ contention that the impugned words were not, in truth, a reply issued by the defendants to an attack from the claimant. Rather, the claimants advanced that those words amounted to a riposte to an attack they had themselves published in expectation of a likely assault by the defendants (that is, a riposte to a reply published in anticipation). On that basis, the claimants said the privilege ought not to extend to the defendants’ riposte to the claimants’ attack/anticipated reply. Typically, reply-to-attack privilege does not cover the initial publication—the attack—but does protect the reply, irrespective of whether the first publication is defamatory. The claimants maintained that a riposte to a predicted attack should fall outside the...

Under the most recent draft prepared by Slovenia, which will steer legislative negotiations in the Council of the EU through the very end of this year, the remit is set to be expanded to also cover regional and local public authorities formally marked by national governments as critical, as any interruption to their operations or services could seriously affect public safety and security. The update to Directive ( EU) 2016/1148, the NIS Directive, tabled by the European Commission in December 2020 aims to harmonise national cybersecurity approaches, to foster the exchange of threat information between countries and to mandate a baseline of security obligations for companies whenever they fall......

A recent county court judgment throws a spotlight on CCTV/video camera surveillance and data protection, including the lesser-discussed issue of audio recording. André Bywater and Jonathan Armstrong, lawyers at Cordery in London with a compliance focus, outline the ruling’s key data protection points. Fairhurst v Woodward case no G00MK161 What are the practical implications of this case? As a county court decision, this is not binding authority. Nevertheless, with the spread of smart doorbells and other video and audio recording systems, it offers a helpful illustration of questions that courts and regulators are likely to face in future. Although the claim concerned a domestic property, the same issues can also arise for businesses, serving as a reminder that both individuals and organisations must take data protection compliance seriously when using surveillance systems. UK businesses should consider the most...

Mars Capital Finance Ltd v Hussain and others [2021] EWHC 2416 ( Ch) What are the practical implications of this case? This ruling underlines that, after a transfer of land has been entered on the register, any prior defects in the enforceability of the underlying contract for that transfer cease to matter. Accordingly, earlier formal shortcomings cannot be used to unsettle a completed, registered disposition. That principle is clear and decisive here. In addition—though not essential to the outcome—the judge endorsed the position that sections 43 and 44 of the Companies Act 2006 permit three mechanisms for a company to enter a written contract (by the company or on its behalf). This contrasts with the interpretation that, for the purposes of the Law of Property ( Miscellaneous Provisions) Act 1989, only two methods exist, and it departs from Lewison J’s approach in Redcard Ltd v...

Desporte v Bull [2021] EWHC 2370 ( QB) What are the practical implications of this judgment? This ruling underscores that, where an adversary is intent on clogging the process and harassing the court and other participants with a flood of hopeless claims and applications, parties ought to act promptly by seeking an ECRO, curbing escalating costs and avoiding futile hearings. It also distils the principles judges apply when considering such orders. Crucially, although a person's lack of representation is a relevant feature, it does not pardon persistent abuse of process or baseless claims, especially where clear warnings about the likely repercussions have already been given. What was the background? Although we attempt to condense the backdrop, the matter comprises a tangled web of claims, applications, hearings and rulings across a number of years, many found to be wholly without merit or aimed solely at...

Galer v Mond (administrator of SFPL Ltd) and another [2021] EWHC 1952 ( Ch), [2021] All ER ( D) 110 ( Jan) What are the practical implications of this case? Several elements of this ruling turn on the precise wording of the facility agreement and the deed of assignment, so its broader relevance is limited. Even so, the court set out helpful general guidance: in the absence of any evidence of misconduct, it is wholly improper to imply that a particular administrator will fail to fulfil their duties properly. The judge made plain that one cannot obtain a declaration that an administrator’s appointment is invalid by relying on what he described as 'a smokescreen of general allegations'... What was the background? SFPL Ltd ( SFPL) was incorporated in August 2016 as a vehicle for the acquisition and development of a property in London. There were a number of...

Mincione v Gedi Gruppo Editoriale Sp A [2021] EWHC 2006 ( QB) What are the practical implications of this case? The ruling offers practical insight for practitioners on procedure and substance. On the procedural front, it intimates that a defendant may contest the court’s jurisdiction under CPR 11(1) in relation to only part of a claim, not merely the whole. Although, on a literal reading, CPR 11(1) does not appear to authorise such a partial challenge, the notes in Civil Procedure 2021 ( Volume 1) (the White Book) suggest—albeit without authority—that it can be done. Tipples J voiced reservations because of the wording of CPR 11(1), particularly when contrasted with a provision like CPR 24.2(a). Nevertheless, as the claimant did not take the point, the court proceeded on the footing that jurisdiction existed. The judgment also addresses timing. Where the...

‘ CV- Online Latvia’ SIA v ‘ Melons’ SIA Case C-762/19 What are the practical implications of this case? Across the EU, when a website or online database provides a search tool that automatically draws into its results information sourced from third-party databases, this will typically infringe database right. There can, however, be circumstances where the practice is lawful if it can be shown that using data from those third-party databases does not prejudice the maker’s investment—for instance, where the data is deployed in a wholly unrelated market that the maker neither foresaw nor competes in. Nonetheless, in most situations it will be necessary to obtain permission from the maker of any third-party databases employed to produce an aggregated search result. What was the background? A jobs website ( Melons) offered a search engine that queried several websites hosting job...

Newman v Southampton City Council and others [2021] EWCA Civ 437 What are the practical implications of this case? This ruling reinforces that, as the Supreme Court confirmed in PJS v News Group Newspapers Ltd [2016] AC 1081, appeal courts are slow to disturb a trial judge’s evaluation of the balance between the competing rights under Article 8 and Article 10 of the European Convention on Human Rights, provided the judge has conducted the exercise correctly. The dispute centred on how the principle of open justice operates where privacy and freedom of expression are finely balanced. It offers a practical illustration—against particularly delicate facts—of the degree to which written material placed before the court in proceedings should be available to non-parties, and the form in which such access ought to be granted. More broadly, the case exemplifies the ongoing tension in the family courts between...

Glenn v Kline [2021] EWHC 468 ( QB) What are the practical implications of this case? This ruling illustrates, in a straightforward way, how damages are assessed in online harassment and defamation disputes, and sets recent awards in comparable matters side by side. It further confirms that where defamation and harassment claims intersect, and the defamatory publications are themselves the harassing conduct, a single, composite sum for damages is the correct approach. As a result, claimants may sensibly question issuing both causes of action unless they relate to different timeframes. Here, the harassment claim encompassed posts that were out of time for defamation (ie before May 2019), together with publications that also featured in the defamation claim. The court also offered guidance on the likely form of relief under section 12 of the Defamation Act 2013 ( DA 2013), which obliges a...

Software Solutions Ltd and others v 365 Health and Wellbeing Ltd and another [2021] EWHC 237 ( IPEC) What are the practical implications of this case? For practitioners advising on software, this judgment carries weight for several reasons, notably its treatment of copyright and database right in relation to XML. It clarifies that while XML schemas can attract literary copyright, they will not qualify as a ‘database’ under the Copyright and Rights in Databases Regulations 1997 (the Database Regulations) unless they amount to a ‘collection of independent data’. The decision also offers useful guidance on the courts’ approach to awarding additional damages for copyright infringement under section 97(2) of the Copyright, Designs and Patents Act 1988 and under Regulation 3 of the Intellectual Property ( Enforcement, etc) Regulations 2006 ( SI 2006/1028), which implements Article 13 of the Enforcement Directive. It includes a...

The objections centre on well-known long-standing concerns over data retention, access for law enforcement, and immigration policy; moreover, lawmakers went further, drawing attention to serious earlier issues with the UK’s use of the Schengen Information System ( SIS) database and to both potentially conflicting commitments under other international agreements. Under EU data protection rules, sending personal data to countries beyond the EEA is strictly lawful only where protection is judged ‘adequate’, where extra safeguards are adopted, or where one of a small set of derogations applies. At present, ongoing data flows between the EU and the UK run under an interim framework embedded in the broader EU– UK Trade and Cooperation Agreement of December 2020, which will lapse by June 2021 at the latest. The Commission must determine whether the UK, which officially departed the 27‑nation EU last year, affords...

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

Riley v Sivier [2021] EWHC 79 ( QB) What are the practical implications of this case? This judgment offers a practical benchmark for the bare minimum particulars needed to run a truth defence in a libel claim. The pleaded case relied on social media threads that required reading in their entirety. They were to be considered in full, rather than taken in isolation or fragment by fragment. Assertions that Ms Riley participated in, and incited, Twitter harassment of a 16-year-old were not borne out by the ‘straightforward’ and ‘civil’ interactions. The court dismissed the notion that a public figure with a sizeable audience, like Ms Riley, is obliged to stop followers from abusing another user on Twitter. That will reassure high-profile users who trade in forthright debate on the platform. The judgment sets out, with clarity, how these principles apply to Twitter, and they ought to be...

As outlined in the editorial note to the Guide, this seventh edition is a comprehensive overhaul and reflects developments since the previous edition, including: the roll-out of electronic working and filing in the Central Office of the Queen’s Bench Division at the Royal Courts of Justice, through the CE- File digital court file and management system amendments to CPR 53 and CPR PD 53 relating to the Media and Communications List changes arising from Brexit and the close of the transition period under the UK Withdrawal Act revisions to the contempt regime updates to the enforcement regime For more information, see: What are the key changes? The following summarises the principal changes practitioners should note: Electronic filing The revised Guide introduces a brand-new Chapter 3 addressing electronic filing and codifying the compulsory use of CE- File for legally...

Onwude v Dyer and others [2020] EWHC 3577 ( QB) What was the background? This defamation claim arose from articles posted on the BMJ’s website that reported a GMC disciplinary panel’s decision concerning the claimant, Mr Onwude, together with Mr Onwude’s ensuing High Court appeal about the same decision. The defendants were the journalist who wrote the report ( Ms Dyer), the BMJ’s editor ( Dr Godlee), and the journal’s publisher (the BMJ). The context of the claim focused on several charges alleging impaired fitness to practise by reason of misconduct, brought against Mr Onwude by the Medical Practitioners’ Tribunal ( MPT) Service, a statutory committee of the GMC. After the hearings, the MPT found every charge proved and imposed the penalty of erasure from the Medical Register, unless Mr Onwude used his right of appeal within 28 days. It also ordered his...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...

One Plus Technology ( Shenzhen) Co, Ltd and other companies v Mitsubishi Electric Corp and another company [2020] EWCA Civ 1562 What are the practical implications of this case? Courts acknowledge that, in confined and exceptional situations, a party’s internal commercial staff should have their access curtailed. Judging whether disclosed material warrants a confidentiality club for case management is a taxing call for lawyers representing clients with sensitive interests. Clients often urge their teams to apply the most stringent ‘external eyes only’ tier, a stance that is not invariably defensible. This ruling identifies significant (though not exhaustive) factors to steer the treatment of confidential disclosure, including: the burden rests on the disclosing side to show that the ‘external eyes only’ label is justified preventing the opposing client from seeing particular records will be unusual and hinge entirely on the case’s specific...

Germany, presiding over gatherings of the EU’s member-state governments in the latter half of the year, plans to table an updated draft for the 11 November 2020 session, potentially opening the door to a common position among EU capitals. Should ministers settle on a deal, negotiations with the European Parliament may commence; the Parliament endorsed its own take on the e Privacy Regulation back in October 2017. The Commission first put the proposal forward in January 2017. Berlin has elevated the contentious e Privacy Regulation to a headline file for its six‑month stint at the helm of the EU Council, seeking a mandate to open talks with the European Parliament. Progress has been blocked by disputes about aligning the plan with the EU’s flagship General Data Protection Regulation, Regulation ( EU) 2016/679; about the treatment of ‘cookie walls’ (pop‑up prompts that deny entry to sites until a...