Legal News

Original news London Borough of Southwark v Akhtar [2017] UKUT 150 ( LC) This ruling addresses whether notices connected to service charges were valid and properly served. One notice was given under a lease clause obliging the landlord to supply the tenant with a reasonable advance estimate of the service charge before each service charge year began (the lease notice). The tenant was required to settle that estimate by four equal instalments on 1 April, 1 July, 1 October and 1 January. Notices issued under section 20B of the Landlord and Tenant Act 1985 (section 20B notices), covering the same works as the lease notice, were likewise contested on the footing that they had not been served on the tenant and so were ineffective. What are the practical lessons from this decision? The safest course is plainly to adhere to the lease process. Failure to do so...

Original news Camelot Property Management Ltd and another company v Roynon [2017] Lexis Citation 28 What issues did this case raise? Why is it significant? The claim was issued by Camelot Property Management Limited and Camelot Guardian Management Limited (together, Camelot). Camelot is an organisation established to assist with the security of vacant property and to safeguard empty premises. They were engaged by Bristol City Council to protect a former, and at that time vacant, elderly care home in Bristol from vandalism and unlawful occupation. Camelot permitted Mr Greg Roynon to occupy part of the premises. Camelot maintained that his presence was solely as a property guardian and was strictly in line with an agreement between them which they contended was, and which on its face appeared to be, a licence. Camelot served notice terminating that licence, yet Mr Roynon declined to vacate the...

In brief: When is an expedited trial appropriate in a public procurement case? ( Joseph Gleave & Son Ltd v Secretary of State for Defence) Original news Joseph Gleave & Son Ltd v Secretary of State for Defence [2017] EWHC 238 ( TCC) What should public procurement lawyers take note of? The judgment offers a helpful recap of the principles for deciding applications for an expedited trial, together with the core questions when considering a stay. It also makes plain that, despite Directive 89/665/ EEC as amended (the Remedies Directive), there is no presumption in favour of speeding up proceedings in procurement disputes, whether the challenge arises before or after the tender process has concluded. Applied to the facts, two practical lessons stand out: First, any party contemplating expedition should alert the opponent at the earliest opportunity to evidence genuine urgency. Second, a...

Original news Sands (as trustee in bankruptcy of the estate of Layne (a bankrupt)) v Layne and another [2016] EWCA Civ 1159, [2016] All ER ( D) 160 ( Nov) The Court of Appeal, Civil Division, upheld the trustee in bankruptcy’s challenge and determined that Insolvency Act 1986, s 375(1) empowers a court to revisit, set aside or amend an order it has previously made while exercising its appellate jurisdiction over a decision from a lower court. What lessons of practical value should practitioners draw from this ruling? The ruling in Sands v Layne refines the boundaries of the jurisdiction under s 375(1) to review, rescind or vary orders within the relevant Parts of the Insolvency Act 1986 dealing with personal insolvency. It also examines when a bankrupt’s trustee and other creditors should be added as parties to any application seeking to rescind a...

Original news Brexit must not trade away environmental protections, Committee warns, LNB News 04/01/2017 90 The Environmental Audit Committee has cautioned ministers that safeguards for the environment must not be diluted during the UK’s exit from the EU or thereafter, and urges the introduction of a new Environmental Protection Act alongside Article 50 TEU talks to preserve the UK’s high environmental benchmarks. Such legislation would limit the danger of ‘zombie legislation’—that is, EU-derived rules carried into domestic law but left unrefreshed, vulnerable to being whittled away via statutory instruments with scant parliamentary oversight. What prompted the Committee to issue this report? Titled ‘ The Future of the Natural Environment after the EU Referendum’, it forms part of a suite of inquiries by the Committee into the real‑world consequences for UK environmental policy once we leave the EU. This work follows an earlier...

Original news New Dawn Homes Ltd v Secretary of State for Communities and Local Government [2016] EWHC 3314 ( Admin) What is the significance of the decision for authorities and developers? Here, the outcome rested on the facts and the precise language of the local plan policy. The judgment serves as a useful prompt about how far the explanatory text within local plan policies may assist in construing the policies themselves. A plan's supporting text comprises the reasoned justification and any descriptive or explanatory material for a policy. While that material is pertinent to interpreting the related policy, it is not a policy, nor part of one; it lacks policy force and cannot override policy. It neither creates new policy nor forms any part of the binding policy wording. Its role is interpretative only and cannot be used to trump policy....

Original news Makhlouf v Secretary of State for the Home Department ( Northern Ireland) [2016] UKSC 59, [2016] All ER ( D) 93 ( Nov) The Supreme Court rejected an appeal against a deportation order made against a foreign offender, notwithstanding that his children are British citizens living in the UK. While the appellant argued that removal would violate his and his children’s rights under article 8 of the European Convention on Human Rights, the court decided that, on the evidence, he had no relationship with either child and their lives had been completely unaffected by his being their father. The court also determined that the Secretary of State was not required to undertake further enquiries concerning the appellant and his children beyond those already conducted. What was the background to the case? The appellant, a Tunisian national, married a British citizen in Tunisia in 1996. In 1997, his...

Original news Dorinda Irene Holland v Oxford City Council [2016] EWHC 2545 ( Ch) Mrs Holland, a fairground ride operator, had for many years been permitted to use two pitches at an annual two-day fair. Each year she applied to Oxford City Council (the Council) and was allocated the same two sites. After a disagreement about the pitch measurements and a neighbouring operator’s complaint that she was encroaching onto his plot, Mrs Holland commenced proceedings asserting that she held a periodic tenancy of the two pitches. What are the practical implications of this case? As a matter of principle, a ‘tenant’ can acquire an annual periodic tenancy even if the occupation spans only a few days each year. The judgment further indicates that the court will prioritise the substance of the arrangement over any wording the parties have adopted. What was the issue...

Original news R (on application of Ingenious Media Holdings plc and another) v Revenue and Customs Commissioners [2016] UKSC 54, [2016] All ER ( D) 118 ( Oct) The Supreme Court ruled that statements made about the appellants by HMRC’s then Permanent Secretary for Tax to journalists at an off-the-record briefing were not justified under section 18(2)(a)(i) of the Commissioners for Revenue and Customs Act 2005 ( CRCA 2005). The court concluded that CRCA 2005, s 18(1) was designed to mirror the general principle of taxpayer confidentiality and that, properly construed, CRCA 2005, s 18(2)(a)(i) — read strictly — operates only as a limited carve-out, allowing disclosure solely where it is reasonably required for HMRC to carry out its core function. What was the background to the case? The Permanent Secretary for Tax had provided an off-the-record interview to two reporters from The Times about the...

How do you expect the provision of legal education at university level, namely the LLB, to change and adapt in order to attract the best students and promote the legal profession while also meeting market demands? We’re likely to see sharper distinctions between law schools, each appealing to particular kinds of students and forging links with different corners of the profession. With reforms proposed by the Solicitors Regulation Authority ( SRA) and the Bar Standards Board ( BSB), some programmes may resemble a fusion of academic study and the Legal Practice Course ( LPC), whilst others will, I hope, develop richer, more imaginative and multidisciplinary curricula. Have there been any recent proposals to change the structure or content of this course—for example, many argue the study of contract law in the first leaves students unprepared for when they next come across it, possibly four or more years...

What is the ideology behind CICs? What advantages do they have over local authority control of services? At its core, the rationale for transferring a council-run service into a community interest company ( CIC) is that establishing an autonomous, community‑orientated body—protected so that assets are applied for community benefit—releases potential for the service to grow and develop in ways that may not be possible if it remains under the local authority’s control. Placing management within a new entity is expected to free the CIC from inflexible managerial and pay frameworks associated with local authorities, together with stark financial constraints and the limited scope to secure third‑party funding. In turn, the CIC is anticipated to be more agile and to possess greater capacity for innovation. In many cases, services that are spun out could instead be operated by an independent charity. A key perceived reason for...

Government sets out plans to reform public financial guidance for consumers In March 2016, the government published a consultation paper outlining a proposal to replace MAS, TPAS and Pension Wise with a fresh delivery model. It is inviting views on how the services should be established and assessed, and on creating effective links between the two new guidance bodies and the broader sector, so that consumers can move seamlessly between guidance and advice providers. Views are requested on service design, assessment, and building links with the wider sector. The consultation closes on 8 June 2016. What is the background to this? The government states that it wants consumers to have access to high-quality, impartial, levy-funded, free-to-client financial guidance (public financial guidance). In October 2015 it launched two reviews—the Financial Advice Market Review ( FAMR—a joint review with the Financial Conduct Authority) and the Public...

In brief what did Lord Dyson say about judicial review and in its place in a democratic society? In his speech, Lord Dyson maintains that judicial review is a cornerstone of a democratic society. He regards it as self-evidently a vital safeguard, offering an effective way to ensure executive public authorities meet their statutory duties and do not act unlawfully. As those duties arise from the democratic process, he argues, their enforcement is an essential handmaiden to democracy itself. Accordingly, judicial review is, in his view, the very antithesis of anything that weakens or poses a threat to democracy... How does Lord Dyson address the increase in the number of judicial reviews in England and Wales? Lord Dyson identifies three chief reasons for the growth in judicial reviews in England and Wales: He suggests the standard of review has been relaxed, in part because judges are no...

Original news Chesterton Commercial ( Oxon) Limited v Oxfordshire County Council [2015] EWHC 2020 ( Ch) What was the background to the case? Chesterton, a property developer, bought three sites that included parking bays. A local authority search indicated the bays were not within the public highway. Yet the council omitted to disclose it had long been examining whether the land was in truth highway. It later concluded the land was highway and updated its records to reflect that. By then, relying on the search outcome, Chesterton had already exchanged contracts to acquire the property. Once completion had taken place, it transpired the search was wrong. The council contended the claim must fail as the search was accurate when issued. Chesterton went on to develop and sell the......

Original news Williams and another v London Borough of Hackney [2015] EWHC 2629 ( QB), [2015] All ER ( D) 99 ( Sep). The Queen’s Bench Division ordered damages of £10,000 for each claimant parent. While the children’s initial removal from the family home was lawful and a proportionate step to protect them from harm, the defendant authority’s continued retention of the children after the police protection order expired was unlawful; accordingly, the resulting interference with the parents’ article 8 European Convention on Human Rights ( ECHR) rights was also unlawful. What issues did the court have to decide in this claim? How rare or noteworthy is the decision? The background is that on 5 July 2007 Mr and Mrs Williams were arrested following allegations by one of their eight children that they would regularly use excessive corporal punishment to discipline the...

Original news Canary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks [2015] EWHC 1588 ( Ch) What is this case about? This matter concerns an appeal brought by Canary Wharf Group ( CWG), a London-based property company, against a ruling of the UK Intellectual Property Office ( IPO) that rejected the registration of CWG’s application to register the word mark CANARY WHARF, lodged in March 2013. The specification spanned printed matter (class 16) and services connected with real estate, building construction and design, car parking, landscape design and security (classes 36, 37, 39, 42, 44 and 45). By Decision O-423-14, the Hearing Officer refused the application on ‘absolute grounds’ under the Trade Marks Act 1994 ( TMA 1994), namely: trade marks lacking distinctive character must not be registered ( TMA 1994, s 3(1)(b)) trade marks consisting solely of signs or indications which may, in trade,...

Why are the protocols being amended? In his Final Report on Civil Litigation Costs ( January 2010), Lord Justice Jackson proposed retaining the pre-action protocols, while introducing targeted changes to improve how they work and to keep pre-action costs proportionate. He also advised creating a specific protocol for debt claims where a business pursues an individual. In response, a CPRC sub-committee was established to review and recommend any necessary amendments to the pre-action protocols. Although the sub-committee is still considering drafts of some protocols, several have been issued and, subject to ministerial sign-off, are expected to commence on 6 April 2015. Below is a summary of the protocols being revised and the stage each has reached, with links to the latest drafts where available. We will provide further updates as the CPRC publishes more material and will revise our Practice Notes once the...

Original news Digital TV streaming service found guilty of copyright violations, LNB News 26/06/2014 New York Times, 26 June 2014: The US Supreme Court held that Aereo, a television streaming platform, breached copyright by capturing broadcast signals with miniature aerials and forwarding them to subscribers for payment. The ruling was a significant victory for US broadcast networks, which argued Aereo had used a high-tech method to pilfer their content. What is the state of unauthorised online streaming in the US? The Aereo judgment adds to a global discussion about third parties distributing broadcast programmes, stepping in between broadcasters and viewers. The case turned on whether US copyright law required permission from broadcasters when Aereo picked up their programmes off-air and sent them online to its users. As a general rule, retransmitting a broadcast to the public in a Berne Convention country will infringe the...

Original news Kohler Mira Ltd v Bristan Group Ltd [2014] EWHC 1931 ( IPEC), [2014] All ER ( D) 130 ( Jun). After the Patent County Court (as it then was) found that the defendant had infringed the claimant’s UK unregistered design rights, the Intellectual Property Enterprise Court held that the claimant should receive a sum equivalent to a royalty of 6.7% of the price at which the defendant sold the infringing shower units to its customers. Moreover, exercising its discretion with reference to policy considerations, the court ruled that the defendant could not invoke the defence of innocence under the Copyright, Designs and Patents Act 1988, s 233(1), when it was advanced for the first time during the damages inquiry. Briefly, what was the background to this judgment? This ruling concerns a damages inquiry following last year’s liability decision— Kohler Mira Ltd v Bristan Group Ltd...