Legal News

Re Hut Group Ltd; Zedra Trust Company ( Jersey) Ltd v The Hut Group Ltd [2021] EWCA Civ 904 What are the practical implications of this case? The Court of Appeal, in this decision, reaffirmed two central principles. First, when evaluating whether directors’ conduct, representing breaches of their fiduciary and statutory obligations to the company, amounts to conduct that is unfairly prejudicial to the petitioner, the critical enquiry is not to whom those duties are owed, but whether the complained‑of conduct unfairly prejudiced the petitioner in his capacity as a shareholder; if so, it is conduct capable of establishing unfair prejudice. Second, allegations of bad faith akin to fraud must be supported by the proper pleading of credible, cogent primary facts that sustain those allegations, either expressly or by reasonable inference drawn from them. Bare assertions or generalised averments of bad faith, advanced without pleaded...

Ahuja Investments Ltd v Victorygame Ltd and another [2021] EWHC 1543 ( Ch) What are the practical implications of this case? Mr Justice Vos determined that there is no overarching rule barring a claim to litigation privilege merely because the opposing party was prompted to give information they would not have disclosed had they known the genuine, deliberately hidden objective of the request. The rationale is that litigation privilege exists to permit a party to obtain material to place before their legal advisers for the conduct of their case without concern that such material must be handed to the other side (see paras [59] and [61]). That said, practitioners should exercise caution. The authorities reviewed demonstrate that where there is unequivocal deceit by the requester, and where the exchange involves the litigating parties themselves rather than a third party, the courts have not...

AB v Chethams School of Music [2021] EWHC 1419 ( QB) What are the practical implications of this case? The decision provides a clear illustration of the courts’ approach to applications under section 33 of the Limitation Act 1980 ( LA 1980) in sexual abuse claims. It emphasises that the persuasiveness of the evidence is the key consideration, even where a lengthy delay is understandable. Where substantial time has passed between the abuse and the issue of proceedings, practitioners should concentrate on the credibility and consistency of the claimant’s testimony. The judgment also contributes to the now well-established jurisprudence on the vicarious liability of educational institutions for sexual assaults by teachers and other staff. Many of the incidents occurred away from the school and while the perpetrator was acting as the claimant’s guardian rather than in a teaching capacity. Drawing on A v Hoare [2006] EWCA Civ 395...

Goshawk Aviation Ltd and other companies v Terra Aviation Network SAS and other companies [2021] EWHC 1029 ( Comm) What are the practical implications of this case? This decision provides a concise survey of the key principles governing applications to serve proceedings outside the jurisdiction and, more generally, by alternative methods. The first question is whether the state in which service is to be effected is a contracting party to the Hague Service Convention or to any bilateral instrument. If no such convention or treaty is engaged, an order permitting alternative service does not threaten to circumvent the terms of any international arrangement. In those circumstances, the court’s task is simply to determine, in light of all the facts of the particular matter, whether there is a sound basis for granting the relief sought. The court ought not to devote...

Commerz Real Investmentgesellschaft mbh v TFS Stores Ltd [2021] EWHC 863 ( Ch) What are the practical implications of this case? Advisers have long anticipated a defended claim for arrears of commercial rent predicated on the now routine coronavirus arguments that have echoed since the first lockdown in March 2020. Yet, despite the undeniable hardship endured by retail and other business occupiers during the pandemic, the court’s scope to recast the parties’ bargain is minimal. Put shortly, the court is tasked with enforcing, not reshaping, the bargain the parties struck. Sympathy cannot rewrite the parties’ contracts. Two aspects of the ruling stand out. First, implying a term into a meticulously negotiated commercial lease to suspend rent when government measures compel the premises to shut is exceptionally difficult. Those brokering pandemic provisions on renewals under the Landlord and Tenant Act 1954 will recognise the breadth and...

Iddon v Warner [2021] Lexis Citation 39 What are the practical implications of this case? There is no definition in the Criminal Justice and Courts Act 2015 ( CJCA 2015) of what amounts to ‘substantial injustice’ in s 57(2). In LOCOG v Sinfield [2018] EWHC 51 ( QB) at [65], Mr Justice Knowles observed that it must denote more than the claimant merely losing damages for those heads not tainted by dishonesty (see also Recorder Hatfield QC in Stanton v Hunter [2017] Lexis Citation 989). A further difficulty for the defendant here was Mrs Iddon’s determination to proceed to trial, clinging to the hope of avoiding her claim’s dismissal. His Honour Judge Sephton QC’s conclusion that a change of position brought about by an interim payment does not, by itself, activate the substantial injustice jurisdiction provides welcome clarity on statutory...

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...

Martin and another v Kogan and others [2021] EWHC 24 ( Ch) What are the practical implications of this case? The judgment represents the latest chapter in the parties’ protracted litigation. At the retrial, Mr Justice Meade applied the Court of Appeal’s formulation of joint authorship in Kogan v Martin and others [2019] EWCA Civ 1645. He likewise examined the legal framework for evaluating witness testimony, including the overall approach to the dependability of witnesses’ recollections and the comparative weight to be placed on memory as opposed to contemporaneous records. In that context, he addressed the effect of Gestmin SGPS SA v Credit Suisse ( UK) Ltd [2013] EWHC 3560 ( Comm), [2013] All ER ( D) 191 ( Nov). He further considered how the balance of the remaining evidence should be assessed where a portion of a witness’s account is rejected as untrue. In...

Mathewson v Crump and another [2020] EWHC 3167 ( QB) What are the practical implications of this case? The decision underscores the significance of timing and, crucially, the extent of control when deciding if a defendant is an occupier for the purposes of the OLA 1957. It cautions against conflating ownership with occupation. Control remains the key indicator of occupation and must be assessed within the factual context, which includes, among other things, who grants permission to go onto the property. Procedurally, the matter was notable because the court directed a split trial—liability and then quantum—on the first day (at paras [8]–[9]), apparently, at least in part, to give the claimant acting in person an opportunity to put his affairs in order. The judge observed that the claimant ‘would very much benefit from legal advice and representation when it came to arguing the quantum part of the...

Associates Ltd v Gibbeson [2020] EWCA Civ 1460 What are the practical implications of this case? This decision will interest appeal practitioners, notably those advising where permission to appeal has been refused on the papers, the application has been branded totally without merit, and an order has also been made preventing the applicant from seeking an oral reconsideration under CPR 52.4(3). It concerns scenarios where the court, on paper, concludes an application is wholly without merit and, simultaneously, bars any oral renewal of the permission application. The Court of Appeal reaffirmed two settled points: no appeal lies from a High Court decision to grant or refuse permission to appeal ( AJA 1999, s 54(4)); and the Court of Appeal has no jurisdiction to entertain an appeal from a high court judge’s certification that an application is totally without...

Adare Finance DAC v Yellowstone Capital Management SA and another [2020] EWHC 2760 ( Comm) What are the practical implications of this case? This ruling serves as a convenient and accessible single reference point for practitioners on how to approach applications for summary judgment or strike out in general practice, and on the scope and interpretation of the equitable doctrines of unconscionable bargains, economic duress and penal provisions in particular detail. After a thorough and careful wide-ranging survey of the authorities, Peter Mac Donald Eggers QC, sitting as a Deputy Judge of the High Court, firmly concluded that the defendants could not sidestep their freely negotiated contractual obligations by advancing nebulous allegations of victimisation by Adare. The judgment further emphasises that a litigant who is an experienced businessman with substantial means and access to top-quality legal advice cannot be treated as...

Bath Rugby Ltd v Greenwood and others [2020] EWHC 2662 ( Ch); Bath Rugby Ltd v Greenwood and others [2020] EWHC 2856 ( Ch) What are the practical implications of this case? The ruling offers a helpful survey and reaffirmation of what is needed for the annexation of the benefit of restrictive covenants made before the Law of Property Act 1925 took effect. While covenants of such vintage now seldom surface in property disputes—the one here dating back almost a hundred years—the judgment is of broader relevance for its treatment of annexation and its discussion of Crest Nicholson Residential ( South) Ltd v Mc Allister [2004] EWCA Civ 410, a post‑1925 covenant case. In particular, it considers Chadwick LJ’s remark that, for annexation to bite, the land intended to take the benefit must be ‘easily ascertainable’. Bath Rugby further exemplifies how the court...

BDW Trading Ltd v Lantoom Ltd [2020] EWHC 2744 ( TCC) What are the practical implications of this case? This case is notable because the hearing occurred the day after CPR 3.15A took effect. The claimant argued that the previous rule ought to govern matters since the significant developments relied upon, together with the correspondence and the application, all pre-dated the amendment. The judge observed that, without a relevant transitional provision, that may not be correct; however, neither side suggested that the altered wording made any difference on the facts. It proved highly advantageous that the claimant had expressly set out its initial expectation regarding the volume of documents it anticipated receiving. Regional Costs Judge Richard Lumb has publicly stressed how critical this can be. By setting the stated assumption against what actually materialises, showing a significant development becomes far more...

Palmali Shipping SA v Litasco SA [2020] EWHC 2581 ( Comm) What are the practical implications of this case? This judgment carries two key consequences. First, Foxton J determined that the court can grant summary judgment, on the pleaded approach, for the quantification of damages in a breach of contract, even where the defendant is unable to show that no damages are recoverable at all. A dispute over the proper methodology for assessing loss amounts to a ‘particular issue’ within CPR 24.2. Second, the court considered the so‑called ‘net loss approach’ to damages. Where a claimant bears a legal obligation to third‑party companies for costs incurred in performing the contract, those expenditures must be credited when arriving at the net loss claimed against the defendant, even if those third‑party companies have the same beneficial owner as the claimant and even if, in practice, such...

Re C (a child) [2020] EWCA Civ 987, [2020] All ER ( D) 136 ( Jul) What are the practical implications of this case? The case arose when, during a remote hearing that had far exceeded its time estimate, a hard-pressed judge expressed irritation about the mother in what she believed was a private exchange with her associate. As the hearing link had not been closed, the parties unintentionally overheard the remarks. The Court of Appeal had to determine whether those adverse comments signalled a real possibility of bias; while sympathetic to the pressures the judge faced, it concluded that they did. Considerable understanding was extended to the judge, whose off-the-record words were accidentally audible during a break. The backdrop of the worldwide coronavirus ( COVID-19) pandemic is significant. The Court of Appeal recognised that family judges are grappling with...

Re Juraid Anwer [2020] EWHC 1745 ( Ch), [2020] All ER ( D) 94 ( Jul) What are the practical implications of this case? The key takeaway from this decision is that Mr Anwer filed a second application to set aside the statutory demand while the first had been adjourned pending the outcome of linked county court proceedings. As the second application relied on the same grounds, the court found it to be a duplicative proceeding, disproportionate and a misuse of resources. It was accordingly deemed totally without merit and this was taken into account when granting an ECRO. Those seeking to set aside statutory demands—and their legal advisers—should exercise particular caution before issuing a further application where an earlier one is still extant. The court will be alert to attempts to use a second application to sidestep an adjournment of the first; it will...

Collier and others v Bennett [2020] EWHC 1884 ( QB) What was the background? This ruling concerns applications for Norwich Pharmacal relief, or in the alternative pre‑action disclosure, to identify the person behind an anonymous Twitter account and to secure copies of tweets said to be libellous and harassing of the claimants. The claimants, each of whom is Jewish and publicly known for taking an active stance against anti‑semitism, are: Mr Collier – a blogger, researcher and campaigner against anti‑semitism; Ms Riley – a television presenter; Ms Oberman – an actress. They have issued proceedings in respect of a Twitter profile (the account) using the pseudonym “ Harry Tuttle”, which, they contend, has for some time been deployed as a vehicle to target a number of Jewish individuals through harassment and defamation. The defendant, Mr Bennett, is a Jewish barrister who has been described as “a pro‑ Corbyn...

Serafin v Malkiewicz and others [2020] UKSC 23 What are the practical implications of this case? Lessons from the unfair trial aspect include guidance for judges and practitioners on engaging with a litigant in person ( LIP). Judges owe duties, and lawyers have professional duties to the court. Working with LIPs can be challenging, exasperating and take considerable time—sometimes more so than dealing with overly combative solicitors. Clients may struggle to understand why you appear to ‘assist’ an unrepresented opponent. Yet justice demands that those without representation are treated with politeness and dignity, and are given at least basic assistance and direction to find their way through the court process. Only then can justice truly be achieved for all involved in the process as a whole. On the DA 2013, s 4 defence, the Supreme Court’s judgment sets out principles which, though not strictly...

CWD v Nevitt and others [2020] EWHC 1289 ( QB) What was the background? The decision concerned allegations by the first defendant that the claimant sexually assaulted her, and by the second defendant that he raped her later the same night. The first and second defendants are sisters; the third defendant is their brother. The allegations were reported to the police, but after enquiries they took no further action against the claimant. Before proceedings were issued, the claimant applied without notice for an interim injunction to restrain alleged harassment and misuse of private information. That application was refused, partly due to concern he was “cause of action shopping”, as his real aim seemed to be to prevent information he said was untrue. However, the court granted an anonymity order, permitting him to sue as “ CWD”, with the defendants anonymised too. He then issued and served a claim for...

Homes for England v Nick Sellman ( Holdings) Ltd and another [2020] EWHC 936 ( Ch) What are the practical implications of this case? This judgment underscores the contrast between the common law and the statutory regime governing permission to bring derivative claims. It emphasises that common law takes a tighter line than the CA 2006, s 263 test: a prospective claimant must allege fraud or a dishonest breach of duty to proceed at common law; mere negligence by the putative defendant will not do. In addition, for equitable fraud there must be proof that the alleged wrongdoer secured some personal advantage. That advantage need not be financial—pursuit of the wrongdoer’s own non-monetary interests at the claimant’s expense has been accepted as enough (see Estmanco ( Kilner House) Ltd v Greater London Council [1982] 1 All ER 437 and Abouraya v Sigmund [2014] EWHC 277 ( Ch) at...