Legal News

Northumbrian Water Ltd, R v Water Services Regulation Authority [2024] EWCA Civ 842 Background to the decision As set out in the News Analysis: Northumbrian Water— No duty of prescription under the common law? ( R (on the application of Northumbrian Water Ltd) v Water Services Regulation Authority), the decision confirms that where a public authority enjoys a discretionary power, it is under no requirement to publish a policy explaining the manner in which that discretion will be exercised. Accordingly, any general requirement to codify how such powers are to be applied was rejected. This conclusion displaces the stance adopted in ZLL v Secretary of State for Housing, Communities and Local Government [2022] EWHC 85 ( Admin) or, more precisely, treats the dictum on a ‘duty of prescription’ as obiter. While the implications of that point are examined in the article...

Inheritance tax-gifts with reservation When an individual makes a gift of property (not limited to land, but property in the broader sense for these purposes), that asset will only be property subject to a reservation if, at any point during the relevant period, the property is not enjoyed to the entire exclusion, or virtually to the entire exclusion, of that individual and of any benefit to them by contract or otherwise (see section 102(1)(b) of the Finance Act 1986 ( FA 1986)). Occupation for a few weeks each year by the donor of land that he or she has given away may therefore fall within the 'virtually to the entire exclusion' exception. See Example 1 in IHTM14333. See also HMRC interpretation RI 55 ( November 1993) Inheritance tax-gifts with reservation......

The Court of Appeal has set aside the Competition Appeal Tribunal’s decision that had scrapped the penalties, finding the tribunal misconstrued the regulator’s case about a market‑sharing arrangement that pushed up prices of life‑saving hydrocortisone tablets. According to the appeal judges, the tribunal erred in thinking the CMA alleged the companies had knowingly broken competition law. Because the tribunal misread the case advanced by the CMA, the two were, as the judgment put it, largely ‘passing each other like ships in the night’. The judgment stresses that the CMA’s case contained no accusation of misconduct or dishonesty by any party or witness. Requiring the authority to prove dishonesty would make enforcement unworkable; the legislation does not demand it and, consequently, neither should the tribunal. The Court of Appeal further held that the regulator properly tested the companies’ witnesses in...

Janet Bray Ltd v HMRC [2024] UKFTT 787 ( TC) The taxpayer company supplied consultancy to the pharmaceutical industry and had just one director ( JB) with no other employees. It adopted an avoidance arrangement aimed at delivering tax-free sums to JB by way of loans from an employee benefit trust ( EBT), whilst at the same time obtaining an immediate corporation tax deduction for the taxpayer company’s contributions paid into the EBT. The deduction was said to be justified because the payment was made to an independent company to carry out a review of the business and to produce recommendations as to how key employees, such as directors, ought to be rewarded and incentivised. Although the company accepted that the scheme was ineffective, it nevertheless appealed against HMRC’s PAYE determinations in respect of the loans and the associated penalties. It...

Representatives for over 60,000 Asda shop employees, the majority of whom are women, urged the employment tribunal to rule that their roles are at least equivalent in value to those undertaken by warehouse staff. Andrew Short KC of Outer Temple Chambers, acting for the claimants, said every role supports Asda’s aim of ‘getting goods to customers so that customers can buy them’. He argued Asda assigns more weight to stewardship of goods than to care for customers and therefore ‘undervalues’ the contribution of predominantly female retail workers. According to the GMB union, the hearing, set to run for three months, will examine whether shop floor teams are unlawfully paid up to £3.74 an hour less than colleagues in depots. The dispute concerns equal value across the firm......

Apple's previous tax arrangements in Ireland violated state aid law in the EU, the EU's highest court found. According to the European Commission, Ireland’s authorities gave the US company a ‘selective advantage’ via tax arrangements in place dating to 1991 and 2007. The Commission also maintained the US giant enjoyed a long‑running ‘sweetheart deal’ in Ireland for many years......

The Court of Justice found that the European Commission’s zeal to net potentially risky transactions had distorted the equilibrium of merger control and the 'effectiveness, predictability and legal certainty that must be guaranteed to the parties to a concentration'. The ruling will come as a relief to businesses and their advisers who have bristled at the peril created in 2021, when the Commission adopted a policy of pulling in deals that had not been notified in Member States yet could still be referred to Brussels. For those doing deals, the decision reads like a wish fulfilled. The court stressed that EU merger rules had created an 'effective and predictable' oversight regime, mindful of 'legal certainty' and premised on having transactions examined straightforwardly and in the most fitting forum. To achieve that, there must be a 'clear allocation' of competences between the...

Antitrust Court of Justice upholds €2.4bn fine against Google for favouring its own comparison shopping service The Court of Justice delivered its ruling in Case C- 48/22 P Google and Alphabet v Commission, an appeal challenging the General Court’s judgment in Case T- 612/17, which had mostly rejected an action to annul the Commission’s 2017 decision imposing a €2.4bn penalty on Google for abusing its dominant position across several national online search markets by conferring an unlawful advantage on its own comparison shopping service ( AT.39740). In line with Advocate General Kokott’s opinion, the Court dismissed the appeal in its entirety, thereby confirming the General Court’s judgment. By way of context, on 27 June 2017 the Commission issued an infringement decision finding that Google abused its dominance in 13 national markets for general online search ( GOS) by favouring its own comparison shopping service ( CSS) over...

Competition policy UK Government sets out the timetable for rolling out the DMCCA 2024; the digital markets regime and competition reforms are due to start in December 2024 and January 2025. Justin Madders, the Minister for Employment Rights, Competition and Markets, provided a written statement to Parliament outlining the schedule for implementing the Digital Markets, Competition and Consumers Act 2024, which secured Royal Assent on 24 May 2024 ( DMCCA 2024)......

NSI Act UK National Security Regime: Government publishes Annual Report for 2024 On 10 September 2024, the UK Government released its third Annual Report (the Report) concerning the enforcement of the National Security and Investment Act 2021 (the NSI Act), spanning the period from 1 April 2023 to 31 March 2024. The principal points to note are outlined briefly below in summary here. Notifications: During the period 1 April 2023 to 31 March 2024, the Government received a total of 906 notifications: specifically, 753 mandatory filings, 120 voluntary submissions, and 33 retrospective notifications (ie after closing took place). This represents a modest increase when set against the previous reporting, in which 865 notifications were made overall......

CBI Constructors v Chevron Australia [2024] HCA 28 What are the practical implications of this case? Australia’s courts have cautioned parties that, where arbitration is split into stages, they should avoid reserving claims solely for the later phase. While that hazard arises within the arbitration process, the ruling demonstrates that, even if a tribunal entertains belated claims, Australian courts may intervene to enforce the bifurcated structure—particularly where a party sought or consented to it. Courts may therefore require adherence to the agreed sequencing and resist attempts to revisit it, holding participants to the bifurcation they requested or accepted. For common‑law arbitration practitioners, and mindful of the divergence between the majority and the dissent as expressed in their respective judgments, the HCA’s ruling confirms Fidelitas Shipping Co Ltd v V/ O Exportchleb [1966] 1 QB 630 as authority for the proposition that, where an award is...

New Financial report On 5 September 2024, New Financial reported that UK pension funds’ exposure to British shares in 2024 has slipped to 4.4%, down from 6.1% a year earlier. This is below the global average of 10.1%, and only Canada, Norway and the Netherlands commit a smaller portion to their domestic equities. The London-based think tank produced the study in collaboration with the Capital Markets Industry Taskforce, a group that works to enhance and promote the growth of capital markets in the UK. Over the last 25 years, UK pension funds have progressively reduced their holdings of domestic shares. Corporate defined benefit plans now allocate just 1.4% to UK equities, while public-sector schemes put around 9% into the market, the report noted......

Mergers The Commission cleared Compass Group’s acquisition of DR Holding ( M.11664) following phase I—see further, Midday Express. Notifications under the simplified procedure were received for: Utmost Group/ Lombard International Assurance Holdings ( M.11682) Tubacex/ Mubadala/ Spanish JV/ UAE JB ( M.11633) Tikehau Capital/ Bouygues/ Serena Industrial Partners/ Bellova JV ( M.11705) NOTE— For all live merger investigations, see further, EU mergers—ongoing cases tracker. State aid The Commission held three German measures benefitting Ryanair and Frankfurt- Hahn to be unlawful State aid. Germany must recover the incompatible aid, plus interest. Separately, other public funding for Frankfurt- Hahn, Haitec AG and Ryanair was found not to be State aid—see further, press release. The...

Thomas v (1) Surrey and Borders Partnership NHS Foundation Trust (2) Brett [2024] EAT 141 Steven Thomas’s appeal failed, with the EAT upholding an employment tribunal’s finding that his English nationalist belief, which encompassed anti- Islam views, was not protected by the Eq A 2010. The underlying ruling was made at a preliminary hearing in his claim against an NHS trust, following the termination of his employment after three months. Judge Clive Sheldon KC recorded that the claimant advanced a strand of English nationalism asserting there is no place in British society for Muslims or for Islam itself. He emphasised that the claimant is free to hold such views, but cannot rely on them to found a complaint of discrimination. Sheldon J also clarified that English nationalism, in principle, can amount to a legally protected philosophical belief. The appeal was dismissed, leaving the...

Worcester v Hopley [2024] EWHC 2181 ( KB) What are the practical implications of this case? Parties should not proceed on the footing that a costs management hearing will automatically result in ‘costs in the case’. Under CPR 44.2 the court enjoys a broad discretion and will consider how each side has conducted the budgeting exercise when deciding what order to make on costs. Master Thornett commented on the entrenched High Court practice of listing costs management after, and apart from, case management. He observed that doing so tends to save time for both advocates and the court because it allows an interval in which parties can revisit, refine and, frequently, agree their budgets, or at least narrow the remaining points. Against that background, the court expects a pragmatic approach to costs management, with figures advanced that are not only sensible for the work...

Re PQ (court authorised DOL: representation during review period) [2024] EWCOP 41 What are the practical implications of this case? Lawyers and practitioners dealing with community deprivation of liberty matters must recognise how vital it is that the individual has an independent representative in place for the whole duration, namely the ‘review period’ (that is, the period between the final order and a planned review). Frequently, this is secured by appointing a rule 1.2 representative pursuant to the Court of Protection Rules 2007. Where no relative or friend can act under rule 1.2 as the appointed representative, the local authority must consider funding a professional representative, for example a Relevant Person’s Representative ( RPR), an Independent Mental Capacity Advocate, or a Care Act advocate. If the authority declines to meet that cost in the circumstances, the court must decide what...

DJ v Barnsley Metropolitan Borough Council and another [2024] EWCA Civ 841 What are the practical implications of this case? The Court of Appeal has effectively resolved the earlier gap in the law concerning familial foster carers, who are now to be treated in the same way as non-familial foster carers for the purposes of vicarious liability. Where familial foster carers have been assessed and approved by the local authority, vicarious liability may attach even if they receive no remuneration. It remains possible that the Supreme Court will be invited to re-examine the position. What was the background? The claimant, then aged ten, had been deserted by his parents, and the local authority arranged a placement with his maternal aunt and uncle. A foster assessment was undertaken by the local authority, which later assumed parental responsibility for the child. Many years afterwards, the claimant alleged he had been...

Speaker: Sarah Pritchard, executive director of markets and international Event: The Capital Markets Industry Taskforce conference Delivered: 6 September 2024 Notes: This speech is a draft and may not match the delivered version Key messages We are pressing ahead with an ambitious suite of reforms to reinforce the UK’s standing in global wholesale markets. After delivering the most significant overhaul of the listing rules in more than thirty years, we followed, within weeks, with further measures to strengthen the UK’s position as a vibrant, global financial centre. Success is not counted in days, weeks or months; it is judged by the long‑term economic growth of UK capital markets. Introduction When it first launched, the Great North Run was billed as a local fun run. It has since become one of the country’s largest races. On 1 September 2024, 60,000...

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Equity Advisory Ltd & another v HMRC [2024] UKFTT 784 ( TC) A non-party to a substantive appeal asked that specified information be redacted from the decision, which had not yet been published. The non-party was a bank, and the context of the appeal involved the bank making a payment to resolve a claim brought against it. The bank applied to the FTT for an order requiring the final decision to exclude the bank’s identity, the amount of the settlement, and any material that could enable members of the public to discern either the bank or the settlement sum, arguing that these were commercially sensitive issues. The application was made......