Legal News

In this issue: Key DR developments Claims and remedies Cross border disputes Applications Evidence and disclosure New content Dates for your diary Useful information Daily and weekly news alerts Key DR developments Court and the legal profession Both principal political parties set out proposals in their manifestos for the general election to ease the escalating backlog in the nation’s courts, yet practitioners in England and Wales still have a few more items on their wish list for the incoming administration and would like them considered. For more detail, see Law360 Analysis: Lawyers set out wishlist for next UK government. Claims and remedies Contractual breach and remedies—misrepresentation and contractual construction In claims arising out of the sales of fixed interest rate business loans before 2010, Mr Justice Zacaroli, in Farol Holdings Ltd v Clydesdale Bank plc and National Australia Bank [2024] EWHC 593 ( Ch) (a judgment delivered in March), addressed whether: (i) Clydesdale was entitled to impose break costs upon...

Solicitors acting for the publicly funded broadcaster told the Court of Appeal that a previous judgment rested on a mistaken reading of the deeds that underpin the BBC Pension Scheme. The corporation aims to curb escalating costs of running the scheme by trimming the benefits members will ultimately obtain on future accruals. BBC members of staff initially mounted a High Court claim, asserting that the deeds supporting the scheme, dating to 1947, permit alterations to benefit structures only where members’ interests are not affected. Judge Adam Johnson, who presided over the matter, found in favour of scheme members in July 2023 after hearing the case in the High Court......

Assange Assange was freed from a London prison on 24 June 2024 to enter a guilty plea for breaching the Espionage Act, having spent five years behind bars while his lawyers opposed his prosecution in the US. The agreement lands a fortnight before a planned final appeal in his protracted fight, granted after he won the right to question assurances from American authorities that he would not face discrimination at trial. Rebecca Niblock, a criminal litigation partner at Kingsley Napley LLP who specialises in extradition, suggested the High Court’s decision to permit a new appeal likely added pressure to strike a US deal, noting a win for the US in London was far from certain. Aged 52, he is expected to return to Australia after signalling he will plead to a single felony count of conspiring with former US Army...

Chubb European Group SE told the High Court on 7 June 2024 that the lessors are not entitled to compensation because the policy excludes war-related claims, even if the aircraft have been destroyed. The Irish entities are subsidiaries of Aircastle Ltd, a US commercial jet lessor. In its recently filed defence, Chubb argued that, if the Russian aircraft and engines are considered lost in any meaningful way, such loss could only stem from a peril caught by the reinsurance exclusion. Chubb also said that any recovery for “total loss” under the reinsurance would require the lessors to demonstrate they have been irretrievably deprived of possession of the aircraft, which they have not established. The lessors alleged in June 2023 that two Boeing 747 freighters were on lease to Air Bridge Cargo Airlines LLC when Russia invaded Ukraine in February 2022......

Hyde and another (in their capacity as joint liquidators of Radarbeam Ltd, a company in liquidation) v Todd [2024] EWHC 1423 ( Ch) What are the practical implications of this case? The decision sets out a concise overview of the principles a judge applies when considering an application for summary judgment on a contribution claim under IA 1986, s 214, based on alleged ‘wrongful trading’. The court clarified that, for a s 214 claim to succeed, the applicant must establish that, at a point before the company’s winding up began, the director knew, or ought to have concluded, that there was no reasonable prospect of the company avoiding insolvent liquidation or administration. If that state of knowledge is proven, the applicant must then show that the company suffered loss due to the director’s failure to place the company into insolvent...

Insurtech UK Insurtech UK urged the party that secures victory on 4 July 2024 to shape a regulatory landscape that caters to the needs and structures of insurance technology firms in the UK as they start and scale up. The UK trade association for insurtech startups also sought measures to stimulate additional investment in the insurance technology sector—such as broadening certain venture capital investment schemes—within a series of policy proposals for the future government focused on regulation and expanding access......

Thorney Golf Centre Ltd v (1) Reed, (2) Reed [2024] EAT 96 What are the practical implications of this judgment? This case involved a very substantial delay—over two years—between the respondent requesting an extension of time to file its response and the employment tribunal’s hearing to decide that request. In his judgment, His Honour Judge Auerbach stated that the tribunal should have concentrated chiefly on the period up to the submission of the response and the extension application, and on any prejudice arising from that specific delay, rather than treating the respondent as accountable for the entire lapse until the tribunal hearing took place... Practitioners should note this clarification of the Kwik Save test when advancing or opposing applications for additional time. The judgment also addresses the degree to which the respondent could take part in the hearing of the substantive claim once its...

Ryan initiated a judicial review against the DPC regarding its probe into Google and the ‘real-time bidding’ system. This mechanism underpins the online advertising ecosystem, which finances much of the modern internet. ‘ The DPC’s half-decade refusal to investigate Google’s massive data breach is inexplicable’, Ryan said publicly in a statement issued ahead of that hearing last year. ‘ We are asking the Irish High Court to formally order the DPC to finally do its job’, he said at the time. ‘ Having worked in the [real-time bidding] industry, I know how dangerous these data are when placed in the wrong hands’......

State aid General Court dismisses further appeals regarding Spanish aid for the acquisition of ships The General Court delivered its judgment in Case T‑1/14, Aluminios Cortizo and Cortizo Cartera v Commission, concerning proceedings brought against the Commission’s decision of 17 July 2013. That decision concluded that a Spanish scheme for purchasing ships, which relied on leasing and financing via tax relief, involved unlawful State aid ( SA.21233) (the Commission’s 2013 decision). The General Court rejected the action. Under that arrangement, a shipowner could have a new vessel constructed with a rebate applied to the shipyard’s price. Yet, to benefit from the reduced price (after deduction of the rebate), the shipping company had to commit to acquiring the vessel not straight from the shipyard but through an economic interest grouping ( EIG), a vehicle constituted under Spanish law and set up by a bank......

Employment Appeal Judge Timothy Kerr formally confirmed an earlier decision that the move by Timothy Clayson, Andrew Woolman and David Griffith‑ Jones KC from serving as part‑time recorders to sitting as circuit judges amounted to a distinct judicial post. He held this allowed the ministry to enrol them in a fresh statutory pension arrangement and to refuse entry to the earlier, more advantageous scheme. “ I do not consider the judge’s analysis defective,” the appeal judge stated. “ The claimants’ resentment is easy to appreciate, yet I consider the judge correctly concluded that the way they were treated regarding pension rights was…not attributable to their prior part‑time work as recorders before becoming circuit judges.” Under the Judicial Pensions and Recruitment Act 1993, where a recorder stopped holding the former office and undertook a new judicial appointment after the close of March 1995, they would be...

Statement regarding High Court Judgments of 20 June 2024 in Reddit Incorporated and Coimisiún na Meá;n and Tumblr and Coimisiú;n na Meán We welcome the Court’s judgment and its affirmation of our designation of Reddit and Tumblr as Video- Sharing Platform Services. We are progressing our draft Online Safety Code and anticipate having it in place later this year, as an element of our overall Online Safety Framework, as planned. We remain dedicated to deploying our full suite of powers to enhance online safety for people in Ireland and throughout Europe. This piece was originally published by MLex, a Lexis Nexis® company, on 25 June 2024, and appears here with permission. Visit MLex for further details and to request a free trial......

Abbot v The Information Commissioner [2024] UKFTT 478 ( GRC) What are the practical implications of this case? This ruling mirrors the approach in other recent decisions on the operation of the exception to disclosure under EIR 2004, SI 2004/3391, reg 12(5)(b), again stressing the considerable weight that legal professional privilege carries within our justice system. It therefore highlights the obstacles applicants will encounter when attempting to access documents protected by legal professional privilege, and that only ‘special or unusual’ circumstances are likely to be sufficient for the public interest in disclosure to prevail over the interest in preserving legal professional privilege. That said, legal professional privilege was not the Tribunal’s only concern when concluding that EIR 2004, SI 2004/3391, reg 12(5)(b) applied. The Tribunal indicated that the exception would have been engaged even without legal professional privilege, particularly because releasing the material would not have added...

Mergers The CMA has opened its phase 1 inquiry into the proposed purchase by Scanpole Limited of Calders & Grandidge ( Boston) Limited—see the case page Note— For a list of all active mergers before the CMA, see the UK mergers—ongoing cases tracker Upcoming dates— For schedules of forthcoming UK competition developments, consult the UK Competition calendar......

Queenscourt Ltd v HMRC [2024] UKFTT 460 ( TC) Queenscourt supplied takeaway meal combinations featuring hot chicken, fries and a cold dipping pot, with some bundles also offering other chilled items such as cookies and yoghurts. The business had originally accounted for each meal deal as a single standard-rated supply, but subsequently revised its position, concluding that the cold elements, including the dip pots, were distinct zero-rated supplies. HMRC accepted an initial error correction without querying whether the dip pots constituted separate supplies. Later, Queenscourt filed a further error correction covering different VAT periods. On that occasion, HMRC disputed the inclusion of the dip pots and maintained they were an ancillary component of a single supply of hot food, and so shared the same VAT liability (ie standard-rated). That challenge also prompted a review of the VAT repayment arising from the first error...

See Precedent: Ireland— Solicitor’s statutory declaration regarding section 14 of the Mediation Act 2017 ( Ireland)...

BR v SN [2024] EWHC 1512 ( Fam) What are the practical implications of this case? This decision assessed the legal position on Hadkinson applications, in the specific setting of Ch A 1989 proceedings. Hadkinson v Hadkinson [1952] 2 All ER 567 remains the primary authority; as recognised in Mubarak v Mubarak [2004] EWHC 1158 ( Fam), [2004] 2 FLR 932 and endorsed by the Court of Appeal in de Gafforj v de Gafforj [2018] EWCA Civ 2070, [2018] All ER ( D) 01 ( Oct), the criteria for a Hadkinson order require an applicant to demonstrate: the respondent is in contempt the contempt is intentional and continuing as a consequence, there is an impediment to the course of justice there is no other realistic and effective remedy the order is proportionate to the issue and does not go beyond what is...

Eternity Sky Investments Ltd v Xiaomin Zhang [2024] EWCA Civ 630 What are the practical implications of this case? The Court of Appeal reiterated English law’s established stance (mirrored in Hong Kong, as noted in Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111) that public policy is a narrowly drawn, limited exception, and that, in nearly all situations, New York Convention awards would be enforced. The court also made clear that this policy reasoning should likewise extend to disputes where individuals are parties to arbitration agreements—save to the extent that statute provides to the contrary......

The British Council v Beldica [2024] EAT 92 On 24 June 2024, the EAT determined that the Employment Tribunal’s ( ET) ruling allowing human resources manager Ana- Maria Beldica to have her case against her employer, the British Council, heard in the UK had to be set aside because it relied on ‘hypothetical’ reasoning. The tribunal at first instance had endorsed Beldica’s position that she could bring her claim before the UK’s courts, notwithstanding that she worked for the British Council in Dubai, on the basis that there was a risk she would not receive a fair trial in the UAE. That conclusion was founded on the suggestion that the British Council might advance a plea of state immunity which, in turn, would deprive her of a fair hearing......

Boohene & Ors v The Royal Parks Ltd [2024] EWCA Civ 583 On 24 May 2024, the Court of Appeal delivered a significant ruling on the reach of contract worker discrimination. Sixteen contract workers providing services for The Royal Parks ( TRP) under an agreement between TRP and Vinci, a major outsourcing company, brought the claim. The claimants said TRP applied a provision, criterion or practice ( PCP) of paying its own employees the London Living Wage ( LLW), yet did not require its contract workers to receive the LLW. They maintained that TRP’s stance favoured its own staff over contractors. They alleged this was indirectly discriminatory on the ground of race, as advanced in their case. The Court of Appeal dismissed the workers’ appeal; more critically, it also decided that a claim for contract worker discrimination cannot be advanced where the alleged...

Philip Freeman Mobile Welders Ltd v Pensions Regulator [2024] UKFTT 91 ( GRC) What are the practical implications of this case? This ruling underscores the detailed and credible proof required to displace the postal rule in IA 1978, s 7, an issue many practitioners will encounter from time to time. In this instance, the presumption was overcome, although the court stressed that the circumstances were quite out of the ordinary. The decision offers practical guidance on the level of specificity the court will demand before concluding that documents dispatched by post were not delivered. The Company adduced evidence of its in-office process for receiving mail, alongside earlier difficulties arising from a shared postal address. It explained that neighbouring businesses frequently received each other’s post, to such an extent that complaints had been made to Royal Mail. The Company had also preserved copies of letters wrongly sent to it and...