Legal News

See the Q& A: Does a lasting power of attorney ( LPA) allow the attorney to exercise settlor powers reserved to a donor who has lost capacity? Powers of an attorney The issue concerns a property and affairs lasting power of attorney under section 9(1)(b) of the Mental Capacity Act 2005 ( MCA 2005). With this form of LPA, the attorney may make any decision or take any step the donor could have taken about their property and affairs. Under section 9(4) MCA 2005, the authority given by an LPA is subject to: the provisions of the MCA 2005, notably section 1 (the principles) and section 4 (the duty to act in the donor’s best interests); and any conditions or restrictions specified in the instrument itself. The donor may expressly narrow or expand the attorney’s powers......

Metatron DOO v HMRC [2024] UKFTT 115 ( TC) The appellant, a company established and registered for VAT in Slovenia, challenged HMRC decisions refusing repayment of amounts it says were wrongly charged by UK suppliers. Those amounts arose when it purchased goods from UK suppliers via the e Bay platform. The appellant explained it had asked the suppliers to apply the zero rate of VAT to the goods, but that request was declined. HMRC applied to have the appeals struck out on the basis that, under rule 8(2) of The Tribunal Procedure ( First-tier Tribunal) ( Tax Chamber) Rules 2009, SI 2009/273, the FTT had no jurisdiction to consider HMRC’s refusal to provide a refund in such circumstances, and, under rule 8(3), there was no reasonable prospect of the appeals succeeding. The purchases in question were made through e Bay from UK sellers and, the...

Indeed, gathering and examining business data have long formed a core part of the government’s investigative and prosecutorial toolkit in practice. Moreover, with the surge in analysis-ready datasets in recent years, collection technologies have multiplied rapidly and grown markedly more advanced. Notably, across the last 25 years the government has escalated its use of data analytics to spot and probe suspected criminal or civil fraud offences, and thereafter to bring prosecutions. Accordingly, the 29 November 2023 announcement by US Department of Justice ( DOJ) policymakers that, for the first time, they are harnessing data analytics to proactively detect and pursue offences in foreign corruption matters was a logical evolution of investigative practice. History of data analytics in federal criminal and civil fraud enforcement The government has relied on data collection and data analysis for many years to investigate and prosecute crime as well. As early as 1914,...

Hemming v Poulton [2023] EWHC 3001 ( KB) What are the practical implications of this case? Of particular interest is the discussion of when claimants may amend their claim to add further defamation causes that would otherwise be out of time. The ruling underscores how difficult this is—the essence of libel lies in publication, not the nature of the allegations. Claims concerning discrete publications, even if repeating the same or similar accusations, will rarely, if ever, arise from ‘the same or substantially the same facts’ already in issue. The decision likewise highlights the challenge of seeking to disapply the libel limitation period under section 32A of the Limitation Act 1980. What was the background? Factual background The case has a long and complex factual and procedural history. The claims ultimately stem from allegations that the claimant, the former MP for Birmingham Yardley, assaulted an...

Barnard v Hampshire and Isle of Wight Fire and Rescue Authority [2024] EAT 12 What are the practical implications of this judgment? This decision confirms that a contractual obligation on employees to remain prepared for an operational post (eg by keeping fit and completing the required training) can amount to a genuine material factor, providing a defence to an equal pay claim. That point was, however, scarcely disputed. The contested question was the significance of evidence showing that the relevant comparators had not stayed wholly ready for such an operational role. The EAT stated that the central enquiry is whether the obligation is authentic rather than a ‘dead letter’—that is, whether it remains in force, and has not been abandoned or suspended—and whether it contributes to the pay gap. It ruled that if a comparator is no longer adhering to the...

Subsidy control The Subsidy Advice Unit has released its final report, setting out advice to the Department for Energy Security and Net Zero on its proposed Contracts for Difference for Renewables scheme (as at Allocation Round 6); see further, final report. Note— For all matters referred to the Subsidy Advice Unit under the Subsidy Control Act 2022, see the UK subsidy control—cases tracker. Upcoming dates: For dates of forthcoming UK competition developments, see the UK Competition calendar......

The firm collapsed in 2019 and, in November 2023, the UK’s financial regulator censured it after a probe found LCF had sold unregulated and misleading minibonds to investors. Last week, the Financial Conduct Authority issued a £31,800 penalty and barred a former LCF director for approving the company’s misleading financial promotions. Claimants — including joint administrators Finbarr O’ Connell, Adam Stephens, Colin Hardman and Lane Bednash of Evelyn Partners — have provided evidence indicating that LCF conducted business......

Gorbachev v Guriev [2024] EWHC 247 ( Comm) What are the practical implications of this case? This ruling carries real significance for what may become an increasingly common aspect of High Court litigation: applications for the trial judge to be appointed as a special examiner to take the evidence of witnesses overseas who are either unable to attend court to testify in person or who could face very serious consequences if they were to do so. The practical effect of the decision is most clearly and helpfully shown by comparison with another recent ruling of Mr Justice Andrew Baker in the SKAT Litigation. Read together, the decisions indicate that a court has two main options when a key witness cannot come to the jurisdiction to give trial evidence, or would face significant consequences if they tried (eg arrest). One route, preferred by Andrew Baker J in the...

Copyright owners are urging the EU’s new AI Office to act quickly so that Open AI’s Chat GPT, Dall- E and other general-purpose AI systems comply with EU copyright rules when they trawl the internet for vast quantities of material to train foundation models. The EU’s AI Act, the world’s first comprehensive AI law, sets out specific duties to ensure foundation models observe Directive ( EU) 2019/790, the Digital Single Market ( DSM) Copyright Directive. Right holders notched a win in December 2023, when EU negotiators agreed to impose obligations on foundation models to honour copyright. The European Commission’s 2021 draft had omitted such safeguards, arguing the DSM Copyright Directive already addressed them. Even so, Members of the European Parliament pressed to include these requirements, especially after Chat GPT’s surge in popularity following its November 2022 launch. Copyright protection has become a pivotal global...

Market studies CMA begins market study on infant formula market The CMA has confirmed it has begun a market study into the UK supply of infant and follow-on formula, following the release of its initial findings and a November 2023 commitment to examine this sector in far greater detail......

Laudamotion Gmb H v flightright Gmb H, Case C-474/22, ECLI- EU- C-2024-73 What are the practical implications of this case? In Laudamotion Gmb H v flightright Gmb H ( Case C-474/22; ECLI- EU- C-2024-73), the consequences for air passengers covered by Regulation ( EC) No 261/2004, the Air Passenger Rights Regulation (the ‘ Regulation’), are far-reaching. Air passengers often find themselves already informed that a flight will run three hours late. Such delays are routine within aviation and may stem from technical problems with the aeroplane, strikes, or any other cause. When, because of that known delay, an air passenger no longer wishes to travel—whether because they know they will miss their meeting, as occurred in the dispute, or for any other reason—it is perfectly ordinary for them not to go to the gate to check in; and, where the delay is flagged much sooner, not even to set...

CZQ v CZS [2023] SGHC( I) 16 What are the practical implications of this case? Staged dispute resolution clauses are now widespread, notably in sectors like construction and life sciences, and in other contracts premised on sustained collaboration between counterparties (for example, joint venture arrangements). It is natural for parties to prefer settling disagreements consensually, so far as practicable, before commencing formal arbitration, since once arbitral proceedings begin it is unlikely the wider contractual relationship can be preserved. That said, the Singapore courts have emphasised that although parties may, by contract, oblige attempts at amicable settlement (and other pre-arbitration mechanisms, such as mediation) before arbitration is started, the language must be explicit in conveying that intention. Drafters preparing multi-tier dispute resolution provisions governed by Singapore law, with Singapore as the arbitral seat, should note that any pre-arbitration steps will be treated as...

Mergers Orange/ Masmovil/ JV conditionally cleared after phase II The Commission has granted conditional approval for the planned creation of a joint set-up by Orange S. A. ( Orange) and Mas Movil ( Mas Movil) following a phase II review ( M.10896). In Spain, Orange and Mas Movil are respectively the second and fourth largest operators, active across both retail and wholesale channels for fixed broadband and mobile services. Spain counts four mobile network operators overall: Telefónica, Vodafone, Orange and Mas Movil. In parallel, multiple mobile and fixed virtual network operators depend on the infrastructure of these network operators to provide consumers with fixed and mobile telecoms services. The Commission raised concerns that the deal could curb competition in the retail markets for mobile and fixed internet services in Spain, whether these are supplied on a standalone basis or bundled...

The SRA was judged to offer 'sufficient' assurance against two benchmarks: 'well-led' and an 'effective approach to regulation'. The board has shifted to a traffic light system, grading regulators as delivering 'sufficient', 'partial' or 'insufficient' assurance. However, the LSB, the body supervising the regulation of lawyers in England and Wales, noted that its review spanned only October 2022 to May 2023. As a result, then, 'significant events for the sector' sat beyond the review window. The SRA's August 2023 intervention into Axiom Ince, together with the board's subsequent look at the steps preceding that move, are excluded. Nor did the LSB consider the possible extent of solicitors' involvement in the miscarriages of justice central to the Post Office scandal. The oversight regulator also gave no explanation for limiting the assessment to eight months rather than a full year during the period under...

What are the practical implications of this case? The ruling underlines that where a nuptial agreement was voluntarily made and its consequences were properly appreciated, one should think very carefully before seeking to attack it for want of financial disclosure and/or independent legal advice. It also confirms that, for arrangements offering minimal or no provision to the other spouse, the needs assessment is ‘needs light’, not ‘needs generously interpreted’. Had the husband taken up the wife’s open proposal, he would have secured a substantial lump sum instead of merely a life interest in a property. Parties should think twice before spurning a capital settlement where the post-nuptial agreement contains no plan for any such payment. Here, the parties’ litigation conduct was treated as supporting the ‘needs light’ stance and the award of a life interest. A cross-check, taking into account the £1.04m the husband owed the wife...

Lynch faces a California trial in March 2024 over alleged fraud linked to the US$11.7bn disposal of his software company, Autonomy, to Hewlett- Packard ( HP). The founder filed a lawsuit against the anti-corruption body on 31 January 2024, following its refusal to release all the personal data he had sought from its files, in full. An SFO spokesperson stated on 19 February 2024 that the SFO would provide certain materials, though not the entirety of them, confirming only partial disclosure. Lynch’s lawyers will assess the papers before determining whether to press ahead with the claim, scheduled for a hearing in the English High Court in April 2024. The SFO concluded that the mutual legal assistance process in Lynch’s criminal matter was not confidential. He issued a Part 8 data protection claim against the SFO, requesting every exchange between the agency and the US...

Audi AG v GQ, Case C‑334/22 What are the practical implications of this case? Producing replacement components that feature a recess intended for fitting an OEM trade mark badge can constitute trade mark infringement, within the EU, in certain circumstances. The ramifications for the spare parts sector are extensive, as it may stop them identifying goods by brand references and erode the notion that consumers deserve a choice between genuine and independent spares in an open, competitive internal market across all Member States. The ruling also seems at odds with the AG’s views in matters such as Louboutin ( Cases C‑148/21 and C‑184/21) and gives scant weight to forthcoming EU repair laws. It signals likely challenges in implementing new repair rules and the prospect of additional movements in jurisprudence and regulation once the Repair Directive comes into force in practice across the...

Shivani Mathur v HMRC [2024] UKUT 38 ( TCC) On 23 April 2015, Deutsche Bank AG ( DB) reached a negotiated resolution with the New York State Department of Financial Services concerning manipulation of interbank offered rates. As a consequence, DB was required to end the employment of several individuals. On 30 April 2015, Ms Mathur was dismissed by her employer, DB Group Services ( UK) Limited (the Employer), a company within the DB group (the Termination). Ms Mathur brought Employment Tribunal ( ET) claims against the Employer, DB, and others, alleging: harassment related to sex under the Equality Act 2010 ( Eq A 2010); direct sex discrimination under the Eq A 2010; victimisation under the Eq A 2010; whistleblowing detriments under the Employment Rights Act 1996 ( ERA 1996); and unfair dismissal under the ERA 1996. In May 2016, after a preliminary hearing but ahead of any full hearing, Ms Mathur and the...

South Oxfordshire District Council and another v Fertre [2024] EWHC 112 ( KB) What are the practical implications of this case? It is not uncommon for an appellant to err when completing an appellant’s notice. In this matter, the High Court found that, where there is substantial compliance with the essential requirements, the appeal is properly instituted and the court retains power to rectify the error. Put another way, so long as the core formalities are met in substance, the appeal is validly brought despite a defect. The mistake here was serious and fundamental: the notice identified the wrong respondent. Even so, the two authorities had integrated their arrangements, sharing premises, a housing officer, a legal department and email accounts. The same review officer handled reviews under Part 7 of the Housing Act 1996 ( HA 1996) for both authorities and used a single email...

A cohort of twelve, among them AXA XL Syndicate Ltd and Brit UW Ltd, stated in a defence lodged at England’s High Court on 14 February 2024 that they bear no responsibility for the entire amount sought by WRBC Corp Member Ltd ( WRBC). They maintain that some losses fall within the ambit of the reinsurance treaties and that they have remitted approximately US$26.6m in payments to WRBC. However, the defence asserts that these payments exhaust the AXA/ Brit defendants’ portion of the layer 1 limits under the reinsurance treaties. It is further averred that the claimant has no entitlement to the indemnity demanded in respect of the contingency losses and/or the loss settlements. Validus Reinsurance Ltd, also named by WRBC, submitted a separate defence on 14 February 2024......