Legal News

Inter Digital Technology Corp and others v One Plus Technology ( Shenzhen) Co and others [2023] EWCA Civ 166 What are the practical implications of this case? As is long recognised, standard-essential patents must be offered under clear, Fair, Reasonable and Non- Discriminatory ( FRAND) terms. In these matters, once technical trials determine, following detailed evidence, that one or more patents are truly essential and valid, a subsequent FRAND trial sets the conditions of a FRAND licence. As part of that process, and as confirmed by the Supreme Court in Unwired Planet v Huawei [2020] UKSC 37, the claimant’s existing licences are carefully examined to identify FRAND terms. Accordingly, SEP infringement actions in the courts of England and Wales commonly see defendants routinely pursuing pre-action disclosure of prior SEP licensing agreements. Given the highly confidential nature of those agreements, the court typically...

Mark Mitchell and Paul Bell v HMRC [2023] EWCA Civ 261 The case arose after HMRC assessed two companies for input tax because they were unable to show they had ever received the particular supplies on which the input tax had been claimed. The companies then went into liquidation, and HMRC issued personal liability notices of roughly £6m to the two directors, Paul Bell ( Bell) and Mark Mitchell ( Mitchell). A statutory review upheld HMRC’s assessment, and the First-tier Tax Tribunal ( FTT) subsequently directed that the two appeals lodged by Mitchell and Bell should be heard together. A complication was that evidence relied upon by HMRC had been provided by Mr Mitchell and was obtained by HMRC during an enquiry into Mr Mitchell’s own tax affairs. Contending that the documents were not relevant to the dispute, Mr Mitchell declined to share that...

Asset House Piccadilly Limited v HMRC [2023] UKFTT 279 ( TC) HMRC had served information notices in connection with enquiries into certain aspects of the taxpayer’s corporation tax returns, and additionally on the basis of HMRC’s suspicion that the company acted as an ‘enabler’ of arrangements said to be abusive. The company brought strike-out applications in two separate appeals against those notices. The HMRC case-handlers responsible for the appeals were not admitted solicitors, nor were they under a solicitor’s supervision at any material time. The strike-out bids contended that, as a result, they were effectively contravening LSA 2007, s 14(1) by undertaking a reserved legal activity, namely conducting litigation before the Tribunal in these appeals. In substance, the strike-out requests sought to exclude HMRC from the proceedings altogether. The FTT concluded that HMRC officers are part of HMRC......

Hambling and another v Wakerly and another [2023] EWHC 343 ( Ch) What are the practical implications of this case? Despite the atypical and unconventional phrasing of the right of way in this dispute, the ruling remains of real guidance. It demonstrates how limited a role on-the-ground and locational realities may ultimately play in construing an easement where, on a strictly textual reading, the clause is considered adequately precise and definitive, so that practicality yields to the clarity of the written grant, as the text requires. What are the principles involved? The settled approach to interpreting a grant of an express easement requires the language to be evaluated against the matrix of facts and circumstances known, or taken to be known, to the original parties at the date of creation. Those surrounding matters may encompass the physical state and configuration of the land when the grant was made, and the...

Power and another v Shah [2023] EWCA Civ 239 What are the practical implications of this case? PWA 1996 sets out a statutory framework permitting activity in the vicinity of, or upon, boundary lines. Through its protections, a Building Owner may carry out operations that would, but for the Act, amount to trespass or a private nuisance. An Adjoining Owner is entitled to compensation for any works duly authorised. What works are permitted, and the level of compensation due, are determined by surveyors and recorded in an Award. To rely on PWA 1996, the Building Owner must serve notice. If written agreement to the proposals is not provided, a dispute is treated as having arisen. That dispute then engages the Award process. The scope of PWA 1996 is confined. An Adjoining Owner has no power to set the mechanism in motion alone. However...

The surge in this field arises from several converging factors: the expansion of the funding market, shifts within the legal system of England and Wales, and the influence of US ‘class action’ style litigation. Group actions are expected to keep growing in England and Wales and to span a broad range of legal areas. The rising appetite for product liability actions highlights the scope for numerous claims that have not yet been pursued. This is a welcome development for individuals harmed by large corporations, who can utilise collective actions to obtain justice and compensation more readily. Causes of action in product liability Product liability is the area of law holding organisations involved in supplying products—often to members of the public—responsible for harm or loss caused by those products. The three principal bases that commonly support a product liability claim are: ...

FGX v Gaunt [2023] EWHC 419 ( KB) What are the practical implications of this case? The level of damages will not astonish media law specialists, who have been resolving comparable actions in this range for many years now. A scarcity of authority exists because these disputes are typically compromised at an early juncture (a defendant being on a hiding to nothing and courting serious and severe reputational damage by letting a claimant proceed to trial) or, alternatively, potential defendants have not been chased owing to worries about recoverability. FGX is a welcome decision, likely to discourage would‑be offenders, while giving claimant solicitors a citation to leverage in settlement discussions. Even so, practitioners should remember that these claims turn on their facts. In FGX, the court applied the eggshell‑skull principle: the consequences of image‑based abuse can differ markedly between claimants. In this...

Re Sova Capital Ltd (company number 04621383) (in special administration) [2023] EWHC 452 ( Ch), [2023] All ER ( D) 24 ( Mar) Background to Sova and the Special Administration Sova, authorised by the Financial Conduct Authority ( FCA), operated as an investment brokerage firm. It acted for institutional counterparties, with its trading largely focused on the Russian market. Following the upheaval in markets triggered by Russia’s invasion of Ukraine, the firm encountered acute liquidity pressures, prompting its directors to seek an English Court order placing it into special administration under the Investment Bank Special Administration Regulations 2011, SI 2011/245 (the IBSA Regulations). The business oversaw assets totalling several billions of pounds sterling across its client assets sourcebook ( CASS) structures—covering client money and custody assets—as well as its own house book. The IBSA Regulations were introduced to tailor the insolvency framework for...

Blake and others v Fox [2022] EWHC 3542 ( KB) What are the practical implications of this case? The court stressed that, in defamation, the central question is the meaning conveyed by the words complained of; the speaker’s intention does not matter. Here, the judge drew a clear line between ‘opinion’ and ‘mere abuse’, finding that describing someone as a racist is an opinion (albeit forcefully put), whereas calling someone a paedophile is not. Whether a statement is opinion is crucial if a party seeks to invoke the defence of honestly held opinion, and it is often challenging to separate opinion from a (false) allegation. The court also underlined that truly extrinsic material cannot be relied upon to prove that a publication was, or contained, an expression of opinion. That assessment must be derived from the intrinsic material within the publication itself,...

The excitement surrounding NFTs has persisted for several years. At its simplest, an NFT is a distinct, verifiable digital asset. A purchaser of an NFT possesses a token that links to a digital file of some variety (most often an image file in practice). Although the visual component of an NFT can be duplicated and shared with ease, the holder in effect owns a digital certificate (conferred by that token) which is logged on a public blockchain (so it cannot be readily changed or altered by third parties). The associated smart contract for the NFT sets out some of the wider rights a holder might enjoy under that contractual framework. Many organisations have treated NFTs as a means to engage and communicate with their ecosystem or community. In that sense, and for certain initiatives, holding the NFT can also provide extra...

Good v Revenue and Customs Commissioners [2023] EWCA Civ 114 What are the practical implications of this case? This decision offers clear, practical direction on how the phrase ‘entitled to’ should be understood across income tax provisions, and on the purposive reading of those rules, making it of broad relevance to all tax advisers. It affirms that the authorities recognise a wider principle: subject to the wording of the statute and the context of the payments, an individual can be charged to tax on sums paid to another if that individual derives a benefit from those sums. That conclusion is unaffected by an irrevocable assignment of the payments. It did not matter that the parties never intended the rights to return to Mr Good; it was enough that, as a matter of contract, they could have done so. The case also sheds further light on...

Re Mizen Design/ Build Ltd (in company voluntary arrangement); Newlon Housing Trust v Mizen Design/ Build Ltd [2023] EWHC 127 ( Ch) What are the practical implications of this case? In this matter, two creditors from different classes challenged the CVA, with one objection succeeding and the other failing, and they had adopted contrasting positions at the creditors’ meeting. As such, the decision offers a clear demonstration of how various irregularities are assessed, with particular emphasis on materiality. The proposal’s terms are recorded in significant detail, helping future comparisons on similar facts. In addition, paragraphs [15]–[51] of the judgment set out, in depth, the principles applicable to material irregularity and unfair prejudice. What was the background? This dispute concerned a CVA approved at a creditors’ meeting on 19 May 2022. The proposal indicated that, unless adopted, Mizen was highly likely to enter...

How to witness and attest a deed under the Law of Property ( Miscellaneous Provisions) Act 1989 ( Euro Securities & Finance v Barrett) Euro Securities & Finance Ltd v Barrett and others [2023] EWHC 51 ( Ch) What are the practical implications of this case? The safest route to prevent disputes over a deed’s validity is: all principal signatories execute at the same time and in the same location; any witness should be a non-party to the deed and observe the signatures physically, in person; and each witness should attest, separately, every signature they observed, doing so straightaway while remaining in the signatories’ presence. Each of these points ought to be documented in writing. That said, the judge in Euro Securities considered that the LP( MP) A 1989 may afford parties greater latitude. Although much of the discussion was obiter, in essence the judge...

The Joint Committee on Statutory Instruments ( JCSI) The Joint Committee on Statutory Instruments ( JCSI) has issued its twenty-seventh report for the 2022—2023 Session, reviewing statutory instruments ( SIs) made under powers conferred by an Act of Parliament. Instruments not presented to Parliament fall within the JCSI’s scope, though local instruments and those produced by devolved administrations are not examined by the JCSI, unless they......

Identified issues with the NSIP process The Action Plan observes that, although the current consenting route for Nationally Significant Infrastructure Projects ( NSIPs) under the Planning Act 2008 ( PA 2008) has served the UK effectively, the demands and challenges it must meet are evolving. The volume and sophistication of schemes is rising, and cumulative impacts—especially within offshore wind and the electricity networks sector—call for new remedies. There has been growth in the average time taken to decide whether to award development consent, growth in the quantity of documentation produced throughout the process, and growth in the tally of projects exposed to legal challenge. Proposed actions Against that backdrop, the government aims for the NSIP consenting system to deliver sound decisions, accelerate application handling, secure better environmental outcomes, treat communities more fairly, and be stronger in terms of resourcing. To achieve this, the Action Plan...

Durose & others v Tagco BV & others [2022] EWHC 3000 ( Ch) Summary of the case Judge Bird held that the petitioners had entered a commercial arrangement whose terms were tightly controlled by a comprehensive suite of expertly drafted contracts and documents. On the evidence, he concluded the private equity investor had at all times adhered to the agreed terms. In those circumstances, it was fair and just to hold the petitioners to the legal agreements, and they were not entitled to protest that their treatment was unfair. The parties’ relationship was purely commercial, with all material dealings conducted through solicitors. The judge was satisfied that every signatory to the investment agreements had the opportunity to review the documents, contribute to their content and obtain legal advice on them. He found the petitioners knew this was not a risk‑free endeavour and that an...

Updated on 28 February 2023 Information on the ballot procedure was made public 13 months after the Youth Mobility Scheme ( YMS) was widened to include citizens of India and Iceland on 1 January 2023 (via the Statement of Changes in Immigration Rules, HC 617). Under the YMS, 3,000 places per year are allocated to Indian nationals. This expansion was made further to the UK/ Indian Migration and Mobility Partnership, signed in May 2021. The requirements are set out on a new guidance webpage......

Anron Bunkering DMCC v Glencore Energy UK Ltd [2023] EWHC 295 ( Comm) The underlying claim, brought by the claimant, arose out of two contracts for the sale of unleaded petrol. The claimant aimed to recoup various advance sums it had paid under the two sale contracts on the basis that the defendant had not delivered the agreed amount of petrol, failing to supply the correct quantity. It argued that the purported shortfall in delivery meant the consideration for which the advances were paid had failed, giving rise to a right to restitution for unjust enrichment. The defendant sought summary dismissal of the claim on the basis that it was time-barred, because the alleged non-delivery of petrol occurred more than six years before the claim was issued. The judge confirmed that unjust enrichment claims are ‘founded on simple contract’ for the purposes of section 5 of the...

Market Manipulation Cryptocurrencies have triggered extensive discussion in recent times indeed. Debate has largely centred on their valuation or how these assets should be regulated today. However, scrutiny of market manipulation is essential, especially the behaviour of digital asset trading platforms themselves. FTX’s late-2022 implosion thrust crypto and market abuse squarely into view for the wider public today. At one stage in its three-year life, it stood as the world’s third-largest exchange by trading volume at peak. Today, FTX’s founder and chief executive Sam Bankman- Fried faces charges for conspiracies to commit commodities fraud and securities fraud, plus conspiring to defraud the United States and to violate campaign finance laws. These counts arise from claims he cheated investors of US$1.8bn (£1.5bn) in total. Since last November, FTX has been under Chapter 11 proceedings in the US courts. The sheer scale and profile of FTX’s...

Fearn v The Trustees of the Tate Gallery [2023] UKSC 4 What are the practical implications of this case? The Supreme Court has confirmed that visual intrusion can constitute a nuisance, though simple overlooking on its own does not. While eye-catching, the ruling is unlikely to trigger a deluge of neighbour disputes about being watched. The court contemplated that only a marked and sustained degree of visual interference would cross the threshold. As Leggatt LJ explained at [103], instances where land is put to an unusual use that causes visual intrusion of sufficient duration and intensity to found a nuisance claim are expected to be uncommon. It also remains the law that merely putting up a building or structure that looks over another parcel of land, without more, does not amount to a nuisance. Regarding grievances from occupants of highly glazed, tall...