Legal News

Chadwick v R H Ovenden Ltd and another [2022] EWHC 1701 ( QB) What are the practical implications of this case? This ruling grappled with a host of thorny and complex questions arising from workplace accident claims. Owing to the breadth of the analysis, it stands as valuable reading for any practitioner dealing with personal injury litigation. Both the claimant and the second defendant maintained that they were working as employees. Consequently, the decision sets out a clear synthesis of the key, frequently applied criteria for distinguishing employment from self-employment. Because the first defendant disputed the existence of a duty of care, the judge examined in depth the circumstances in which a party who is not the employer may nonetheless incur liability by exercising a measure of control over the place of work. The court assessed the issues bearing on whether negligence had resulted in a...

TV Harrison CIC v Leeds City Council [2022] EWHC 1675 ( Admin) What are the practical implications of this case? First, the ruling underscores the centrality of the development plan, and the obligation to comply with the strict statutory duties to have regard to it under section 70(2) of the Town and Country Planning Act 1990 ( TCPA 1990) and section 38(6) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004). Allocation of a site for housing does not dispense with the continuing requirement to properly assess all particularly pertinent and applicable development plan policies in the round. Secondly, it confirms that reasons are generally unnecessary separately where members adopt the recommendation contained in an officers’ report, in such circumstances. The judge held there was no duty on the relevant committee to give additional reasons where: a) members accepted the...

It is common for internationally based families planning a move to the UK to wish to accompany that transition with their existing nannies. There are sound reasons for this choice. Many such carers have supported the household for years and are regarded as loyal, dependable members of the team, something especially valuable for prominent families. Continuity of care can also be crucial for young children navigating a new country, giving them a familiar person to converse with, particularly where English is not their first language. As a result, advisers frequently face queries about whether any alternative immigration pathways exist to enable household staff, notably nannies, to live in the UK on a long-term footing. Up until changes to the UK Immigration Rules in December 2020, the response to that question was, in most cases, no. That position has typically left families with limited...

Breaches of UK trade and financial sanctions are pursued through criminal or civil action. Since 15 June 2022, civil enforcement of UK financial sanctions operates on a strict liability footing, meaning liability can arise even without knowledge or reasonable suspicion of a breach. Businesses should therefore scrutinise their sanctions compliance frameworks to ensure robust processes and procedures exist to spot and reduce sanctions risk. The move to strict liability reflects a deliberate step by HM Treasury and OFSI to align the UK approach, where appropriate, with the tougher US model. OFSI OFSI may now publish information about financial sanctions breaches even when no monetary penalty is imposed, including naming the persons responsible. This power is used only where a breach is found and there is a significant compliance lesson for industry, with an opportunity to make...

Hymans Robertson LLP Hymans Robertson LLP stated that numerous providers still face significant effort and resource demands to overhaul their practices and processes in order to meet the FCA’s consumer duty expectations. It also observed that many pension providers are still absorbing the extent of changes needed to satisfy its standards, warning firms not to misjudge the time required to prepare for the incoming rules. The FCA is anticipated to set out its definitive rules, with the implementation date, before the close of July 2022. The draft package sets out a wide suite of obligations for banks, insurers and other financial sector firms to make sure clients are not exposed to financial detriment. Karen Brolly, head of financial services at Hymans Robertson, said the new regime for the sector......

Mayor and Burgesses of the Tower Hamlets London Borough Council v Khan [2022] EWCA Civ 831 What are the practical implications of this case? Lease agreements often include provisions enabling landlords to reclaim legal costs incurred ‘in contemplation of’ or ‘incidental to’ forfeiture proceedings. Attempts to recover rent and service charge arrears are frequently brought in forums where costs are generally not recoverable, such as the FTT and the County Court Small Claims Track. Landlords therefore lean on these provisions to assert that costs are contractually recoverable because proceedings to recover rent/service charge arrears were issued ‘in contemplation of’ or ‘incidental to’ prospective forfeiture proceedings. The Court of Appeal’s decision curtails the range of what will be treated as ‘incidental to the preparation and service’ of a section 146 notice, yet gives no guidance on what costs are incurred ‘in...

Curtiss and others v Zurich Insurance plc [2022] EWHC 1514 What are the practical implications of this case? This ruling provides practical direction on when it is appropriate to pursue an order to strike out a trial witness statement for breaches of CPR PD 57AC, and the manner in which such an application should be advanced. For context, paragraph 5 of CPR PD 57AC underlines that the court retains its complete case management powers and full suite of sanctions, and may—either on application or of its own accord—strike out part or the entirety of a trial witness statement. Recent authorities have offered guidance on timing and proportionality: for example, in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 ( TCC) at [49], Mrs Justice O’ Farrell noted that although an application may properly be brought, it must not give rise to...

Gama Aviation ( UK) Ltd and Another v MWWMMWM Ltd [2022] EWHC 1191 ( Comm) What are the practical implications of this case? Key takeaways for practitioners include: NOM clauses: A party’s contractual rights and duties can be altered not only by variation but also by novation or termination. Anyone aiming to prevent such informal changes should adopt wording that makes this intention explicitly clear. contractual rights to terminate: Even where a clause grants a unilateral right to terminate by written notice, this may not stop the contract being discharged by an informal novation; whether it does will turn on the clause’s wording and the surrounding context. on covenants: As only reasons that genuinely influenced a party’s mind can justify the reasonableness of a refusal of consent, a party withholding consent should record its reasons at the time. The decision also supports...

Shazam Productions Ltd v Only Fools The Dining Experience Ltd and others [2022] EWHC 1379 ( IPEC) What are the practical implications of this case? This ruling marks a significant first: a UK court has recognised that copyright can inhere in a character, signalling a potential broadening of what qualifies as a protectable work under UK copyright law. The ramifications could be felt widely across sectors that draw on famous characters—advertisers, computer game creators and event organisers—as well as the more established creative spheres of books, plays, musicals, film and television. Prospective users of well-known characters may therefore be more cautious about the risk of infringement, while rights holders may point to the judgment to support claims for increased licensing revenue. It remains uncertain whether the defendants will seek to appeal; the matter was transferred from the High Court to the IPEC in 2020 to...

Litigation friend entitled to recover ATE premium from the child’s damages ( X (by way of litigation friend) v H& M Hennes and another) X (by way of litigation friend) v H& M Hennes and another [2022] Lexis Citation 102 What are the practical implications of this case? It is hard to envisage many situations where moving away from the baseline of proportionality and reasonableness would be justified (save, perhaps, where BTE exists). Notably, the issue that His Honour Justice Lethem considered to be of general significance has yet to receive attention from a higher court. Although the judge did not expressly decide the point, allowing a 44% deduction from damages strongly implies there is no barrier to exceeding the 25% referenced in CPR 21.12(1A)(7), and that the court may “order otherwise” where recovery of an ATE premium is in issue. That debate may, however, be...

What are the practical implications of this case? This was a renewed bid for permission to pursue a judicial review of Manchester City Council’s decision to grant planning permission for replacing a car park with a 55‑storey tower including student accommodation. As with all rulings at the permission stage, the judgment does not create a precedent: the court was simply deciding whether any ground met the arguability threshold for the claim to proceed to a substantive hearing. Even so, it raises notable points on deliverability and consultation. Deliverability: the court held that the presence of private rights that may need to be bought out—such as rights of light, a right of way over the development land or, as here, a right to park in the car park—does not render a scheme undeliverable. These are questions of commercial practicality and do not undermine...

Exchequer Solutions Ltd v HMRC [2022] UKFTT ( TC) 181 Exchange Solutions Ltd ( ESL) operated as an umbrella company, employing individual workers under an overarching—or ‘umbrella’—employment contract and making their services available to agencies, which then placed them with construction industry contractors. The core question was whether ESL’s workers were engaged continuously under a single, overarching employment contract spanning all assignments, or instead whether each assignment was governed by its own agreement. At its heart, the dispute turned on the contractual structure for the workers’ engagements. That distinction was critical. With an overarching contract, every location would count as a temporary workplace and travel costs could be reimbursed free of tax. By contrast, if each job sat under a separate contract, each site would be a permanent workplace and PAYE and National Insurance contributions......

The All- Party Parliamentary Group ( APPG) on Democracy and the Constitution has released a report which sets out the findings from its investigation into how the actions of the executive have influenced the constitutional position of the independent judiciary since 2016. The publication was supported financially by the Joseph Rowntree Reform Trust and the Institute......

The Tower One St George Wharf Ltd v HMRC [2022] UKFTT 154 ( TC) A corporate group was progressing a site for residential use as a development project. The concluding phase involved a 50‑storey tower, which they planned to place into a special purpose vehicle ( SPV) to ring‑fence exposure to risk and potential liabilities, and to secure greater financial flexibility for the project as a whole. After consulting their tax advisers, the group executed a sequence of transactions on the very same day intended to step up the tax cost of the scheme, so the SPV would be treated as acquiring it at market value, with no tax liabilities arising along the chain overall. In outline, the company that owned the property granted a 999‑year lease to another group entity, B64. The shares in B64 were then purchased by......

Beard v HMRC [2022] UKFTT 129 ( TC) This appeal addresses the proper UK tax treatment of distributions made by a Jersey company from its share premium account. The company was a publicly listed limited company incorporated in Jersey, domiciled in Switzerland, and with its head office also in Switzerland. It was not resident in the UK for tax purposes. HMRC issued a closure notice assessing the appellant, Mr Beard, to income tax on a series of such distributions he received from the company over a number of years. Mr Beard appealed, arguing that the payments were capital in nature and therefore fell outside the UK charge to income tax. The FTT had to determine whether the distributions were to be treated as dividends for the purposes of section 402 of the Income Tax ( Trading and ......

Banco Santander, SA v JAC and MCPR ( Case C-410/20) The Court of Justice of the European Union ( CJEU) has issued its ruling in Banco Santander, SA v JAC and MCPR ( Case C-410/20). That decision stems from a request for a preliminary reference addressing, among other points, how to interpret the EU Bank Recovery and Resolution Directive 2014/59/ EU ( EU BRRD). The reference arose from a dispute between investors in Banco Popular Español SA ( Banco Popular) and Banco Santander SA, which had succeeded to Banco Popular, concerning Santander’s potential liability for inaccuracies in the Banco Popular prospectus prepared under the Prospectus Directive 2003/71/ EC, on the strength of which those investors acquired Banco Popular shares. The CJEU determined that investors in Banco Popular are barred from bringing proceedings for liability against Banco Santander under Article 6 of the...

Armstead v Royal Sun Alliance Insurance Company Ltd [2022] EWCA Civ 497 What are the practical implications of this case? The Court of Appeal considered how far a tortfeasor is responsible in bailment and tort for an owner’s loss of use where hired equipment is damaged, in proceedings brought by the hirer. It ruled that, although a bailee may reclaim the cost of repairing the hired equipment from a negligent tortfeasor, the bailee cannot recover sums fixed by contract with the bailor (the hire company) for the bailor’s loss of use. Because the item involved was a car hired under a credit hire insurance policy, the decision is naturally pertinent to vehicle hire arrangements in general and to credit hire insurance claims in particular. Yet the principles explored, applied and developed in the judgment, particularly on pure economic loss and the scope of the duty of...

Changtel Solutions UK Ltd ( In Liquidation) and others v G4S Secure Solutions ( UK) Ltd [2022] EWHC 694 ( Ch), [2022] All ER ( D) 56 ( Apr) What are the practical implications of this case? This ruling underscores how hard it is to justify payments made after presentation of a winding-up petition. Even though G4S Secure Solutions ( UK) Ltd ( G4S) did not know of the petition, it could not lawfully keep the monies received. That outcome, though harsh for individual creditors, reflects the policy embodied in IA 1986, s 127. Except in rare cases, a validation order should be confined to dispositions that advantage the unsecured creditor body as a whole ( Express Electrical Distributors Ltd v Beavis [2016] 1 WLR 4783), and that criterion was not met here. Because a change of position defence arises only where a...

Ofgem has announced two decisions in relation to Balancing Services Use of Systems ( BSUo S) charges. Firstly, it has approved the Connection and Use of Systems Code ( CUSC) modification proposal 308 ( CMP308), which changes how BSUo S charges are......

Fuhrmann-2- Gmb H v B Case C‑249/21 What are the practical implications of this case? The Court of Justice held that, when assessing compliance with Directive 2011/83/ EU (the EU Consumer Rights Directive), only the wording displayed on the order confirmation button itself counts in showing that, at the moment of ordering, the consumer clearly accepts that their action entails an obligation to pay. Consequently, traders must take particular care with the precise text used on any button that signifies a payment commitment... The European Commission’s latest guidance on the EU Consumer Rights Directive further clarifies that the order button on a website must be clearly labelled, with the relevant indication placed on the button or directly alongside it. Examples that express the required message include: buy now pay now confirm purchase By contrast, expressions such as: register confirm order...