Legal News

Chelfat v Hutchison 3G UK Ltd [2022] EWCA Civ 455 What are the practical implications of this case? On the narrow issue, where a claimant intends to serve out of the jurisdiction without seeking permission, this decision confirms that the court is obliged to issue a claim form submitted without a Form N510 or equivalent notice. Lodging the claim form alone is sufficient, despite text of CPR 6.34(1) stating that ‘the claimant must—(a) file with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction’. Turning to the wider point about substitute claim forms, the court adopted a generous interpretation of the phrase ‘as issued’ in CPR PD 7A, para 5.1—‘where the claim form as issued was received in the court office on a date earlier than the date on...

JSC VTB Bank v (1) Alexander Katunin (2) Sergey Taruta (3) Arrowcrest BVIHC ( COM) 2014/0062 Background VTB, a Russian bank, moved to enforce a US$30m judgment debt against a Ukrainian businessman and politician, secured before the invasion of Ukraine. Following the UK’s sanctions against VTB, its BVI legal advisers applied to come off the record on the basis that continuing to represent VTB would harm their reputation and was likely......

R (on the application of Good Law Project Ltd and another) v Prime Minister and another [2022] EWHC 298 ( Admin) Standing addresses who is entitled to initiate a claim in judicial review and, across successive administrations, it has been regarded as ‘ripe for review’ for a considerable period. In 2013, the government issued a consultation on reforming judicial review, proposing a tighter approach to standing that would demand a more immediate and concrete interest in the subject of the challenge. In July 2020, the government convened an independent panel to examine a range of substantive and procedural changes, with standing among the topics considered. After the judgment in GLP and Runnymede Trust, standing is poised to move from a rarely contested or discussed point within judicial review proceedings to one that may often take centre-stage in public interest cases. The ruling is...

DM v CTS Eventim AG & Co KGa A Case C‑96/21 What are the practical implications of this case? The ruling makes clear that customers lack a withdrawal right from agreements for cultural or sporting events fixed for a specific date where attendance is limited, irrespective of whether they reserved directly or through a middleman. Note too that Directive 2011/83/ EU (the EU CRD) is being amended by Directive ( EU) 2019/2161, the EU Omnibus Directive, which applies from 28 May 2022; the European Commission has therefore revised its guidance, and that guidance aligns with this outcome. That guidance mirrors the decision and reinforces that approach for such events in the Commission's materials. Although an EU judgment, it remains pertinent to UK businesses, as UK courts may have regard to EU case law, and UK companies sell to consumers across the EEA. What was the...

Neurim Pharmaceuticals (1991) Ltd and another v Generics ( UK) Ltd (trading as Viatris) and another [2022] EWCA Civ 370; Neurim Pharmaceuticals (1991) Ltd and another v Generics ( UK) Ltd (trading as Viatris) and another [2022] EWHC 512 ( Pat) What are the practical implications of this case? This pair of rulings offers useful guidance on the stance the Court of Appeal may adopt when a party is restrained by a final injunction. Although Mylan had signalled an intention to seek permission from the Court of Appeal—permission having been refused by Mr Justice Marcus Smith—it still faced a swift removal from the market. The Court of Appeal responded to the urgency, aiming to ‘hold the ring’ for a short window until a substantive hearing could take place. It indicated that enabling an orderly...

Tokio Marine Holdings Inc announced in a statement that it will refuse to honour insurance contracts taken out by firms linked to Lex Greensill and his supply-chain finance group, after a thorough investigation. The Tokyo-headquartered insurer said it had found that Greensill fraudulently misrepresented matters material to underwriting the policies to BCC Trade Credit Pty Ltd, Tokio’s Australian subsidiary, from at least September 2018. In light of those deceitful misrepresentations and fraudulent breaches of an insured’s duty of disclosure, Tokio Marine today notified counterparties that these policies, and related obligations, are void from inception, the company said. Tokio Marine added it will vigorously defend itself against claims brought against it and against BCC, whether brought, lodged, filed or made, over......

R (on the application of Park Lane Homes ( South East) Ltd) v Rother District Council [2022] EWHC 485 ( Admin) What are the practical implications of this case? First, the judgment confirms there is no duty in statute, national policy, or Secretary of State guidance for a neighbourhood development plan to include housing provision or make housing allocations. However, where a draft neighbourhood plan proposes to exclude such provision, care is needed to ensure it does not conflict with the development plan. Secondly, the judgment clarifies that, while procedural fairness may on occasion necessitate further consultation or additional opportunities to make representations, such situations will be uncommon where a detailed statutory regime is in place, as with neighbourhood plans. In general, where the statutory requirements are fulfilled, it will be challenging to rely on procedural unfairness when contesting a...

Colley v Motor Insurers’ Bureau [2022] EWCA Civ 360 What are the practical implications of this case? In practice, the ruling’s immediate impact is somewhat constrained because section 152(2) of the Road Traffic Act 1988 ( RTA 1988) has been amended, removing an insurer’s ability to sidestep liability under RTA 1988, s 151 on the footing of a later declaration entitling it to avoid the policy. The amendment applies prospectively only, from 1 November 2019, so any claims in respect of accidents occurring before that date will remain subject to the old wording (to which the decision in Colley will directly apply). Even so, the Court of Appeal’s approach to the insurance obligation under Articles 3 and 10 of EU Directive 2009/103 (the ‘ Codified Directive’) has consequences for personal injury road traffic claims going forward. The effect is that there are only very...

Re Michael Bernard Mc Namara; Wilson and another (joint trustees in bankruptcy of Michael Bernard Mc Namara) v Mc Namara and others [2022] EWHC 243 ( Ch) What are the practical implications of this case? The applicants were prevented from advancing a fresh point after a Court of Justice ruling. Their argument—that the Court of Justice’s conclusion that WRPA 1999, s 11 was contrary to Article 49 TFEU, save where justified in the public interest, meant the UK High Court had to assess justification—was rejected. The Court of Justice is not an appellate body issuing instructions to a lower court; apart from delivering definitive statements of law, it lacks authority to direct the national court’s procedure or determinations. It followed that any justification case had to be raised within the existing proceedings, and the applicants had not done so before the...

Unite the Union v Freitas [2022] EWHC 666 ( QB) What are the practical implications of this case? Defamation actions by trade unions are rare. In EETPU v Times Newspapers Ltd [1980] QB 585 it was determined that such actions could not be pursued, although that position likely no longer states the law: see Duncan and Neill on Defamation, 5th edn, 10.11. In granting a substantial sum (comparable with numerous general damages awards to trading companies), Mr Justice Collins Rice acknowledged the centrality of reputation to a union. The judge observed that unions depend on their standing to recruit and retain members and that, to conduct collective bargaining effectively, a reputation for acting in good faith and for recommending the best achievable outcome is fundamental to their purpose. Even so, the decision should be approached with care for two...

Ukraine conflict—impact of Russian invasion and sanctions on English law contracts—frustration, illegality, force majeure & MAC Does your agreement contain an illegality, force majeure or material adverse change ( MAC) provision and, if so, has it been engaged? This turns on construction, so the orthodox approach applies—scrutinise the pertinent circumstances and the wording of the provision. What, precisely, is the operative occurrence? It might be a legal development (eg whether making payment would constitute a criminal offence) or a factual situation (routes are blocked, power is unavailable, the plant has been hit). Does that occurrence fall within the clause’s reach, expressly or by necessary implication? Many force majeure provisions enumerate events that qualify. An illegality provision may identify the system of law under which performance must have become unlawful. MAC provisions frequently do not delineate what is covered, relying instead on the plain sense of the...

HMRC v AML Tax ( UK) Ltd UKUT 81 ( TC) The company formed part of a loosely associated Isle of Man group and operated in connection with tax avoidance arrangements used by UK contractors and sub-contractors. The exact scope of what it did was uncertain, but it encompassed promoting the group’s avoidance offerings and devising and delivering at least one arrangement. HMRC opened enquiries into the company’s 2014 and 2015 returns and, in February 2018, served an information notice. The company provided no compliance at all until December 2019, and some of the requested material was still outstanding until August 2021. After issuing fixed and daily penalties, HMRC applied to the UT for a penalty under FA 2008, Sch 36, para 50......

Hargreaves v HMRC [2022] UKUT 34 ( TCC) Although the taxpayer, Mr Hargreaves, had persuaded the FTT to set aside the discovery assessments by relying on staleness, the Supreme Court’s ruling in Tooth [2021] UKSC 17 effectively removed staleness as a viable concept. In consequence, HMRC’s appeal on that ground was bound to succeed, and the taxpayer did not seek to argue otherwise. As a safeguard, in case it were mistaken on staleness, the FTT also examined further points and stated it would have found for HMRC on those too. Mr Hargreaves appealed those alternative conclusions to the UT, but that appeal did not succeed. The dispute arose because Mr Hargreaves filed a self-assessment tax return on the footing that he was not resident in the UK for the year concerned. HMRC took the view that this was wrong and raised an...

What are opt-out claims and why are they big business? The Competition Act 1998 ( CA 1998) was revised in 2015 to allow a representative opt-out action to be pursued. In essence, one individual may sue on behalf of every person within the jurisdiction who has suffered from unlawful anti-competitive conduct, and seek compensation for them (to be allocated afterwards). The potential headcount and the scale of any award can be staggering. In the case brought against Mastercard, the class comprises around 40 million people (all living UK-based adults who have ever purchased from a retailer that took Mastercard), and the sum demanded is about £14bn. Why are costs arrangements relevant? To secure a collective proceedings order—effectively the green light to advance the case—specified requirements in the CA 1998, the Competition Appeal Tribunal Rules 2015, the CAT Guide and the authorities must be met. First, there must be an...

Hyman and another v HMRC [2022] EWCA Civ 185 Under section 116 of the Finance Act 2003 ( FA 2003), any land which is, or comprises part of, the gardens and grounds of a dwelling is regarded as being residential property and is charged to SDLT at the residential rates. The taxpayers were seeking to argue that land acquired with a dwelling did not constitute part of that property’s garden or grounds, so that buying the dwelling together with the land should be classed as mixed-use property (and benefit from the lower non-residential SDLT rates). They further maintained that land can qualify as garden or grounds of a dwelling only where the land is required for the reasonable enjoyment of the......

What are the practical implications of this case? In dismissing Bloomberg’s appeal, the Supreme Court relied extensively on a run of first‑instance decisions recognising a claimant’s reasonable expectation of privacy while they are the subject of a state investigation but have not been charged. The outcome is unsurprising, yet claimant representatives will view it as welcome confirmation that this expectation is the legitimate starting point in any given case. Although the dispute centres on the tort of misuse of private information, the court’s acceptance that, in appropriate circumstances, an individual’s reputation may fall within Article 8 will interest defamation specialists. The ruling also intensifies scrutiny of the long‑standing common law principle in Bonnard v Perryman [1891] 2 Ch 269. In essence, that principle bars a claimant from securing an interim injunction to stop publication of proposed defamatory material where the defendant indicates an...

Leave. EU Group Ltd and another v Information Commissioner [2022] EWCA Civ 109 What are the practical implications of this case? This decision distils the key considerations a court will weigh when deciding how to handle an appeal where one party is absent. In relation to appeals originating in the Upper Tribunal, it delivers a detailed examination of the scope of the Court of Appeal’s powers under the Tribunal Procedure ( Upper Tribunal) Rules 2008 ( TP( UT) Rules 2008), SI 2008/2698, and then tests whether the applicable thresholds are met on the facts, including whether the hearing was duly notified and whether proceeding serves the interests of justice. For appeals that do not come from the Upper Tribunal, the judgment confirms the court’s inherent jurisdiction to continue with an appeal despite a party’s non‑attendance. Finally, practitioners will welcome the court’s remarks on the...

Abellio East Midlands Ltd v Thomas [2022] EAT 20, ( EA-2020-000935- OO) What are the practical implications of this judgment? The decision underscores that employment tribunals do not have jurisdiction over every type of pay-loss dispute. Practitioners should carefully assess whether a pay claim satisfies the relevant statutory criteria so it can proceed in the tribunal as an unlawful deduction from wages under Part II of the Employment Rights Act 1996 ( ERA 1996). Only where those criteria are met can the matter be advanced in the employment tribunal; otherwise it must be issued in the County Court or High Court as a breach of contract action or on a quantum meruit basis. It should also be noted that if a claim is brought in a court rather than a tribunal the procedural rules are different—for example in relation to pleadings,...

What are the practical implications of this case? This claim sits among numerous legal actions worldwide accusing governments of failing to act to fulfil their Paris Agreement climate obligations and of infringing various human rights. It highlights the markedly growing prevalence of rights-based climate claims, with many claimants invoking human rights as a tool for holding defendants to account for their climate commitments. While the court acknowledged that climate-related matters are of great importance, the judgment equally exposes the considerable challenge of using litigation in the English courts to contest the UK government’s climate conduct under current domestic law. Regarding the Paris Agreement arguments, the court determined that English courts have no jurisdiction to rule on whether the government has breached obligations arising under an unincorporated international treaty. The court also observed that, since there is an...

Olympic Council of Asia v Novans Jets LLP [2022] EWHC 88 ( Comm) What are the practical implications of this case? Many of the conclusions flowed from the fact that neither side had lawyers involved in preparing the agreement. That omission made the terms hard to construe—first for the parties when deciding how to deal with the disputed invoice, and then for the court when determining the outcome. Acknowledging the potential injustice of a purely literal approach, Mrs Justice Moulder signalled that the court will consider the surrounding commercial context, particularly where the drafting is ambiguous and there is a real danger the parties accepted provisions which, with hindsight, did not advance their interests (para [163]). The decision also serves as a caution to those attempting to invoke contractual remedies before engaging with their opposite number. In assessing whether there had been a...