Legal News

Judgments in Joined Cases Azurair and others, Cases C-146/20, C-188/20, C-196/20 and C-270/20, Airhelp, Case C-263/20, and Corendon Airlines, Case C-395/20 What are the practical implications of these cases? These rulings carry two key practical consequences for operating carriers governed by Regulation ( EC) No 261/2004 (the Regulation): Airlines must scrutinise timetable alterations, not only where they plan to push departures back (i.e. a delay for the purposes of the Regulation) but also where they intend to set off more than one hour earlier than scheduled, so as to avoid exposure to cancellation compensation. Article 5 of Regulation ( EC) No 261/2004 sets out compensation for cancelled flights and requires payment unless passengers are actually told in advance (and receive that notice), which may prove expensive if overlooked. Carriers are likewise reminded to provide passengers with clear information on their...

X London Borough Council v MR (by his litigation friend, the Official Solicitor) and others [2022] EWCOP 1 What are the practical implications of this case? While best interests determinations are always grounded in their specific facts, this decision will interest Court of Protection practitioners because it models a comparative best interests evaluation of end-of-life residence and care options. The judgment underscores that, in welfare proceedings, the court and the parties must look beyond mere preservation or extension of life and physical health, and give proper weight to a person’s quality of life. Here, the court accepted that relocating to a different care home carried ‘a high risk of adverse events including a higher risk of mortality’, especially in the initial months after any move. It also acknowledged that MR’s advanced dementia significantly curtailed his capacity to comprehend religious or cultural customs or...

On 15 December 2021, the government presented to Parliament regulations to implement the proposals set out in the Consultation response: EV Charge points in Residential and Non-residential Buildings (for more information on the proposals, see: Consultation outcome on electric vehicle charge points in buildings published, LNB News 22/11/2021 81). The Regulations, SI 2021/1392, set out the specifics developers and other stakeholders require to comply with the new obligations. In this legal update, we address key questions about the new regulations and their application. When do the Regulations come into force? The Regulations will come into effect on 15 June 2022. What about developments in progress as at 15 June 2022—will they be subject to the new requirements? The Regulations contain transitional provisions. They will not apply in relation to building work where a building notice or an initial notice has been provided to, or full plans have been...

Paul and another v Royal Wolverhampton NHS Trust and others [2022] EWCA Civ 12 What are the practical implications of this case? Before Paul, pinning down when a claimant could recover for a shocking event was problematic, as two Court of Appeal authorities— Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 and Taylor v A Novo ( UK) Ltd [2013] EWCA Civ 194—were difficult to reconcile. In Paul, the Court of Appeal determined that Taylor is controlling and that it requires the shocking event to be linked to the defendant’s breach of duty. That stance produces such manifest unfairness that the Court of Appeal has indicated it is minded to grant permission to appeal. Consequently, any claimant advancing a secondary victim claim affected by Paul would be well advised to defer issuing their......

IHRAR report The IHRAR’s publication is an exceptionally comprehensive and highly impressive piece of analysis. It accepts as a fixed point the government’s commitment to remain a party to the European Convention on Human Rights ( ECHR). This includes the ability of individuals to petition the European Court of Human Rights ( ECt HR) in Strasbourg once domestic avenues of redress are exhausted. Throughout the IHRAR there is recognition that reforms restricting people’s capacity to enforce rights in the UK courts may prompt more cases going to Strasbourg, which would ‘run counter to the HRA’s original objective of bringing rights home’, rather than resolving matters within the domestic legal system. The IHRAR proposes only limited amendments to the HRA itself. They are notably restrained and incremental in nature overall. The principal ones are: a modification to the test in HRA 1998, s 2, which...

Shah v Barnet London Borough Council [2021] EWHC 2631 ( QB) What are the practical implications of this case? Master Stevens’ judgment provides a clear demonstration of the considerations a court will apply when a defendant seeks to resile from a pre-action admission under CPR 14.1A. Its significance is not confined to personal injury claims. The Master’s thorough survey of the authorities and careful weighing of the factors in CPR PD 14, para 7.2 equips both claimants and defendants to assess the strengths of making or opposing such applications. The decision emphasises that a defendant must come armed with precise, persuasive reasons both for having made the admission and for wishing to withdraw it. The threshold for undoing a pre-action admission is high. Claimants will be reassured by the judge’s concern that attempting to resile after substantial investigation of quantum has been...

R (on the application of Sav Development Ltd) v London Borough of Tower Hamlets [2021] EWHC 3211 ( Admin) What are the practical implications of this case? This judgment illustrates and confirms that: where justified, local policy may diverge from national policy for local authorities, when such a course is contemplated during plan-making, thorough evidence gathering is essential a conflict between policies can only exist where there are two policies there is no inconsistency between a document containing a specific policy on a topic and another that is silent on that topic this approach applies to both section 38(5) of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004) and the Town and Country Planning ( Local Planning) ( England) Regulations 2012, SI 2012/767, reg 8(3) planning policy should be read on its face, unless there is a...

Abdulrazaq and others v Hassan and others [2021] EWHC 3252 ( QB) What are the practical implications of this case? The judgment’s central interest lies in its treatment of the claimants’ contention that the impugned words were not, in truth, a reply issued by the defendants to an attack from the claimant. Rather, the claimants advanced that those words amounted to a riposte to an attack they had themselves published in expectation of a likely assault by the defendants (that is, a riposte to a reply published in anticipation). On that basis, the claimants said the privilege ought not to extend to the defendants’ riposte to the claimants’ attack/anticipated reply. Typically, reply-to-attack privilege does not cover the initial publication—the attack—but does protect the reply, irrespective of whether the first publication is defamatory. The claimants maintained that a riposte to a predicted attack should fall outside the...

R (on the application of the FDA) v Prime Minister and Minister for the Civil Service [2021] EWHC 3279 ( Admin) What are the practical implications of this case? Lawyers often tend to believe that any dispute can be settled by judges ascertaining the facts and then applying the law. That belief is, inevitably, mistaken. Within public law there are matters that courts cannot adjudicate upon. Some are constitutionally out of bounds, for instance Parliament’s decision to pass an Act. Others are non-justiciable because they are fundamentally political, such as choices about how public money should be allocated. Yet the limits are not always sharp. A decision on whether to prorogue Parliament, and for how long, was regarded as plainly non-justiciable by the Lord Chief Justice ( Lord Burnett), the Master of the Rolls ( Sir Terence Etherton) and the President of the Queen’s Bench...

A D Bly Groundworks and Civil Engineering Ltd and CHR Travel Ltd v HMRC [2021] UKFTT 445 ( TC) Both taxpayers used the same firm of chartered accountants to set up a UURBS, under which they undertook to provide directors and certain key employees with a pension at a later date. The taxpayers recorded provisions in their accounts for their liability to make those pension payments in future, thereby recognising expected obligations to be settled in due course as and when those benefits fell due. For each relevant period, the provisions were set at between 80% and 100% of profits before tax, respectively. The UURBS was notified to HMRC under the disclosure of tax avoidance scheme provisions. The only issue for the FTT was whether the provisions were allowable deductions. It determined that the provision of......

Judge Sara Cockerill handed the bank a penalty at Southwark Crown Court for breaching regulations after a regional commodities trader paid in £365m ( US$483m), chiefly in cash, over five years. She remarked that, while the bank was not itself complicit in the laundering taking place, the crimes could not have occurred without its shortcomings. The judge set out numerous lapses and failures by the lender in overseeing and probing Fowler Oldfield Ltd, a gold dealer connected to the case......

Building Design Partnership Ltd v Standard Life Assurance Ltd [2021] EWCA Civ 1793 What are the practical implications of this case? The Court of Appeal’s unanimous ruling in Building Design Partnership Ltd v Standard Life Assurance Ltd delivers three important and practical takeaways. The first concerns the manner in which a claim is pleaded. As a matter of pleading, the Court confirmed that, in principle, a case relying on sampling and extrapolation may properly be advanced on that footing. In this case, the court expressly determined that such a claim should not be struck out (and that summary judgment ought not be granted against the party advancing it) where it cannot be shown that the claim is bound to fail. In doing so, the court endorsed first-instance authorities permitting a case to proceed to trial when pleaded on an...

For many, the hallmark of the Localism Act 2011 was its far-reaching neighbourhood planning regime, which for the first time shifted statutory plan-making powers to parish councils and, in areas without parishes, to a new statutory body, the neighbourhood forum. The Neighbourhood Development Plan ( NDP) emerged and took its place within the planning system. The political rationale appeared twofold: to spread responsibility, and some of the financial burdens of plan-making, down to lower tiers of government and, alongside that, to involve local people directly in preparing plans. In this spirit of empowerment, neighbourhood planning was intended to be simple to navigate and unencumbered by undue regulation. The ministerial foreword to the original National Planning Policy Framework ( NPPF), issued six months later in March 2012, observed that planning had tended to exclude rather than include people and communities; it suggested...

What are the practical implications of this case? As regards the substantive law, this ruling offers a clear and authoritative account of the principles to apply where an order appears, on its face, to be legally defective. In this instance, the order did not comply with a statutory provision; nevertheless, being an order of the court, it demanded obedience. Parties to, and bodies affected by, such an order can now be advised with confidence, given the certainty derived from Lord Reed’s analysis. The judgment strongly underscores the rule of law and the orderly administration of justice. A legally flawed order is not without legal effect. The court highlights the vital importance of certainty and finality, observing that the contrary stance would create administrative disorder and could expose third parties to legal liabilities. The decision is pertinent to those litigating with or against...

Brown v Fisk and others [2021] EWHC 2769 ( QB) What are the practical implications of this case? Master Dagnall’s ruling sits within an established stream of English and Scottish authority. It confirms, consistently with decisions over time at every level up to the Supreme Court, that the expression ‘road or other public place’—used repeatedly in road traffic legislation—cannot sensibly be extended to secure alignment with the Court of Justice ruling in Vnuk. The Master also explores the factors that require consideration, yet acknowledges the difficulty of reconciling the principal authorities with each other. Advisers supporting victims of ‘off‑road’ vehicle accidents, where the existence of insurance cover is uncertain or disputed, may find his detailed review particularly useful. What was the background? The claimant suffered injury after a collision with a Land Rover whilst members of the bonfire society were gathering jumble within a gated and fenced yard off a...

Under the most recent draft prepared by Slovenia, which will steer legislative negotiations in the Council of the EU through the very end of this year, the remit is set to be expanded to also cover regional and local public authorities formally marked by national governments as critical, as any interruption to their operations or services could seriously affect public safety and security. The update to Directive ( EU) 2016/1148, the NIS Directive, tabled by the European Commission in December 2020 aims to harmonise national cybersecurity approaches, to foster the exchange of threat information between countries and to mandate a baseline of security obligations for companies whenever they fall......

Lehman Brothers Holdings Scottish LP 3 v Lehman Brothers Holdings plc (in administration) and others; Joint liquidators of LB GP No 1 Ltd (in liquidation) and another v Joint administrators of Lehman Brothers Holdings plc (in administration) and another [2021] EWCA Civ 1523 What are the practical implications of this case? The effect of the court’s adjustment to the rule against double proof is that a surety who makes a part payment under a settlement and, in doing so: waives its right of indemnity against the insolvent principal debtor; and obtains an assignment from the creditor of the principal debtor’s liability, will be confined to proving for the remaining unpaid amount. In its capacity as assignee, it cannot rely on the general double proof rule that allows an unpaid creditor to prove in full without setting off any part payment made by a surety. Parties should...

M/ V Pacific Pearl Co Ltd v Osios David Shipping Inc [2021] EWHC 2808 ( Comm) What are the practical implications of this case? The judgment carries significant consequences for P& I Clubs and other insurers, because sanctions create substantial complexity for arranging cover and for delivering benefits, including security for claims. Any association with a sanctioned state increases banks’ risk of non-payment, even where the transaction is neither prohibited nor sanctionable. This mirrors banks’ positions on transfers linked to sanctioned jurisdictions, even where no prohibition applies in the banking system. It is therefore reasonable for P& I Clubs to incorporate sanctions clauses into security documentation that mirror the banks’ stance. In practice, the possibility of non-payment exists regardless of the security obtained—be that a vessel arrest or an LOU—by the recipient. Nevertheless, a recipient presented with P& I Club security...

A recent county court judgment throws a spotlight on CCTV/video camera surveillance and data protection, including the lesser-discussed issue of audio recording. André Bywater and Jonathan Armstrong, lawyers at Cordery in London with a compliance focus, outline the ruling’s key data protection points. Fairhurst v Woodward case no G00MK161 What are the practical implications of this case? As a county court decision, this is not binding authority. Nevertheless, with the spread of smart doorbells and other video and audio recording systems, it offers a helpful illustration of questions that courts and regulators are likely to face in future. Although the claim concerned a domestic property, the same issues can also arise for businesses, serving as a reminder that both individuals and organisations must take data protection compliance seriously when using surveillance systems. UK businesses should consider the most...

What are the practical implications of these cases? These joined references give the Court of Justice another chance to examine how certain car makers have fitted engines with so‑called ‘defeat devices’. Such software and hardware alter readings for particular pollutants, making a vehicle seem to meet environmental thresholds far more frequently than it truly does. The Court has only lately clarified what amounts to a prohibited defeat device under Regulation ( EC) No 715/2007, and the present matters concern the application of that interpretation to highly sophisticated systems which curtail emissions‑control depending on the temperature and the altitude at which the car is operated. The Advocate General adopts a firm, purposive reading of the Regulation and underlines its role within the European Union’s broader aims and objectives of securing a high level of environmental protection, a key element of which is the...