Legal News

Top System SA v Belgium Case C-13/20 What are the practical implications of this case? Practitioners already recognise that software licensing terms cannot bar decompilation where it is indispensable to obtain information needed to secure interoperability between computer programmes, provided the conditions in the relevant Software Directive are satisfied. Beyond this (limited) carve‑out, it was commonly thought that decompilation could be prohibited by a software licence (see the Opinion of AG Szpunar of 10 March 2021, point 82). Indeed, the Copyright, Designs & Patents Act 1988 ( CDPA 1988) states that copyright is not infringed when a programme is copied or altered, so long as those steps are necessary for the licensee’s lawful use and are not excluded by contract ( CDPA 1988, s 50C). In practice, software licences often expressly ban decompilation. Yet the Court of Justice held that...

Ho ( Respondent) v Adelekun ( Appellant) [2021] UKSC 43 What are the practical implications of this case? This ruling carries particular practical significance when read alongside Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654, [2018] 1 WLR 6137. Cartwright established that a defendant may enforce costs only against the amount of any damages and interest ordered in the claimant’s favour, and not against money payable under a settlement, for example by Tomlin order or pursuant to Part 36. As the great majority of personal injury claims resolve by agreement, Adelekun has broad and important consequences for claimants, defendants and their representatives: a defendant will, in general, be able to recoup its costs only if, at trial, an order is made awarding damages to the claimant. Since proceeding to trial and then losing is usually the last outcome a defendant seeks, in...

Joined cases Vodafone Gmb H v Bundesrepublik Deutschland Case C-854/19; Verbraucherzentralen und Verbraucherverbände— Verbraucherzentrale Bundesverband e V v Vodafone Gmb H Case C-5/20; and Telekom Deutschland Gmb H v Bundesrepublik Deutschland Case C-34/20 What are the practical implications of this case? Zero tariff, or zero rating, has long been contentious because it deliberately favours some app providers, clashing with net neutrality principles—the idea that the internet should be open to everyone and free from unequal treatment. Under these offers, a customer buys a data bundle but can use specified apps without that usage counting against their allowance. In other words, usage of named services does not reduce the volume of data included in the plan. These carve‑outs are determined by the ISP. The ISP chooses which apps are exempt and, typically, these are those linked to particular partnerships. In the Telenor ruling last year, the Court of...

Mars Capital Finance Ltd v Hussain and others [2021] EWHC 2416 ( Ch) What are the practical implications of this case? This ruling underlines that, after a transfer of land has been entered on the register, any prior defects in the enforceability of the underlying contract for that transfer cease to matter. Accordingly, earlier formal shortcomings cannot be used to unsettle a completed, registered disposition. That principle is clear and decisive here. In addition—though not essential to the outcome—the judge endorsed the position that sections 43 and 44 of the Companies Act 2006 permit three mechanisms for a company to enter a written contract (by the company or on its behalf). This contrasts with the interpretation that, for the purposes of the Law of Property ( Miscellaneous Provisions) Act 1989, only two methods exist, and it departs from Lewison J’s approach in Redcard Ltd v...

The Financial Conduct Authority ( FCA) has barred Jon Frensham (previously known as Jonathan James Hunt) from carrying out regulated activity. The FCA concluded Frensham, an independent financial adviser and sole director of Frensham Wealth Limited, lacks the integrity to operate in financial services. In March 2017, Frensham was found guilty of attempting to meet a child following sexual grooming. He committed this offence......

Desporte v Bull [2021] EWHC 2370 ( QB) What are the practical implications of this judgment? This ruling underscores that, where an adversary is intent on clogging the process and harassing the court and other participants with a flood of hopeless claims and applications, parties ought to act promptly by seeking an ECRO, curbing escalating costs and avoiding futile hearings. It also distils the principles judges apply when considering such orders. Crucially, although a person's lack of representation is a relevant feature, it does not pardon persistent abuse of process or baseless claims, especially where clear warnings about the likely repercussions have already been given. What was the background? Although we attempt to condense the backdrop, the matter comprises a tangled web of claims, applications, hearings and rulings across a number of years, many found to be wholly without merit or aimed solely at...

The Software Incubator Ltd v Computer Associates UK Ltd Case C‑410/19 What are the practical implications of this case? The Court of Justice has issued the most recent ruling in a protracted dispute first considered by the High Court in 2016, arising out of an agreement that was terminated in 2013. The case will now return to the Supreme Court which, pursuant to Articles 86 and 89 of the UK/ EU Withdrawal Agreement, is obliged to give effect to that judgment. Although the Supreme Court’s final position is still awaited, the decision is expected to carry major consequences for software resellers who, acting as commercial agents, may rely on the protections and remedies provided by the Commercial Agents Regulations, SI 1993/3053, irrespective of the format or medium through which software is supplied to customers. It is likewise important for principals that deploy...

Galer v Mond (administrator of SFPL Ltd) and another [2021] EWHC 1952 ( Ch), [2021] All ER ( D) 110 ( Jan) What are the practical implications of this case? Several elements of this ruling turn on the precise wording of the facility agreement and the deed of assignment, so its broader relevance is limited. Even so, the court set out helpful general guidance: in the absence of any evidence of misconduct, it is wholly improper to imply that a particular administrator will fail to fulfil their duties properly. The judge made plain that one cannot obtain a declaration that an administrator’s appointment is invalid by relying on what he described as 'a smokescreen of general allegations'... What was the background? SFPL Ltd ( SFPL) was incorporated in August 2016 as a vehicle for the acquisition and development of a property in London. There were a number of...

The Care Quality Commission ( CQC) secured a prosecution against Belvedere Private Hospital for failing to display its CQC ratings. Pemberdeen Laser Cosmetic Surgery Clinic Limited, which operates Belvedere Private Hospital, was fined £500 and ordered to pay £4,520 in costs plus a £50 surcharge at Bromley Magistrates’ Court. CQC stated the hospital’s website carried a link to CQC website......

Jalili v Bury Council 20210617 What are the practical implications of this case? Recent years have seen a sharp rise in tenants pursuing housing disrepair claims against social landlords. How these cases are allocated to a track is somewhat atypical. Under CPR 26.6(b), such proceedings go to the small claims track where there is an application for an order obliging the landlord to carry out remedial works and ‘the cost of the repairs or other work to the premises is estimated to be not more than £1,000’ together with ‘the value of any other claim for damages is not more than £1,000’. Consequently, if specific performance is sought, the case moves to the fast track if either the estimated repair cost or the damages claim exceeds £1,000. Failing that, the fast track only applies where the damages claim exceeds £10,000. The majority of...

Pakistan International Airline Corporation v Times Travel ( UK) Ltd [2021] UKSC 40 What are the practical implications of this case? This Supreme Court ruling delivers a timely and thorough reassessment of the law on lawful act economic duress. Divergent judicial approaches in the case underscore the area’s complexity and challenge. The claim of lawful act duress prevailed at first instance, but the Court of Appeal reversed that outcome. The Supreme Court affirmed the Court of Appeal, though only one Justice, Lord Burrows, adopted its reasoning. The majority advanced a different analysis yet ultimately agreed that this was not a case of lawful act economic duress. The extent of disagreement is regrettable, given the core question: how far parties in commercial bargaining may leverage inherent advantages to obtain a stronger negotiated position from a weaker counterpart. That is a practical concern...

Representative claim by and on behalf of insurance companies is properly constituted ( Royal & Sun Alliance Insurance plc and others v Textainer Group Holdings Ltd and others) Royal & Sun Alliance Insurance plc and others v Textainer Group Holdings and others [2021] EWHC 2102 ( Comm) What are the practical implications of this case? This decision stands as an unusual authority on CPR 19.3. The rule provides, in substance, that where a claimant pursues relief to which another person is jointly entitled with him, every person sharing that joint entitlement must be joined as a party unless the court directs otherwise. The court adopted a narrow construction, treating the provision as limited to situations involving a joint legal right to the remedy. It does not encompass cases where multiple parties hold several rights to relief and merely share a common interest in the outcome. In that...

ABC v The London Borough of Lambeth [2021] EWHC 2057 ( QB) What are the practical implications of this case? The practical effect of this ruling is that a claim form uploaded on CE-file can be treated as filed at the point of its initial upload and payment of the court fee, even if the document later had to be re-lodged owing to ‘procedural’ defects. The ruling is tightly confined. It applies where the claimant has obtained an anonymity order before filing the claim, and the claim form is not lodged with the application or the sealed order. It remains prudent for any party to file before the end of any limitation period. A claim form affected by ‘procedural’ defects may still be regarded as filed earlier. However, the judgment does not offer (and does not purport to offer) any further steer on which kinds of...

Mincione v Gedi Gruppo Editoriale Sp A [2021] EWHC 2006 ( QB) What are the practical implications of this case? The ruling offers practical insight for practitioners on procedure and substance. On the procedural front, it intimates that a defendant may contest the court’s jurisdiction under CPR 11(1) in relation to only part of a claim, not merely the whole. Although, on a literal reading, CPR 11(1) does not appear to authorise such a partial challenge, the notes in Civil Procedure 2021 ( Volume 1) (the White Book) suggest—albeit without authority—that it can be done. Tipples J voiced reservations because of the wording of CPR 11(1), particularly when contrasted with a provision like CPR 24.2(a). Nevertheless, as the claimant did not take the point, the court proceeded on the footing that jurisdiction existed. The judgment also addresses timing. Where the...

Ladson Preston Ltd and AKA Developments Greenfield Ltd v HMRC [2021] UKFTT 251 ( TC) Both Ladson Preston Ltd ( Ladson) and AKA Developments Greenfield Ltd ( AKA) purchased property benefiting from planning permission for multiple residential units. As at the effective date of each transaction, no dwelling had yet been erected. The taxpayers contended that the presence of that consent was enough to satisfy the statutory wording of paragraph 7(2)(b) of Schedule 6B to the Finance Act 2003 ( FA 2003). Under that provision, a building qualifies as a dwelling for the purposes of multiple dwellings relief ( MDR) if it is in the course of construction or is being adapted for such occupation. AKA had additionally carried out early-stage site works and argued that those operations—specifically the drilling of boreholes—meant the dwellings were already in the process of being built. The cases...

Rock Ferry Waterfront Trust v Pennistone Holdings Ltd [2021] EWCA Civ 1029 What are the practical implications of this case? The circumstances of this case may seem, to some at least, somewhat unusual. Yet they are the kind of facts that are liable to arise in practice more often than might first appear. From the judgment two key principles can be drawn: firstly, where a company not incorporated under the laws of England and Wales is dissolved at a time when it owns property situated in England and Wales, section 1012 of the Companies Act 2006 (the bona vacantia provisions) does not apply. Nonetheless, the company’s incorporation in another jurisdiction does not prevent English law from governing what then happens to the land. Under English law, the land escheats to the Crown and the freehold previously vested in the dissolved company is...

Maypole Dock Ltd v Catalyst Housing Ltd [2021] EWHC 1742 ( TCC) What are the practical implications of this case? This was a relatively unusual application, namely to curtail the continuation of an expert determination. While there are several reported decisions where injunctions were pursued to halt adjudications, and both parties relied on those authorities, the court had no difficulty distinguishing them, finding that different considerations arose here. In this instance, one party sought to uphold what it asserted was a contractual entitlement to an expert’s determination, whereas the other wished to engage the court’s jurisdiction. The suitability of an injunction in such circumstances is highly fact specific, yet ultimately falls to be decided in line with the established American Cyanamid principles... What was the background? The dispute originates from Catalyst Housing Ltd’s 2014 purchase of land and buildings in Southall from Maypole Dock Ltd. On...

R (oao Sheakh) v London Borough of Lambeth [2021] EWHC 1745 ( Admin) What are the practical implications of this case? This judgment has both procedural and substantive consequences for TROs and PSED. The claimant initially moved to contest several orders; some challenges were lodged within the six-week window for a statutory review under RTRA 1984, Sch 9, while others fell outside that period. By the time the matter reached Mr Justice Kerr, there were effectively two distinct proceedings. The first, chronologically, was an application seeking permission to bring judicial review, presented as a standard judicial review permission bid. The second was a valid statutory review of other ETOs filed within time. No permission is required when a statutory review is brought under RTRA 1984, Sch 9. Although RTRA 1984, Sch 9 bars challenges to an order save through its own...

Parker v The National Trust [2021] EWHC 1589 ( QB) What are the practical implications of this case? This decision reinforces a risk-led methodology when facing potential dangers that may or may not occur. The key question is the probability of the hazard—in this instance, a tree—inflicting injury or damage. A danger beside a path in a busy urban park carries a wholly different level of risk to one located where people rarely pass, for example within woodland. It was sensible for the defendant to run a regime that checked zones with the greatest footfall, such as the car park and play areas, more often, while quieter locations were inspected less frequently. That approach enabled the defendant to apportion resources efficiently and to prioritise remedial measures according to where risk was judged to be highest. In contrast, the court expressly rejected a...

Paul Lowenstein QC- Twenty Essex Josephine Davies- Twenty Essex On 24 June 2021, Mr Justice Adam Johnson dismissed an appeal from the Chief Master in the Chancery Division, delivering a considered judgment that declined to apply section 32 of the Limitation Act 1980 ( LA 1980) to extend time sufficiently for the claim form to have been issued before expiry. He held that, at the point of an earlier fraud action started years before, the claimant already knew enough facts to plead a case against the defendant. The court decided that uncovering a small number of extra documents later did not alter the reality that the claim could have been brought sooner. The appeal ruling is a striking illustration of the court cutting through dense factual material to pinpoint the few salient matters needed to determine when, with reasonable diligence, the claimant could have...