Legal News

Local authority v CD & others ( Rev 1) [2020] EWHC 3298 ( Fam) What are the practical implications of this case? This judgment is a stark wake-up call to local authorities to conduct proceedings with fairness, objectivity and neutrality, while upholding transparency through full and frank disclosure. That obligation is even more acute where a child remains in foster care awaiting the final hearing. In this matter, the court criticised the authority’s deliberate yet ill‑conceived decision-making and its failure to provide the court with timely disclosure—conduct which, at best, evidenced a complete absence of judgment or professionalism. The court was unequivocal that this biased stance resulted in the child staying in a harmful placement for at least nine months longer than necessary. Crucial facts were disclosed far too late. The case underlines the necessity of close supervision of social...

Riley v Sivier [2021] EWHC 79 ( QB) What are the practical implications of this case? This judgment offers a practical benchmark for the bare minimum particulars needed to run a truth defence in a libel claim. The pleaded case relied on social media threads that required reading in their entirety. They were to be considered in full, rather than taken in isolation or fragment by fragment. Assertions that Ms Riley participated in, and incited, Twitter harassment of a 16-year-old were not borne out by the ‘straightforward’ and ‘civil’ interactions. The court dismissed the notion that a public figure with a sizeable audience, like Ms Riley, is obliged to stop followers from abusing another user on Twitter. That will reassure high-profile users who trade in forthright debate on the platform. The judgment sets out, with clarity, how these principles apply to Twitter, and they ought to be...

As outlined in the editorial note to the Guide, this seventh edition is a comprehensive overhaul and reflects developments since the previous edition, including: the roll-out of electronic working and filing in the Central Office of the Queen’s Bench Division at the Royal Courts of Justice, through the CE- File digital court file and management system amendments to CPR 53 and CPR PD 53 relating to the Media and Communications List changes arising from Brexit and the close of the transition period under the UK Withdrawal Act revisions to the contempt regime updates to the enforcement regime For more information, see: What are the key changes? The following summarises the principal changes practitioners should note: Electronic filing The revised Guide introduces a brand-new Chapter 3 addressing electronic filing and codifying the compulsory use of CE- File for legally...

Hanger Holdings Ltd v Perlake Corp SA and another [2021] EWHC 81 ( Ch) What are the practical implications of this case? This decision marks the first time a UK court has expressly recognised domain names as intangible personal property. In OBG Ltd v Allan [2007] UKHL 21, Lord Hoffmann indicated he saw no obstacle to treating domain names as intangible property, though those observations were merely obiter. HHJ Hacon’s reasoning on why domain names amount to intangible personal property was brief, but he drew support from Lord Hoffmann’s remarks and was influenced by judicial statements in other jurisdictions, including Canada. Domain names are obtainable through accredited registrars, typically requiring registrants to agree to terms and conditions in a registration service agreement. Ongoing renewal charges are paid to keep the domain and any ancillary registrar services in place, as well as any...

Burns v Burns and others [2021] EWHC 75 ( Ch) What are the practical implications of this case? This judgment illustrates how the approaches in Ivey v Genting Casinos ( UK) Ltd [2017] UKSC 67 and Group Seven Ltd (a co incorporated under the laws of Malta) and another company v Notable Services LLP and another and other cases [2019] EWCA Civ 614 can be applied in practice at first instance, where a claimant seeks to secure a dishonest assistance finding within the constraints of the summary judgment process. It also emphasises that, in a suitable case, exposing trust assets to risk by a non‑trustee—for example, an operator of an unregulated investment scheme which, on a proper reading of the relevant documentation, involved unauthorised use—may amount to dishonest behaviour. That assessment turns on the defendant’s actual knowledge of the underlying facts and the court’s...

Adams v Jones [2021] UKUT 9 ( LC) What are the practical implications of this case? This ruling carries significant weight for agricultural law specialists, notably those advising on Welsh holdings. Under the AHA 1986, any bid to succeed to an AHA-protected tenancy must be lodged within three months of the former tenant’s death, and that window is not capable of extension. Those who may apply are the deceased’s surviving close relatives whose principal means of livelihood during the seven years preceding death derived from agricultural work carried out on the holding. Where an applicant files in time but identifies the wrong respondent landlord, the defect can now be remedied by substituting the correct landlord even after the three‑month limit has passed, notwithstanding the lack of any tribunal provision comparable to CPR 19.5 concerning adding parties outside a limitation period. The judgment further...

Martin and another v Kogan and others [2021] EWHC 24 ( Ch) What are the practical implications of this case? The judgment represents the latest chapter in the parties’ protracted litigation. At the retrial, Mr Justice Meade applied the Court of Appeal’s formulation of joint authorship in Kogan v Martin and others [2019] EWCA Civ 1645. He likewise examined the legal framework for evaluating witness testimony, including the overall approach to the dependability of witnesses’ recollections and the comparative weight to be placed on memory as opposed to contemporaneous records. In that context, he addressed the effect of Gestmin SGPS SA v Credit Suisse ( UK) Ltd [2013] EWHC 3560 ( Comm), [2013] All ER ( D) 191 ( Nov). He further considered how the balance of the remaining evidence should be assessed where a portion of a witness’s account is rejected as untrue. In...

When can a developer drain onto neighbouring land without permission? ( Bernel v Canal & River Trust) Bernel Ltd v Canal and River Trust [2021] EWHC 16 ( Ch) What are the practical implications of this decision? The riparian claim and the prescriptive claim presented quite different factual and legal issues. Both aspects of the dispute will be of real interest to property practitioners. To determine the riparian issue, the judge had to set out and apply, carefully and in some detail, the law on when an intermittent or occasional flow is sufficient to amount to a natural watercourse, and when it is not. Because extensive rights accompany the presence of a natural watercourse on or adjoining land (the riparian rights), this boundary is legally significant, and not always straightforward to draw in practice on the ground. Although the...

Onwude v Dyer and others [2020] EWHC 3577 ( QB) What was the background? This defamation claim arose from articles posted on the BMJ’s website that reported a GMC disciplinary panel’s decision concerning the claimant, Mr Onwude, together with Mr Onwude’s ensuing High Court appeal about the same decision. The defendants were the journalist who wrote the report ( Ms Dyer), the BMJ’s editor ( Dr Godlee), and the journal’s publisher (the BMJ). The context of the claim focused on several charges alleging impaired fitness to practise by reason of misconduct, brought against Mr Onwude by the Medical Practitioners’ Tribunal ( MPT) Service, a statutory committee of the GMC. After the hearings, the MPT found every charge proved and imposed the penalty of erasure from the Medical Register, unless Mr Onwude used his right of appeal within 28 days. It also ordered his...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

This is a retrospective on some of the most notable corporate crime cases to reach the courts in 2020. Serious Fraud Office’s Barclays case collapses In February 2020, the Serious Fraud Office ( SFO) endured a bruising loss when a jury cleared three ex- Barclays plc directors of fraud linked to the bank’s financial-crisis fundraising, prompting doubts about the wisdom of pressing on through two trials and repeated courtroom reverses. The Old Bailey prosecution had been weakened by a series of heavy blows starting in 2018, when charges against the bank itself were thrown out. In 2019, midway through the trial of the individual defendants, the presiding judge directed the acquittal of former Chief Executive John Varley. According to Neil Williams, legal director at Rahman Ravelli, warning signs should have sounded once the Court of Appeal backed the ruling that the bank should not be...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...

O’ Neil v Holland [2020] EWCA Civ 1583 What are the practical implications of this case? Lord Justice Henderson confirmed that proof of detrimental reliance is a core precondition for a common intention constructive trust. That requirement had earlier been articulated in Grant v Edwards [1986] Ch 638 and was treated as assumed on appeal in Curran v Collins [2015] EWCA Civ 404, [2016] 1 FLR 505. O’ Neill v Holland provides the most explicit recent statement that a party must establish detrimental reliance to demonstrate the existence of such a trust. It also stands as authority that appealing to unconscionability alone will not suffice, and that the question of detrimental reliance is judged objectively. Advisers considering whether a common intention constructive trust arises must therefore pinpoint the exact basis on which the claimant acted, to their disadvantage, in reliance on the shared...

The first instance decision has been taken to the Supreme Court by the FCA, all but one of the insurer parties, and the Hiscox Action Group as interveners. The four-day appeal was heard in mid- November 2020. Should the judges be broadly aligned, a ruling may issue before Christmas; otherwise, early 2021 is anticipated. The Supreme Court’s judgment could finally determine how far the representative sample policies respond to coronavirus ( COVID-19) business interruption losses. For policyholders with business interruption cover on other wordings not included in the test case, however, the position may remain less certain. Traditional business interruption policies Policyholders with traditional business interruption insurance—covering loss from damage to insured property—were likely advised that the prospects of coronavirus cover were poor. While coronavirus undoubtedly caused business interruption, it did not do so by causing damage to property. The prevailing view that such...

What are the practical implications of this case? This decision is important for prosecutions about enforcement notices where the charge is that a defendant failed to comply with a notice in circumstances where an Article 4 Direction is in place removing permitted development rights. The court held that a defendant cannot require the prosecution to prove the existence of the relevant Article 4 Direction, because that question concerns the validity of the enforcement notice itself and, under TCPA 1990, s 285, may only be pursued by way of an appeal to the Secretary of State under TCPA 1990, s 174. What was the background? Mr Zahar repainted the outside of his home a dark grey and replaced wooden framed windows with upvc windows. The property was within a conservation area in which permitted development rights for these alterations had been withdrawn by an Article 4...

Mathewson v Crump and another [2020] EWHC 3167 ( QB) What are the practical implications of this case? The decision underscores the significance of timing and, crucially, the extent of control when deciding if a defendant is an occupier for the purposes of the OLA 1957. It cautions against conflating ownership with occupation. Control remains the key indicator of occupation and must be assessed within the factual context, which includes, among other things, who grants permission to go onto the property. Procedurally, the matter was notable because the court directed a split trial—liability and then quantum—on the first day (at paras [8]–[9]), apparently, at least in part, to give the claimant acting in person an opportunity to put his affairs in order. The judge observed that the claimant ‘would very much benefit from legal advice and representation when it came to arguing the quantum part of the...

Why did you set up the Arbitration in Finance project, and what do you hope to achieve? KPB: The initiative unites the Institute for Banking Law with the University of Cologne’s Centre for Transnational Law. We set out to assess the potential of alternative dispute resolution ( ADR) — in particular arbitration and mediation — to secure more time- and cost‑efficient outcomes in business‑to‑business conflicts within banking and finance. We also aim to deepen market understanding of arbitration’s benefits, especially as financial markets and products become ever more complex and sophisticated... Why is arbitration a good solution for solving disputes in the financial services sector? KPB: Banks and other financial institutions have traditionally been cautious about adopting arbitration and related ADR mechanisms. However, many of the grounds for that caution no longer hold true. This is evidenced, for example, by the 2016 Report on...

Clydesdale Financial Services Clydesdale Financial Services, trading as Barclays Partner Finance, ought to return interest levied on loans arranged for timeshare operators Azure Resorts and Resort Properties, according to a court submission dated 19 November 2020, the claimants assert. They also seek to prohibit Barclays from imposing any future interest and to restrain it from taking steps to enforce the loan terms, the filing states. The claim explains that Barclays Partner Finance acted as the banking partner to the timeshare businesses and underwrote finance agreements marketed to holidaymakers. The claimants argue that affordability checks were not conducted amid lengthy, high-pressure sales presentations lasting hours. Each claimant agreed to purchase defined use of holiday resorts at specific periods during the year. The court papers do not reveal the names or locations of the resorts. Lawyers for the claimants described them as ‘generally...

Robert Tantular v AG [2020] JCA234 What are the practical implications of this case? A saisie operates as a freezing mechanism that the Attorney General may seek in a variety of circumstances, including when acting for the government of a country or territory outside Jersey while an external confiscation order is awaiting registration. The authority to grant a saisie stems from Articles 15 and 16 of the Proceeds of Crime ( Jersey) Law 1999, as adapted by the Proceeds of Crime ( Enforcement of Confiscation Orders) ( Jersey) Regulations 2008 (the “ Modified Law”). Under Article 16(4)(b) of the Modified Law, the court may restrain any specified person from dealing with any realisable property that they hold, whether or not the assets are described in the order. The issue on appeal mirrored the question at first...

One Plus Technology ( Shenzhen) Co, Ltd and other companies v Mitsubishi Electric Corp and another company [2020] EWCA Civ 1562 What are the practical implications of this case? Courts acknowledge that, in confined and exceptional situations, a party’s internal commercial staff should have their access curtailed. Judging whether disclosed material warrants a confidentiality club for case management is a taxing call for lawyers representing clients with sensitive interests. Clients often urge their teams to apply the most stringent ‘external eyes only’ tier, a stance that is not invariably defensible. This ruling identifies significant (though not exhaustive) factors to steer the treatment of confidential disclosure, including: the burden rests on the disclosing side to show that the ‘external eyes only’ label is justified preventing the opposing client from seeing particular records will be unusual and hinge entirely on the case’s specific...