Legal News

This notice revises the November 2018 edition, incorporating amendments to the rates of...

Whittington Hospital NHS Trust v XX [2020] UKSC 14, [2020] All ER ( D) 05 ( Apr) What are the practical implications of this case? For those practising in clinical negligence, the ruling carries clear yet significant ramifications for day-to-day case assessment. In infertility cases, claimants may, in certain, defined situations, recover the expenses of commercial surrogacy by way of damages. Lawyers representing both claimants and defendants must now deepen their grasp of surrogacy law within the UK and in other jurisdictions, from a comparative perspective, to properly evaluate whether this category of loss is recoverable. This decision is a helpful starting point, with Lady Hale carefully guiding readers through the pertinent law in a complex area. For family practitioners, although the matter was a civil tort claim, Lady Hale’s judgment—among her final decisions on the bench—serves as a powerful critique of the current...

Andreewitch v Moutreuil [2020] EWCA Civ 382, [2020] All ER ( D) 108 ( Mar) What are the practical implications of this case? Two practical consequences emerge from this judgment. It converts the right to silence in contempt proceedings from a matter of principle to a mandatory procedural step. Every alleged contemnor, and particularly anyone without legal representation, must be cautioned that they are under no obligation to give oral evidence (para [16]). The right operates as a safeguard available to all, mirroring the position in criminal proceedings (para [8]). The ruling stresses the fundamental nature of that right. A failure to alert an alleged contemnor cannot be dismissed as a mere technical slip (para [17]); it is a procedural defect that may result in real injustice. That risk is amplified for litigants in person, irrespective of intellect or...

Beaumont Business Centres Ltd v Florala Properties Ltd [2020] EWHC 550 ( Ch) What are the practical implications? Rights of light are a significant species of property right, and the courts have shown a readiness to uphold them, including by granting injunctions where required. Where relief is sought before any potentially infringing works begin, the courts will commonly grant the necessary order. This judgment confronted, and resolved, trickier issues: Whether the court will still step in when the works are already complete by the time of the hearing; and What the position is if, by then, the offending premises are occupied by a tenant. The case is noteworthy given the uncertainty that has prevailed since the Supreme Court’s decision in Coventry v Lawrence [2014] AC 822, which rejected the rigid use of the ‘good working rule’ for granting injunctions to restrain...

Reid v Price [2020] EWHC 594 ( QB) What are the practical implications of this case? This decision is a helpful authority on quantifying damages for claims involving disclosure of private information, breach of undertakings, breach of confidence, and the misuse of private information. It addresses how compensation should be assessed across overlapping privacy-related wrongs. The principles articulated in the judgment merit close attention by practitioners advising on likely awards in comparable situations, particularly since, in Warby J’s own phrase, ‘the authorities are not very numerous’. Warby J held that Mr Reid succeeded on four distinct causes of action: breach of contract, namely breach of express undertakings provided by Ms Price in 2011 that the relevant material would not be revealed unjustified breach of Mr Reid’s confidence misuse of private information concerning Mr Reid breach of statutory duty under section 4(4) of the Data...

Poste Hotels Ltd v Cousins [2020] EWHC 582 ( Ch) The central question was whether the defendant enjoyed a parking easement giving her the liberty to leave a vehicle in Church Court, Stamford. The County Court judge found that she had acquired such a parking right by prescription, and the claimant challenged that conclusion on appeal. What are the practical implications of this case? The ruling restates key principles on prescriptive easements that advisers should note: Where there are two plausible lawful bases for the use, and the pattern of enjoyment fits either explanation equally, use as of right is not made out A prior grant of a right of way across the car park did not prevent the car park owner from being capable of granting a (hypothetical) right to park, which would operate subject to the earlier right of way;...

The Lloyd’s Market Association ( LMA) has issued a policy provision for its members, ensuring policyholders’ cover persists past a set renewal date when the Lloyd’s marketplace is unreachable and Emergency Trading Protocol fails. The provision is intended to ensure that......

Pillmoor (as trustee of the bankruptcy estate of Mohammed Erfan Miah) v Miah and another [2019] EWHC 3696 ( Ch), [2019] All ER ( D) 211 ( Oct) What are the practical implications of this case? This decision offers practical direction on claims where one spouse seeks a beneficial stake in a property not held in their legal name. The judgment clarified the threshold for proving a common intention constructive trust, identifying what will, and will not, suffice. The party asserting the interest must adduce evidence of either an explicit arrangement to share the beneficial ownership, or facts from which such an accord can properly be inferred. Accordingly, proof should address matters that bore on ownership and family finances, including: discussions between the spouses that touched on the question of ownership; the role each spouse played in the...

Dowman Imports Limited v 2 Toobz Limited [2020] EWHC 291 ( Comm) What are the practical implications of this case? Unjust enrichment This ruling affirms and refines the approach to restitutionary claims when services are supplied in anticipation of a contract being finalised: Four core questions must be addressed: has the defendant obtained a benefit? was that benefit gained at the claimant’s expense? was the enrichment unjust? are any defences available? If those questions are answered in the claimant’s favour, the court will determine the value of the unjust enrichment by objectively assessing the market value or price of the services, akin to a quantum meruit. The defendant might try to show that they personally valued the services below market rate (subjective devaluation) to cut down or defeat the claim. That attempt fails if the claimant proves either that: the benefit was...

Man Ching Yuen v Landy Chet Kin Wong , First-tier Tribunal ( Property Chamber), 2020 (ref 2016/1089) What are the practical implications of this case? Every day, innumerable deeds are completed across the country. By virtue of section 1(3) of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989), a deed must be signed in the presence of a witness who attests the signing. Yet what amounts to presence? Could witnessing occur via Skype, Facetime, Whats App or similar platforms? In addressing that issue, the FTT indicated, without a definitive ruling, that, under present law, whether the phrase in LP( MP) A 1989, s 1(3) ‘in the presence of a witness’ can be met via video link admits more than one arguable view. The tribunal’s indication fell short of a determination, acknowledging that the statutory wording, as it stands, could...

ND v LD [2019] EWHC 3639 ( Fam) What are the practical implications of this case? It is apparent that the court may adjudicate disputes over funeral and burial arrangements, although such matters are infrequent in practice. For deceased adults, the issue typically emerges only on intestacy, as provisions are ordinarily included in a Will to settle any disagreement and to guide arrangements. Children, however, always die intestate because only adults can make a valid Will, so the limited authorities on this topic have mainly concerned deceased children. There is, nevertheless, conflicting High Court authority on the legal route by which these disputes should be determined. In Re JS ( Disposal of Body) [2016] EWHC 2859 ( Fam), Peter Jackson J decided that either SCA 1981, s 116 or the High Court’s inherent jurisdiction could generally be deployed, though that case was...

At Croydon Crown Court, Tommy Adams has been directed to return £1,243,270.75m by 26 May 2020 for his role in a money-laundering operation he ran with his associates. If......

Gaughran v United Kingdom ( App No 45245/15) [2020] ECHR 45245/15 What are the practical implications of this case? Confirming Lord Kerr’s dissent in the Supreme Court ( Gaughran v Chief Constable of the Police Service of Northern Ireland [2015] UKSC 29), [2015] 2 WLR 1303, the ECt HR concluded that the policy amounted to an unjustified interference with Mr Gaughran’s Article 8 rights. The court did not, though, propose any new overarching principles for such policies. It remains apparent that evaluation is fact dependent; the more calibrated and precise a policy, the more likely it is to withstand examination. The ECt HR’s divergence from the Supreme Court stemmed largely from its reliance on slightly different factual foundations. Notably, in assessing proportionality under Article 8, the ECt HR placed significant weight on the lack of adequate procedural safeguards allowing an individual to apply for...

Filatona Trading Ltd and another v Navigator Equities Ltd and others; Danilina v Chernukhin and others [2020] EWCA Civ 109 What are the practical implications of this case? If you wish to be certain that the individual named in the agreement is the sole true counterparty, the contract must deploy clear, unequivocal wording that shuts out any principal from relying on the rights and remedies within it. Standard form clauses to this effect are identified at para [90] of the judgment. Heightened caution is required where there is not only a principal, but one who is both known and disclosed. Where a party is fully aware that the signatory acts as a nominee or agent, any clause aimed at excluding that principal must be expressed with particular clarity, because such wording works against the strong common law presumption that parties are not to be treated as...

Tim Sp A— Direzione e coordinamento Vivendi SA v Consip Sp A, Ministero dell’ Economia e delle Finanze Case C-395/18 What are the practical implications of this case? General implications This ruling is expected to trigger reconsideration of national procurement laws across EU Member States that impose automatic, rather than discretionary, exclusions. Under Article 57(4) of Directive 2014/24/ EU, contracting authorities may choose to bar tenderers shown to be unreliable—for example due to breaches of environmental or social duties, including accessibility rules for disabled persons ( Article 57(4)(a)). Member States may transpose these grounds with differing levels of rigour, provided the conditions align with general EU law (paras [33] and [34]). The Court of Justice delineated the scope of that discretion by confirming that Member States may require contracting authorities to exclude bidders for infringements of social and labour law committed by their nominated...

Bioconstruct Gmb H v Winspear and another [2020] EWHC 7 ( QB) What are the practical implications of this case? The ruling rekindles discussion about optimal methods for completing a closing with pre-executed pages, particularly where multiple parties and signatories are involved and where amendments or corrections are made to previously circulated written contracts. The court’s analysis, relating to a deed that was both signed and acted upon by the party seeking to rely on it, yet held invalid and unenforceable, underscores the need for caution when attaching pre-signed signature pages to deeds. In this respect, the judgment draws attention to a circumstance not expressly covered by the Law Society of England & Wales’ Practice Note, ‘ Execution of documents by virtual means’ (16 February 2010). That guidance identifies Koenigsblatt v Sweet as the leading authority on ratification for written...

Wright v Granath [2020] EWHC 51 ( QB) What are the practical implications of this case? This matter concerns the operation of the lis pendens (‘related actions’) rule in Article 27 of the 2007 Lugano Convention, and, in particular, the proper criterion for assessing whether a libel claim issued in England and Wales involved the same cause of action as Norwegian proceedings seeking a declaration that the defendant to the libel claim was not liable to pay damages in respect of the publication impugned in the English suit. The court recognised that this was a novel point regarding the application of lis pendens to defamation. Most authority in this sphere deals with contractual disputes, and the claimant maintained it had no application here because of the parties’ ‘asymmetrical’ positions in a tort claim (addressed further below). Confirming that the lis pendens doctrine is not...

At Woolwich Crown Court in London, Edward Camborne De Lucy was directed to repay £33,410 to Aviva, together with £6,590 in court costs. On 14 January 2020, the court found him guilty of one count of fraud by false representation and a separate count of making or supplying an article for use in fraud. He also received an 18-month sentence, suspended for 18 months, and was instructed to pay a £114 victim surcharge. The case was brought before the court by the police force’s insurance fraud enforcement department following a complaint from the insurer regarding the case......

Original news Mr T( PO-28491)/ Mr T( PO-28218)—14 November 2019 Summary The Pensions Ombudsman rejected a grievance alleging a Self- Invested Personal Pension ( SIPP) improperly levied an £800 yearly charge on pension assets valued at £1. The SIPP had pursued a speculative property investment that became distressed, though it did not go insolvent. As the investment remained active, the provider was entitled to refuse closure of the plan, since winding it up could potentially jeopardise any FSCS recovery. Under the plan rules, the provider was also permitted to raise its fees on giving notice. This matter highlights the potentially far-reaching consequences of choosing speculative investments. What were the facts? These two determinations stem from essentially the same circumstances. Mr T was a member of a SIPP. The SIPP provider was entitled to an annual management charge, which could be increased on notice to...

What are the practical implications of this case? Here, the applicant, Ms Vorotyntseva, applied for, and the High Court made, freezing orders over cryptocurrency ( Bitcoin and Ethereum) against a trading platform, Money-4 Limited (trading as Nebeus.com) ( Nebeus), with its directors. Practitioners will note the judge’s rigorous scrutiny of the technical material. Birss J held that, of two screenshots adduced, one did not show the platform still retained Ms Vorotyntseva’s Bitcoin, while the other (examined in hard copy and on an i Pad) seemed to have been manipulated so it looked as though Ms Vorotyntseva’s name appeared on a screenshot when it did not. Accordingly, Birss J had no hesitation in finding a real risk of dissipation. Crucially, the matter proceeded on the footing that cryptocurrency constitutes property. In particular, there was no disagreement that the...