Legal News

Secretary of State for Transport v Arriva Rail East Midlands Ltd ( Arriva) [2019] EWCA Civ 2259 (18 December 2019)) What are the practical implications of this case? This Court of Appeal ruling, which confirms the High Court’s earlier judgment, offers firm guidance on the distinct character of the Francovich damages cause of action and the limitation deadlines governing it. While confined to Regulation ( EC) 1370/2007 (the Railway Regulation), its reach is broader for breach of statutory duty claims and Francovich actions, so long as the latter persist within UK law. Where a claimant considers judicial review to contest a decision said to infringe EU law, the ordinary three-month period governs that challenge. However, for private law claims— even if public law grounds based on EU law are ongoing or echoed in Part 7 proceedings—the relevant time bar is the domestic...

High Court provides guidance on the court’s approach to interim applications under section 5 of the Inheritance ( Provision for Family and Dependants) Act 1975 ( Weisz v Weisz & Ors) Weisz v Weisz & Ors [2019] EWHC 3101 ( Fam)) What are the practical implications of this case? With few reported decisions under I( PFD) A) 1975, s 5, this judgment delivers practical direction on the manner in which the discretion should be exercised. Francis J confirmed that the wording in I( PFD) A) 1975, s 5—‘immediate need of financial assistance’—ought not to be viewed as broadly akin to the discretion applied under section 22 of the Matrimonial Causes Act 1973, where, in some instances, Maintenance Pending Suit orders may cover items extending beyond what would properly be regarded as immediate necessities. The test under I( PFD) A) 1975 is narrower, and the...

Saatchi v Gajjar & Anor [2019] EWHC 3472 ( Ch) (12 December 2019) What are the practical implications of this case? Where a shareholder seeks permission to pursue a derivative claim alleging a director’s diversion of company assets, the court applies the criteria in section 263 of the Companies Act 2006 ( CA 2006). It will scrutinise any contention that members sanctioned or ratified the alleged misuse of assets, requiring clear and unequivocal proof on that point (which was absent here). Significant emphasis is placed on whether a person complying with CA 2006, s 172 (the duty to promote the company’s success) would prosecute the claim. That entails evaluating the merits of the case, but without conducting a mini-trial. Accordingly, the court undertook a careful review of the specific instances of alleged misappropriation and the director’s explanations for them. Another highly material...

Miller and others v Ministry of Justice [2019] UKSC 60, [2019] All ER ( D) 83 ( Dec) What are the practical implications of this case? The Supreme Court’s ruling is a clear success for Mr Miller and the other Appellants, and appears to have finally drawn to a close the O’ Brien litigation, which began more than a decade ago. The Appellants’ PTWR claims were held to be in time, and they—alongside many judges in comparable circumstances—will now have their pensions assessed by reference to all service both before and after 7 April 2000, the deadline for implementing the Part-time Workers’ Directive into UK law, in line with the Court of Justice’s decision in O’ Brien v Ministry of Justice (note that a separate Supreme Court consent order dated 28 October 2019 dealt with the pre/post 7 April 2000 service point—see further below). The...

Brake v Guy [2019] EWHC 3332 ( Ch) What was the background? This judgment addresses two applications. The first sought an injunction preventing three respondents (the Guy Parties) from using material obtained from an email account said to have been wrongly accessed by them (the documents application). The second asked for a declaration that the opposing parties (the Brakes) could not rely on legal professional privilege over various documents within that account where they were in furtherance of an unlawful scheme (the LPP application). Both applications formed part of broader proceedings between the Guy Parties— Dr Geoffrey Guy, the Chedington Court Estate Ltd and Axnoller Events Ltd—and the Brakes, Mrs Nihal Brake and Mr Andrew Brake. The dispute concerned two properties, a farm and a cottage; the Brakes had occupied the cottage, and its title had become the subject of serious issues within...

Words in credit report held to be not defamatory at common law ( Triaster Ltd v Dun & Bradstreet Ltd) Triaster Ltd v Dun & Bradstreet Ltd [2019] EWHC 3433 ( QB), [2019] All ER ( D) 71 ( Dec) What are the practical implications of this case? This case concerned an uncommon defamation claim arising from a credit report, which Triaster said implied its creditworthiness was poor. While recalling the near 200-year-old authority Whittington v Gladwin, that imputations of present or future insolvency are defamatory—and noting that case alleged not merely a risk but an inevitability—the court concluded, unsurprisingly, that most complained-of material simply reported fact. The only statement that was not factual was an expression of opinion. What was the background? Triaster, a provider of business process solutions, brought a defamation claim against the defendant ( Bradstreet), which supplies data analytics, credit reports and other...

Dickinson v Nal Realisations ( Staffordshire) Ltd [2019] EWCA Civ 2146, [2019] All ER ( D) 25 ( Dec) What are the practical implications of the judgment? This ruling yields three principal takeaways, mirroring the questions the Court of Appeal was required to resolve. To begin, the Court of Appeal determined that CA 2006, s 1157—which permits judicial relief for directors from liability ‘in proceedings for negligence, default, breach of duty or breach of trust’ where they have acted honestly and reasonably—can, at least in principle, also be invoked in a claim seeking the return of company assets transferred without authority. That is the decision’s most consequential aspect. It broadens the protective reach of s 1157 to encompass proprietary causes of action. Accordingly, directors can seek relief where, for instance, they have moved company property to themselves under an honest and...

Quinn Infrastructure Services Ltd v Sullivan and others [2019] EWHC 2863 ( Comm) What are the practical implications of this case? The decision turned predominantly on the particular facts and depended heavily on specialist opinion, yet it clearly flags points practitioners must watch carefully when counselling clients on arrangements. Loose, undocumented understandings can create difficulties if not properly recorded and memorialised. It further underlines the core rule that a party cannot recover for a loss it has not actually sustained. Lastly, it exemplifies the difficulties posed by so-called ‘blind alley’ efforts on prototypes that were never deployed or delivered, and, in practice, the task of assessing what amounts to a fair fee for work performed. What was the background? The claimant provided engineers to BT. The first defendant acted as a de facto director and was subsequently thereafter made managing director of the claimant’s telecoms arm. The second...

Outcome 11.3 Outcome 11.3 of the former 2011 code (old code) in the 2011 SRA Handbook on contract races is not carried across into the two new codes under the new SRA Standards and Regulations. Is any other provision in the new codes relevant to contract races? Yes. Principles 2 (maintaining public trust and confidence), 4 (acting honestly) and 5 (acting with integrity) in the Standards and Regulations almost certainly encompass contract races, and paragraphs 1.2 (not taking unfair advantage) and 1.4 (not misleading) in the ' Maintaining trust and acting fairly' section of the new codes would bear upon contract races in property transactions. Contract races can be ethically complex, arising where a property seller instructs their solicitor to proceed with more than one prospective buyer. In such circumstances it is common for attempts by the selling client or a bidder to secure a...

R (on the application of Bond) v Vale of White Horse District Council [2019] EWHC 3080 ( Admin) What are the practical implications of this case? The Planning Court’s ruling is tightly tied to the particular facts. The issue arose because a change to the green belt policy within a local plan—introduced to mirror the recommendations of an inspector undertaking an independent examination—was not translated onto the adopted proposals map. The map failed to reflect the inspector-led modification carried through the plan-making process, leaving a mismatch between policy text and mapping outputs. That said, the judgment usefully reiterates that an adopted policies map is not a development plan document for the purposes of the Planning and Compulsory Purchase Act 2004 ( PCPA 2004). A policies map, once adopted, is a local development document and sits outside the local plan itself. Moreover, a policies map only needs to be...

Re Moss Groundworks Ltd [2019] EWHC 3079 ( Ch) (10 September 2019), [2019] All ER ( D) 91 ( Sep) What are the practical implications of this case? The court will not entertain an administration application designed to enable a pre-pack sale to existing management where the evidential foundation is so weak that it triggers reasonable doubts about the propriety of the pre-pack. It will be an uncommon instance in which the court proceeds where, as occurred here at an initial hearing before Snowden J, the supporting material falls markedly short. In particular, the court was not satisfied because: there was a pronounced disparity between the apparent value of book debts and work in progress and the consideration being offered for those assets; the marketing of the business appeared to have been extremely truncated; and, on its face, the marketing was not only abbreviated but also...

Re London Bridge Entertainment Partners illustrates how choices that appear trivial in solvency can become pivotal on insolvency. In this instance, opting to ‘pay first, query later’ from the rent deposit meant the landlord effectively relinquished the priority it might otherwise have enjoyed for those rent sums. The judgment also confirms that the scope of provable debts is interpreted broadly, whereas the category of administration expenses is construed narrowly. Written by Samuel Parsons, barrister at Guildhall Chambers. Re London Bridge Entertainment Partners LLP (in administration) [2019] EWHC 2932 ( Ch), [2019] All ER ( D) 96 ( Nov) What are the practical implications of this case? This decision underscores the caution required when a commercial counterparty cannot pay. It was common ground that, had the rent for the period of the administrators’ beneficial retention remained outstanding, it would have constituted an expense of the...

Aldford House Freehold Ltd v Grosvenor ( Mayfair) Estate and another [2019] EWCA Civ 1848, [2019] All ER ( D) 17 ( Nov) What are the practical implications of this case? This decision addressed collective enfranchisement of a building’s freehold by qualifying tenants of flats under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). An initial notice under section 13 to acquire the freehold must be served by qualifying tenants representing at least half of the flats in the building. The notice must also set out the names of all qualifying tenants of flats within the premises described ( LRHUDA 1993, s 13(3)(d)); if not, the notice is ineffective—see Natt v Osman [2015] 1 WLR 1536, [2014] EWCA Civ 1520. It is therefore essential to determine what does, and does not, amount to a ‘flat’ for these purposes. This can be...

The case is UK Acorn Finance Ltd v Markel ( UK) Ltd , case number CL-2018-000236, in the Queen’s Bench Division of the High Court of Justice of England and Wales. By an order made on 1 November 2019, High Court Judge David Waksman required Markel ( UK) Ltd to provide UK Acorn Finance Ltd with copies of policies issued to surveyors undertaking sub-prime work during 2012 to 2014. Markel is also obliged to disclose materials evidencing its decision-making process for underwriting those policies, particulars of any indemnity claims brought by sub-prime lenders, and a witness statement from its DAC Beachcroft lawyer, according to the......

Priyanka Shipping Ltd v Glory Bulk Shipping Pte Ltd [2019] EWHC 2804 ( Comm), [2019] All ER ( D) 176 ( Oct) What are the practical implications of this case? This judgment neatly distils the rules on enforcing negative covenants through injunctive relief. It cautions parties against attempting to sidestep such restrictions by paying damages instead. The court emphasised the strong policy of holding parties to their bargains, and the authorities confirm that a defendant cannot simply buy the ability to trespass on the claimant’s contractual rights by paying compensation. The court also recapped the framework for negotiating damages (formerly termed Wrotham Park damages), concluding that such awards arise only where the breach causes the loss of a valuable asset that is created or safeguarded by the right infringed, as opposed to the contractual right in the abstract. What was the...

Promontoria ( Henrico) Ltd v Jeavons and another [2019] Lexis Citation 396 What are the practical implications of this case? There is an expectation that courts will avoid an expansive reading of CCA 1974, s 140A. The statute affords judges considerable latitude when evaluating the character of relationships; it does not set out specific factors for them to consider. In this matter, the judge declined to find unfairness. He determined that the loan facility offer’s terms and conditions made it plain that the defendants were required to satisfy themselves that the facilities were appropriate for their purposes and that they......

Re JPF Clarke ( Construction) Limited (in a company voluntary arrangement); Maze Inns Ltd (in liquidation) and others v Hunt and others [2019] Lexis Citation 379 What are the practical implications of this case? It is vital that creditors substantiate the amounts set out in their proofs of debt, whether those proofs are to be assessed by an insolvency practitioner ( IP)—who performs a quasi-judicial function—or by the court on a challenge to an IP’s decision. Providing adequate evidence to the IP at the outset may remove the need to contest an allegedly erroneous determination in court. In many situations, the relevant events occurred years before the point when a creditor must persuade an IP or the court of an insolvent company’s liability, and the quantum of that liability. Accordingly, contemporaneous records are generally the most persuasive material, and clients should be...

Jana Petruchová v FIBO Group Holdings Limited C-208/18 What are the practical implications of this case? The First Chamber has affirmed that the notion of 'consumer' in Articles 17–19 of Regulation ( EU) 1215/2012, Brussels I (recast), is broad enough to cover users of online trading platforms dealing with financial instruments. Such users, provided they are not acting in a professional role, may bring proceedings before their domestic courts, notwithstanding a contractual jurisdiction clause to the contrary. The Court of Justice’s decision not to narrow the concept of consumer means that even highly knowledgeable users or high-net-worth individuals are captured and may rely on the regime’s consumer safeguards, as long as they persuade the court they were not using the platform in the pursuit of their trade or profession. This applies regardless of wealth, trading expertise, or status. What was the...

Brown v Metropolitan Police Commissioner and another ( Equality and Human Rights Commission intervening) [2019] EWCA Civ 1724, [2019] All ER ( D) 124 ( Oct) What are the practical implications of the judgment? The meaning of the CPR 44 QOCS regime is now fixed: in mixed claims a trial judge may invoke the discretion in CPR 44.16(2)(b), and the mere presence of a personal injury head will not secure automatic costs protection. Permission to appeal to the Supreme Court was refused. Any further challenge is improbable, as the Court of Appeal—anticipating that prospect—went beyond what was strictly required to dispose of the appeal (see paras [60]–[70]), addressing access to justice, certainty and deterrent effect. A renewed appeal is also unlikely since, given the fact-sensitive, case-by-case nature of the discretion, it is difficult to see how the Court of Appeal’s guidance could be refined or...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...