Legal News

Al Sadik (also known as Al Sadek and Sadik) v Sadik [2019] EWHC 2717 ( QB); [2019] All ER ( D) 116 ( Oct) What are the practical implications of this case? This ruling is striking as one of the few authorities to grapple with DA 2013, s 9. It follows Wright v Ver earlier this year, only the second case to squarely address the wording and effect of that provision (see News Analysis: Court rules on operation of section 9 of the Defamation Act 2013 ( Wright v Ver)). In this dispute, the court examined how DA 2013, s 9 sits alongside CPR Pt 11—asking, in particular, whether a defendant who fails to use CPR Pt 11’s procedure to challenge jurisdiction thereby gives up the right to advance a jurisdictional objection under DA 2013, s 9. The court decided there is no such waiver. It...

Kensington Mortgage Company Ltd v Mallon and others [2019] EWHC 2512 ( Ch) What are the practical implications of this decision? In a recent claim for possession, the High Court dismissed an appeal against a county court’s refusal both to entertain a fresh contention first advanced by the defendant at trial and to permit a late amendment to pleadings to add that contention. The outcome is encouraging, confirming the judiciary’s resolve that litigants should know the case they must meet at trial. It equally underscores the original Civil Procedure Rules ethos of putting all cards on the table. Statements of case must be thorough, correct and precise. Simply setting out background narrative is not enough to found a legal case or allegation—the specific contention or allegation must be identified. Where a party wishes to raise a new issue or argument, it should apply to the court as...

Downe v Universities Superannaution Scheme ( USS) and another [2019] EWHC 2403 ( Ch), [2019] All ER ( D) 75 ( Sep) What was the background? Ms Downe is a member of the Universities Superannuation Scheme ( USS). Under the USS rules, a member may receive an early retirement pension on a non-reduced basis if their employment ends for redundancy. For USS purposes, redundancy is made out where a member’s employment is terminated and this is due, wholly or mainly, to the employer’s requirements for employees to carry out work of a particular kind ceasing or reducing, or being expected to cease or reduce. Ms Downe worked for the Society of College, National and University Libraries ( SCONUL) in various roles, notably in accounts and in events management, up to 16 November 2012. She had a strained working relationship with her manager, Mrs R, who joined...

Emagine Films Ltd v Mister Smith Entertainment Ltd and another company [2019] EWHC 2085 ( Ch) (30 July 2019) What are the practical implications of this case? This decision underlines how difficult it is to legislate for every eventuality in preliminary papers for complex deals, and how implied terms can be used to address unforeseen gaps. An unanticipated issue arose after the term sheet was signed: the producer declined to accept terms consistent with those originally contemplated. The problem did not lie in the term sheet anticipating further formal documentation; that feature did not, by itself, render the arrangement uncertain or ineffective. Rather, the difficulty stemmed from the producer’s refusal to agree to fundamental matters that both Mister Smith and Emagine had assumed would be accepted. In those circumstances, the court was willing to imply a term that brought the term sheet contract to an end. The...

What are the practical implications of this case? As with the rulings at first instance and on appeal, there are likely to be consequences in both the political and legal arenas. Politically, the judgment heaps considerable pressure on the PM and the government. This is an extraordinary ruling by the Supreme Court. The court concluded that the PM acted unlawfully and without adequate justification, preventing Parliament from fulfilling its constitutional roles both as a legislature and as the body tasked with holding the executive to account. It is difficult to characterise this outcome as anything other than an embarrassment for the PM. It amounts to a serious censure and, in the circumstances, it is unsurprising that there are already calls for the PM to ‘consider his position’. Parliament has been......

What is FRT and which laws presently govern it in the UK? Are there any plans for regulation? FRT is a type of biometric identification that relies on facial characteristics, typically matching them with images in a database, to confirm someone’s identity (for example, e Passport gates at airports, spotting ‘persons of interest’ on a busy street, or identifying recipients of football banning orders at a football match). While implementations vary, the usual workflow starts by detecting and capturing a face, often from CCTV footage. A recognition algorithm then normalises the captured image—adjusting size, rotation and similar factors—so it aligns with the format of images stored on a database or ‘watchlist’ of known individuals. The normalised image is statistically compared with entries on the watchlist. If the similarity score set by the FRT operator meets the required threshold, a ‘match’ is registered between the...

Discovery ( Northampton) Ltd and others v Debenhams Retail Ltd and others [2019] EWHC 2441 ( Ch), [2019] All ER ( D) 67 ( Sep) What are the practical implications of this case? Debenhams’ restructuring proceeds, with the CVA surviving strong landlord objections. The judgment offers useful clarification on CVAs: future rent liabilities can be compromised within a CVA reducing future rent under a CVA does not automatically make it unfair; the court evaluates the proposal in the round a CVA cannot alter a landlord’s right of re-entry What was the background? Six landlords brought a challenge to Debenhams’ CVA under section 6(1) of the Insolvency Act 1986 ( IA 1986). Their leases were for 30 years, with automatic rent increases for the first ten years, followed by five-yearly upwards-only reviews. Debenhams’ directors advanced the CVA to tackle...

Lamesa Investments Ltd v Cynergy Bank Ltd [2019] EWHC 1877 ( Comm) What did the court decide? Judge Mark Pelling held that Cynergy Bank was entitled to rely on a provision in its agreement with Lamesa Investments that allowed it to withhold payments without falling into default if any law, regulation or court order prevented the transfer of the sums. At the core of the dispute was a £30m loan that Cynergy Bank, then known as Bank of Cyprus UK, obtained from Lamesa Investments in December 2017, under which interest was contractually due to Lamesa Investments twice a year. The ruling records that in April 2018 the US Department of the Treasury Office for Foreign Assets Control placed Viktor Vekselberg ( Vekselberg), the owner of Lamesa Investments’ parent company, on its list of 'specially designated nationals' as part of a drive against Russian...

Amending a claim to allege breach of confidence ( Slater & Gordon v Watchstone) Slater & Gordon ( UK) 1 Ltd v Watchstone [2019] EWHC 2371 ( Comm) What are the practical implications of this case? Two principal practical consequences follow from this decision: It serves as a caution for those involved in M& A deals or litigating about them. Although exploiting every route to gather intelligence on the other side may appear commercially astute, inviting the opponent’s corporate adviser to tacitly share confidential material is arguably unlawful and may leave participants exposed to a significant claim It also exemplifies the court’s pragmatic and constructive approach when major disclosure issues arise that warrant an amendment—if persuasive arguments emerge, the court will seek to accommodate them. The familiar disapproval of late amendments did not feature in the judgment, perhaps suggesting that......

Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 ( QB) Smith v Royal Liverpool Hospitals NHS Trust [2019] Lexis Citation 89 What were the background facts to the cases? Arksey v Cambridge University Hospitals NHS Foundation Trust The claimant experienced a sentinel bleed from a cerebral aneurysm at home and attended the hospital for assessment. The defendant NHS Trust accepted that sending her home, instead of admitting her, amounted to a breach of duty. The next day she suffered a major subarachnoid haemorrhage ( SAH), collapsed, and sustained permanent brain damage. In the High Court, she contended that, because the hospital had a pre-operative protocol for SAH patients awaiting placement of a coil in the aneurysm, she should have been admitted to the ward and that protocol implemented, comprising bed rest, blood pressure monitoring and appropriate hydration throughout the period of waiting for...

What are the practical implications of the judgment? The ruling addresses three separate issues—two concerning ECROs, and a third relating to the effect of presenting a bankruptcy petition founded on an unpaid statutory demand where, without the petitioning creditor’s knowledge, an application to set that demand aside has already been lodged. On the ECRO front, the court underlines the force of CPR PD 3C, and applies it in clear terms. Where a litigant subject to an ECRO issues any claim falling within its scope, the claim is struck out automatically; no further step is needed unless permission has first been obtained from the court. Moreover, if permission is later granted under the ECRO, it does not retrospectively validate steps previously taken by the litigant—especially in relation to limitation, timetables, or other procedural deadlines that may already have expired. Instead, the permission simply allows the...

Hallman v Harkins [2019] UKUT 245 ( LC) What are the practical implications of this case? When the application for permission to appeal was made, no one had put in issue whether the FTT possessed authority to fix the scope of the relevant beneficial share. The UT, having granted permission, observed that it would have to settle a long-standing doubt about whether the FTT enjoyed any such jurisdiction at all. By deciding that the FTT lacked jurisdiction to determine the extent of a beneficial interest, the UT also emphasised that courts and tribunals should not deliver advisory or non-binding views, and that parties seeking an informed steer ought instead to consider the recognised forms of alternative dispute resolution available to them. Beyond the jurisdictional point, the decision is valuable for its recital of the considerations that inform whether a beneficial interest arises and, if so, how far...

Pepe’s Piri Piri Ltd and another company v Junaid and others [2019] EWHC 2097 ( QB) What are the practical implications of this case? The claim proceeded on three tortious bases: (a) conspiracy to damage the claimant’s business by unlawful means (b) unlawful interference with the claimant’s business (c) procuring breach of contract Advisers should consider with care how to frame pleadings where several putative defendants appear to have acted together to the claimant’s detriment. At the outset, it can be prudent to advance as many alternative formulations as are properly arguable. Yet, as trial draws near, practitioners ought to confront the disclosure head‑on and decide if it serves their clients’ interests to persist with each strand. Ultimately, the claimant succeeded on only one tort—procuring breach of contract. That was because, unlike the other two, it does not demand an intention to injure the claimant, but instead requires...

What was the background? The claimant, Mr Fentiman, is the chief executive of Specialist Hygiene Solutions Limited ( SHS), which operates under the name Hygiene Solutions. The defendant, Mr Marsh, had previously been a customer of SHS. The libel action arose initially from four online posts authored by Mr Marsh on blogging sites, Twitter and Linked In. In the first of these publications, he alleged there had been an unlawful and cowardly cyber-attack on the whistleblower website deproxfraud.info and on his personal Facebook and Linked In pages, asserting that this had merely served to alert the NHS, Public Health England and the Health and Safety Executive to what he described as the grubby and unethical behaviour of ‘ Rick’ Fentiman and his ‘minions’ at Hygiene Solutions Ltd. Mr Fentiman pleaded that the natural and ordinary meaning of that post was that he was the person...

R (on the application of Wingfield) v Canterbury City Council [2019] EWHC 1975 ( Admin) What are the practical implications of this case? The decision does not establish any new legal principle, but usefully reiterates settled law concerning what is commonly termed ‘salami slicing’. This describes breaking up a single development into smaller elements that fall beneath EIA thresholds, thereby sidestepping the need for an environmental assessment. Salami slicing has been found to be unlawful and should be avoided. The judgment confirms that defining the relevant ‘project’ for EIA purposes is a matter for the competent authority’s judgment, though it remains susceptible to challenge on grounds of Wednesbury rationality or other public law error. Lang J indicated that the following considerations are pertinent when deciding whether two schemes amount to a single project for the EIA regime: common...

Original News R v Alstom Network UK Ltd [2019] EWCA Crim 1318, [2019] All ER ( D) 133 ( Jul) Court of Appeal’s decision The Court of Appeal has rejected Alstom Network UK Ltd’s assertion that its 2018 conviction on a single count of conspiracy to corrupt followed an unfair trial. The appellate court dismissed the company’s challenge, which related to a €2.4m payment to Canadian shell company Construction et Gestion Nevco Inc to obtain a contract for infrastructure and trams in Tunisia. Alstom contended the proceedings were unfair as the directors central to the allegations were absent. The energy firm also argued the judge failed to give the jury adequate guidance on the basis for convicting a corporate entity where its ‘directing minds’—who could speak to their own knowledge and actions—were unable to attend the trial. Delivering the ruling, Lord Justice Peter Gross,...

Yavuz v Tesco Stores Limited and another [2019] EWHC 1971 ( QB) What are the practical implications of this case? This uncommon slander dispute stemmed from a confrontation in a supermarket between a shopper and a member of staff. It underlines the hurdles a claimant faces in slander actions, where they must prove the exact words were spoken as alleged. Success therefore turns heavily on the quality of witness testimony. The court focused closely on witness assessment, reflecting Tugendhat J’s approach in Cambridge v Makin [2011] EWHC 12 ( QB), namely that credibility is best judged by how a witness’s account aligns with established facts and with their prior statements or conduct. Here, the claimant was not considered a compelling witness, whereas the assistant said to have uttered the defamatory words gave evidence in a calm and measured way. In addressing whether there was...

Colin Robert Parr v Keystone Healthcare Ltd and others [2019] EWCA Civ 1246 What are the practical implications of this case? The Court of Appeal confirmed, on established authority, that any advantage secured by a fiduciary while breaching his duties must be stripped and handed to the principal. Stripping that gain is neither compensatory nor restitutionary; instead, it is a sanction aimed at removing the benefit the fiduciary has wrongly acquired. Advisers should avoid confusing loss, or damages, with the accounting for profits required from a fiduciary who has acted in breach and earned money from that wrongdoing. The court also commented on the proper use of citations and warned of potential costs consequences where parties fail to observe the applicable Practice Directions. What was the background? Mr Parr and Mr and Mrs Ward held the shares in Keystone and also served as its...

Protector Forsikring ASA revealed in a submission to the Oslo Stock Exchange last week that an arbitration tribunal had thrown out its assertion that a reinsurance agreement with Munich Reinsurance Co ought to indemnify certain property losses from the inferno that swept through the high-rise block. The business did not reveal the location of the hearing. It added that no reserves had been earmarked for such a result and that a £6.9m hit would be recognised in the forthcoming financial statements. The tribunal made no order as to legal costs. Protector Forsikring insured the Royal Borough of Kensington and Chelsea, the owner of Grenfell Tower when a fire......

Davies v Revelan Estates ( Wigston) Ltd [2019] EWHC 1766 ( Ch) What are the practical implications of this case? The decision, handed down in January, offers a careful analysis of the make‑up of a guarantor’s covenant and how its terms shape the routes available to a creditor landlord when proceeding against a guarantor. Where, on a proper reading of the covenant, the sum due cannot be categorised as a liquidated amount, a statutory demand is not an appropriate mechanism for recovery. A promise by a guarantor to discharge sums the tenant has failed to pay is a liquidated liability; by contrast, a promise to compensate the landlord for any loss or damage arising from the tenant’s breach of its obligations creates an unliquidated liability. What was the background? The appeal challenged a refusal to set aside a statutory demand served on a guarantor under a lease. The...