Legal News

Re: Dinglis Properties Limited [2019] EWHC 1664 ( Ch) What are the practical implications of this case? This is an unusual unfair prejudice matter where one party is entirely blameless. Commonly, in response to a perceived unfair act by a co‑venturer, a petitioner resorts to self‑help that, in one guise or another, breaches the understanding underpinning the quasi‑partnership or their obligations as a director, an employee, or both. Such behaviour frequently only surfaces during litigation after relations have collapsed and the petitioner has been excluded. In the typical scenario, where the respondent cannot defend the exclusion by reference to what they knew at the moment of exclusion, the outcome may turn on whether they can rely upon the petitioner’s conduct that occurred before and at the time of exclusion but was not known to the respondent then. This ruling confirms that the...

Morgan v Times Newspaper Ltd [2019] EWHC 1525 ( QB) What are the practical implications of this case? This decision addresses the test for assessing whether remarks about professional competence are defamatory. The defendant maintained that defamation of a person’s professional (or business) reputation requires an imputation of an habitual or entrenched trait, not a single episode of negligence or ineptitude. The court emphatically rejected that contention, explaining that one instance of incompetent professional work can harm reputation as much as a charge against overall competence—illustrated by a barrister whose performance in one case could be decisive. The judgment also offers a useful synthesis of the authorities in this area, including discussion and application of Skuse v Granada Television Ltd [1996] EMLR 278, together with consideration of various commentary on the topic. What was the background? This libel claim arose from an article published by the...

Al- Najar (a protected party by her litigation friend) and others v Cumberland Hotel ( London) Ltd [2019] EWHC 1593 ( QB), [2019] All ER ( D) 116 ( Jun) What are the practical implications of the decision? The ruling in Al- Najar (a protected party by her litigation friend) and others v Cumberland Hotel ( London) Ltd mirrors recent decisions on tortious liability, reaffirming that a duty of care entails taking such steps as are reasonable, given all the circumstances, to guard against injuries that are reasonably foreseeable. Consequently, it should make no difference to how practitioners have been counselling their clients... What was the background? The first, second and third claimants were three women from a Middle Eastern family accommodated in two interconnecting rooms at the defendant’s sizeable, prestigious four-star hotel in central London. They, in common with many other Middle Eastern guests, decided to...

R (on the application of Z and another) v Hackney London Borough Council and another [2019] EWCA Civ 1099 What are the practical implications of this case? The merits of the judicial review were difficult to discern, as the claimant accepted on the evidence that the allegedly discriminatory policy was justified on the statutory basis in section 193 of the Equality Act 2010: it sought to prevent or redress disadvantage linked to being an Orthodox Jew, notably by supporting a secure community to counter anti‑ Semitism. The real interest of the judgment lies in the Court of Appeal’s firm backing of the Divisional Court’s decision (that court comprising two seasoned judges, one, as is customary, drawn from the Court of Appeal). The appellate court underlined that it is not there to rehear the case; it will interfere with...

What does Article 79 of the GDPR provide and is that consistent with Brussels I (recast)? Article 79(2) GDPR states that actions against a controller or a processor must be issued before the courts in the Member State where the controller or processor maintains an establishment. In the alternative, the claim may instead be brought before the courts of the Member State where the data subject has his or her habitual residence, save where the controller or processor is a public authority of a Member State acting in the exercise of its public powers. This seems to lay down a complete, self-contained scheme identifying which courts have jurisdiction over GDPR claims, and Recital (147) goes even further. Recital (147) provides—‘ Where this Regulation lays down specific rules on jurisdiction, particularly concerning proceedings that seek a judicial remedy, including...

Brent London Borough Council v Secretary of State for Housing, Communities and Local Government and another [2019] EWHC 1399 ( Admin) What are the practical implications of this case? The decision confirms there is no duty on an inspector, in all appeals against enforcement notices, to go searching to determine whether some additional or alternative breach of planning control, different from that alleged in the notice, has taken place. Nor is there any rule of statutory interpretation requiring an inspector, when deciding such an appeal, to assess whether the use existing ten years before service of the notice had, within the ten-year period ending on the date of service, altered through intensification to such an extent as to amount to a material change of use. That said, where an enforcement notice asserts, or the local planning authority ( LPA) that issued it...

P.m. and Others (request for preliminary ruling) C-264/18 What are the practical implications of this case? Under the PCR 2015, a wide range of legal services let by public bodies fall within the ‘light‑touch’ regime in Chapter 3. As a result, awarding those contracts is governed by less burdensome requirements than those that apply to most other service procurements under the PCR 2015. Yet a narrower set of legal services—chiefly arbitration and conciliation work, together with representation in certain legal proceedings (and legal advice connected to such proceedings)—are carved out altogether from the procurement rules by regulation 10 of the PCR 2015. The dispute stems from a Belgian challenge to the exclusion of the relevant legal services under the Belgian counterpart to regulation 10. The applicants contended that excluding those services conflicted with the freedom of establishment and the freedom to provide services in the TFEU, and also...

Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another [2019] EWHC 1326 ( QB) What are the practical implications of the case? The practical effect of Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another is that summoning a third party to testify in a loss of chance claim does not, by itself, settle what would have occurred unless the court sees all pertinent material and the testimony is wholly reliable. In circumstances such as these—where the witness lacked credibility and there had not been full disclosure—the court dismissed the defendant’s submission that it should decide the likely result of the Moda– Mortar negotiations by applying the balance of probabilities. Consistently with Perry v Raleys Solicitors [2019] UKSC 5, [2019] All ER ( D) 59 ( Feb), the proper method was to...

Plevin v DAS Legal Expenses Insurance Company Ltd [2019] EWHC 1339 ( Comm) What are the practical implications of this case? Disputes over the reach of CFAs and after-the-event ( ATE) insurance are routine within inter partes detailed assessment proceedings. This matter is somewhat out of the ordinary because it concerns a quarrel between a claimant, her solicitors, and an ATE insurer—though, in substance, between the solicitors and the insurer—about the effect of a clumsily drafted CFA and policy of insurance. The ruling is not the first occasion on which issues of construction of the CFA and the insurance policy in this litigation have surfaced. During the detailed assessment before the Supreme Court that culminated in Plevin v Paragon Personal Finance Limited [2017] UKSC 23, Paragon mounted similar objections. The case stands as a cautionary illustration of the hazards of neglecting to reach clear...

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Times Travel ( UK) LTD v Pakistan International Airlines Corporation [2019] EWCA Civ 828 What are the practical implications of this case? This judgment makes clear that a contract will not be rescinded for economic duress where: the pressure applied is lawful, and the party applying that pressure genuinely believes they are entitled to act as they did, even if that belief might be criticised as unreasonable The decision also underlines the limited statutory framework for commercial agreements, confirming that such contracts cannot be avoided simply because of the lawful use of a monopoly or disparities in power or bargaining strength. Any evolution of the law in these fields is a matter for Parliament rather than the common law... What was the background? Times Travel ( TT), a small family-run travel agency in Birmingham, was in 2008 accredited by the...

Green v SCL Group [2019] EWHC 954 ( Ch), [2019] All ER ( D) 114 ( Apr) What are the practical implications of this case? Norris J’s decision in Green v SCL Group (widely known as Cambridge Analytica) offers insolvency practitioners clearer guidance on the evidence they must present to the court and on responding to creditors’ enquiries, and also illuminates the court’s stance on applications seeking to move an administration into liquidation. What was the background? The dispute concerned campaigner Professor David Carroll’s objection to the administrators of the UK Cambridge Analytica entities being appointed as liquidators, even though the vast majority of creditors supported them. The office-holders had entered office through an administration application. Professor Carroll maintained that: the joint administrators breached their duty of candour by failing to identify his claim and report it to the court they further breached that duty by not...

What is the current legislation/regulation relating to drug misuse in the workplace and does this go far enough? Is there any guidance available for employers? Employers are legally required, under the Health and Safety at Work etc Act 1974, to safeguard the health, safety and welfare of their workforce so far as is reasonably practicable. The Management of Health and Safety at Work Regulations 1999 ( SI 1999/3242) add a duty to identify and evaluate risks to employees’ health and safety. Where an employer knowingly permits someone to work while impaired by drugs or alcohol, and that behaviour endangers them or others, the employer may face prosecution. Workers, for their part, must also exercise reasonable care for their own safety and for anyone who could be affected by what they do—or fail to do—at work. The Misuse of Drugs Act 1971 is the key UK...

BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises, Inc. [2019] EWCA Civ 596 What are the practical implications of this case? This appeal sharpens the test for fraudulent misrepresentation and evidential presumption. The representee must show that the statement was a real, factor in the decision to enter the contract, consciously operating on their mind. Where a statement is of a kind likely to persuade, the law presumes it did so. Although that presumption is not easily displaced, the ruling underlines that the burden of proof remains with the claimant and is not flipped. The court also addressed transferred loss, confirming it as a helpful yet narrow exception to the basic rule that a claimant recovers only the loss they have sustained. In addition, the judgment serves as a reminder to respect the distinctness of companies in a corporate group when assessing loss. Parties cannot take...

Rochester v Ingham House Ltd [2019] EWHC 847 ( QB) Background Ingham House, run by the defendant company, is a residential care facility delivering support to older adults. Mrs Rochester (the claimant) was hired as a team leader at Ingham House and completed four shifts. According to the claimant, she voiced worries about the state of affairs at Ingham House and, during a discussion with the Deputy Manager, left her post with immediate effect. The defendant contends that the Deputy Manager challenged the claimant’s role in handing out medicines to residents and that, although she appeared to resign in that exchange, she was actually dismissed. The claimant reported matters concerning Ingham House to the CQC and informed the defendant of doing so. She asserts the defendant then emailed the CQC and referred her to the Disclosure and Barring Service ( DBS) in a bid to...

What, in summary, are the recent developments relating to the EU settlement scheme? Following earlier pilot phases, the scheme went live in full on 30 March 2019, making it accessible to every EU citizen and their family members. The caseworker guidance is extensive and divided into two texts: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members — a 104-page guide outlining eligibility, when an application is valid, what evidence to submit, the steps in the process, and particular rules for family members. EU Settlement Scheme: suitability requirements — a 22-page guide devoted to character and conduct considerations, and the ways these could affect an application under the EU settlement scheme. These materials assist applicants seeking a thorough grasp of the process and the paperwork they may require. Yet the breadth and depth of what is provided can feel daunting for...

The swift expansion of Io MTs has delivered major advances in healthcare across the board, enhancing efficiency and elevating the quality of care provided to patients. Deloitte recently observed that the Io MTs market is projected to be worth USD158.1bn by 2022. Wearables, lifestyle gadgets and mobile health applications are steadily gaining traction with consumers of all ages. A broad selection of connected, intelligent health devices now exists, from smart watches, smart earplugs and smart glasses to activity trackers and other tools that help us keep tabs on our fitness. We are tracking our steps, heart rate, pulse, blood pressure and receiving prompts about when medicines should be taken on time. As with any product, the chance of malfunction or defect that causes personal injury or damage to property remains tangible. For connected technologies in particular, the legal position is...

Hewson v Times Newspapers Ltd and another [2019] EWHC 650 ( QB) Practical implications The ruling is noteworthy as the court spelt out the correct approach to the repetition rule, describing the matter as a textbook instance of how the rule should operate. That rule stops a report that relays an allegation from being held to bear a milder defamatory meaning than the original allegation would carry. Here, the pieces both included and recounted accusations made by others. The court emphasised that publications that simply repeat others’ claims will generally amount to a fresh publication of those claims. As to meaning, the consequence was that the re-publisher was treated as having ‘adopted’ the allegations, without any need for active or express adoption. On that footing, the court held the articles conveyed allegations of guilt. The court also unusually resolved the question of meaning without an oral...

Cathay Pacific Airlines Ltd v Lufthansa Technik AG [2019] EWHC 484 ( Ch), [2019] All ER ( D) 49 ( Mar) What are the practical implications of the judgment? The ruling in Cathay Pacific Airlines Ltd v Lufthansa Technik AG carries notable practical consequences for claimants thinking of starting proceedings under CPR 8. Where a party is minded to proceed under CPR 8 for a claim that could instead be issued via CPR 7, the following should ordinarily occur: notify the intended defendant that CPR 8 is being considered give a short rationale explaining why, on the facts of the case, CPR 8 is thought more suitable than CPR 7 send a draft articulation of the exact issue or question the claimant proposes the court determine under CPR 8, inviting the defendant’s comments set out any agreed facts bearing on that issue or...

Keymed ( Medical and Industrial Equipment) Ltd v Hillman and another [2019] EWHC 485 ( Ch), [2019] All ER ( D) 68 ( Mar) What are the practical implications of the judgment? In this case, the claimant contended that its ex–chief executive and chief financial officer had colluded to uplift their pension entitlements, to the company’s detriment and contrary to their obligations. The court rejected those assertions as unfounded, concluding there was no kind of breach of duty by either defendant. Accordingly, the claims that they had acted to enrich themselves at the company’s expense failed. Beyond determining that, on the facts of the case, the facts disclosed no dereliction of duty, Marcus Smith J also ruled that, having advanced a case framed around graver wrongdoing, the claimant could not pivot to a case based on simple negligence; further, a trustee of an employee pension...