Legal News

Seddon v Driver and Vehicle Licensing Agency [2019] EWCA Civ 14, [2019] All ER ( D) 139 ( Jan) What are the practical implications of the judgment? The Court of Appeal in Seddon v Driver and Vehicle Licensing Agency held that the agency owes no duty of care to would‑be buyers of registered historic vehicles, notwithstanding knowledge that a car is being marketed and that questions have been raised about its identity and age. Of broader significance, and useful to practitioners generally, is Hamblen LJ’s succinct restatement of the factors the courts regard as pertinent when deciding whether to recognise a duty of care in claims for pure economic loss, providing a guide to the circumstances in which such a duty may, in principle, be imposed. What was the background? The respondent is an executive agency, sponsored by the Department for Transport, tasked under the Vehicle Excise and...

Caroline Tighe V (1) Alistair Fraser Peters (2) Mike Kienlen & Rob Adamson ( As Joint Administrators of Sprout Land Holdings Limited) [2019] What are the practical implications of this case? This ruling appears to illuminate two points arising from a stalemated board and a majority of shareholders seeking to put the company into administration, in that particular context and factual setting. First, the courts will not overlook a complete disregard of the statutory process for members’ resolutions under CA 2006, Part 2, as prescribed and expected by the legislation. In this matter, it was said the resolution would have passed in any event, so the court should forgive the company’s omission to consider and circulate it—both functions performed by a single director rather than the company. Moreover, although CA 2006, s 293 allows circulation at different times, under the statute itself, it is not meant to...

High Court judge Simon Picken concluded that Marme Inversiones 2007 SL’s claim against RBS could not succeed, as the Spanish investment vehicle failed to establish that the bank knowingly made false statements when selling it a number of Euribor-linked swaps in 2008. He further held that Marme would not, in any event, have relied on any such statements to enter the trades, since it was unaware of them at the time. In a 230-page judgment favouring the bank, now operating as Nat West Markets PLC, Judge Picken found that RBS neither engaged in, nor intended or attempted to engage in, manipulation of Euribor. Marme, the Spanish vehicle used by property magnate Glenn Maud to undertake a €1.575bn loan with a syndicate of European lenders led by RBS, had contended at trial that the swaps ought to be unwound due to the bank’s...

Background These libel proceedings arose after five posts on the website antisemitism.uk about the claimant, a political activist. The first piece, titled ‘ Tony Greenstein’s attempt to shut down Campaign Against Antisemitism showcases the similarities between far-left and far-right’, described the claimant as a ‘notorious antisemite’. The remaining four articles were comparable in tone and examined, among other issues, alleged antisemitism within the Labour Party and the ongoing public dispute between the claimant and the defendant. The parties disagreed over the meanings to be drawn from the words. The claimant maintained that the articles advanced allegations of fact: namely, that he was a notorious antisemite, a racist hostile to all Jews because they are Jewish. He also contended that the first article carried the meaning that he was, more generally, a dishonest fraudster with a background of criminal drug abuse, who was making...

Currie v Thornley and another [2019] EWHC 172 ( Ch), [2019] All ER ( D) 19 ( Feb) What are the practical implications of this decision? Liquidators will typically insist on tightly drafted indemnity deeds when they are effecting distributions of a company’s assets to shareholders in an MVL, particularly where there remains any possibility of creditors bringing later claims in the liquidation. In Currie v Thornley and another, the company’s assets—real estate used in running a care home—were transferred to a limited liability partnership set up by the company’s former shareholders, at a point when contingent claims existed against the company. If those contingencies crystallised, the liquidator might face proceedings for failing to discharge his duties to the company by permitting assets to be transferred out before first settling sums owed to creditors. Although indemnity deeds are very common, especially in...

R (on the application of Hallam and another) v Secretary of State for Justice [2019] UKSC 2, [2019] All ER ( D) 143 ( Jan) What are the practical implications of this decision? The judgment exposes a wider concern about the treatment of those wrongfully convicted in England and Wales. After years in custody on unsafe convictions, many are released to minimal assistance and face significant barriers to rebuilding their lives, including: little structured support on release no automatic access to living allowances or specialist psychological care a requirement to apply to have their criminal record removed no apology or account of what went wrong an even lower likelihood of securing compensation CJA 1988, s 133(1ZA) prescribes the eligibility test for compensation following a miscarriage of justice. Inserted into the CJA in 2014 to define the meaning of miscarriage of justice, it requires applicants whose convictions have been quashed to...

Thorpe v Frank [2019] EWCA Civ 150 What are the practical implications of this case? The judgment confirms that paving alone may amount to sufficient factual possession, but the outcome is fact-sensitive. The character of the land—here, an open forecourt—is particularly significant. Property lawyers should keep this firmly in mind when advising their clients. What was the background? The dispute arose from Mrs Thorpe’s contention that she had acquired, by adverse possession, part of the land comprised in the title to the adjoining property owned by the Franks. The two properties had contiguous open forecourts. Mrs Thorpe said that, when she was a tenant and up to her purchase in 1984, a stone-edged kerb defined an area outside the property, which was covered with different tiles or flagstones, and contained a flower bed at its centre. She decided to re-lay the surface and remove the 2½ inch...

Awbury Technical Solutions LLC v Karson Management ( Bermuda) Ltd [2019] EWHC 233 ( Comm) What are the practical implications of this case? This decision explores the interaction between section 12(3) of the Human Rights Act 1998 ( HRA 1998) and applications for interim injunctions to restrain the use of confidential information in a commercial setting. Although Butcher J did not foreclose the possibility that, in a business context, such relief might amount to an interference with freedom of expression, his judgment indicates that will seldom be so. In particular, where the communication serves only to advance the communicator’s financial interests, is directed to a very small group of recipients, and there is no suggestion that the material is journalistic, literary or artistic, the right to freedom of expression will generally not be engaged. The decision also appears to be the first in England and Wales to...

Innsworth Litigation Funding and a law firm, Keystone Law, are assembling institutional shareholders who bought or held shares in Petrofac starting from October 2010 Innsworth said in a statement that its assessment of potential claims is already well progressed. Claims against Petrofac, registered in the offshore UK dependency of Jersey, are understood to potentially surpass £400m ($516m). Lawyers intend to issue proceedings in April or May, once their investigations have been completed. It is claimed shareholders sustained substantial losses linked to Petrofac’s alleged involvement in bribery, corruption and money laundering, with Petrofac [allegedly] making false and misleading statements......

Gladman Development Ltd v Secretary of State of Housing, Communities and Local Government and another [2019] EWHC 127 ( Admin) What are the practical implications of this case? The ruling introduces no novel principles, but it usefully reinforces the obligation on decision-makers to ensure consistency with prior determinations and to set out clear, adequate reasons for their conclusions. Plainly, whether a local policy is considered out of date, and the weight it attracts, will differ from case to case; however, the essential point is that where a previous appeal decision is directly pertinent or turns on the same policy interpretation, the decision-maker should explain any inconsistency with that earlier outcome and justify any departure from conclusions that diverge from their own. Although coherence between appeal decisions on the same subject matter or policy is clearly important, this does not require identical outcomes in all similar cases;...

Koutsogiannis v Randon House Group Ltd Carruthers v News Group Newspapers Ltd [2019] EWHC 48 ( QB) What was the background? This defamation action arose from the 2017 publication of ‘ The Spider Network’ by Random House Group Ltd (the defendant). The book’s cover proclaimed it to be ‘ The Wild Story of a Maths Genius, A Gang of Backstabbing Bankers, and One of the Greatest Scams in Financial History.’ The claimant had served as UBS Investment Bank’s Global Head of Cross Currency Basis Swap Trading from 1999 to 2012. He was subsequently dismissed and, owing to his alleged role in fixing Libor rates, the FCA barred him from carrying out any influential position within the British financial industry. On appeal, the Regulatory Decisions Committee overturned that sanction, determining that he ‘did not behave dishonestly or without integrity.’ The work recounts the Libor scandal, with a...

Sleight (as trustee of the estate of Jillian Paula Mascall deceased) v Crown Estate Commissioners [2018] EWHC 3489 ( Ch), [2018] All ER ( D) 111 ( Dec) What are the practical implications of this case? The holder of the funds (the chargee) had no beneficial stake in them, the party who had or might acquire an interest (the Crown) did not wish to take them, and the party who desired the funds (the trustee) had no means of getting them. A trustee can, by a sidewind, recover what has been disclaimed in like situations—in Lee v Lee [1999] Lexis Citation 3298, [1999] BPIR 926, on a chargee’s application for an order under section 320 of the Insolvency Act 1986 ( IA 1986), the court granted the order and, exercising its broad discretion, directed that any surplus after the charge was met should be paid to the...

WH Holding Ltd and another company v E20 Stadium LLP [2018] EWCA Civ 2652, [2018] All ER ( D) 17 ( Dec) What are the practical implications of this case? The decision carries significant consequences across commercial litigation, particularly matters where board minute records, litigation-related emails, or other confidential or off-the-record exchanges sit at the heart of the dispute. It reshapes practitioners’ approach to disclosure and tightens the reins on attempts to hide unhelpful material behind vague assertions of privilege. Practically, the Court of Appeal’s ruling demands much closer examination of litigation privilege by contentious lawyers. As a result, parties cannot automatically cloak minutes of internal meetings—where directors or staff debate commercial settlement—with litigation privilege if the conversation neither seeks evidence or advice for the case nor expressly or by necessary inference discloses the substance of legal advice. Put plainly, minutes of...

Catlin Syndicate Ltd & Ors v Weyerhaeuser Company [2018] EWHC 3609 ( Comm) What are the practical implications of this case? This judgment confirms that the English court is reluctant to set aside parties’ bargains to arbitrate, even when the arbitration clause is incorporated by reference from the underlying layer and sits uneasily alongside express dispute resolution wording in the policy. The ruling highlights the practical difficulties that arise where layered (re)insurance placements carry inconsistent dispute resolution provisions. Because such layered programmes are standard for major risks, brokers and contracting parties should scrutinise with care not only the dispute resolution language in the layer they subscribe to, but also any such terms imported from policies beneath the layer. What was the background? The claimants and......

What impact do the Business Contract Terms ( Assignment of Receivables) Regulations 2018 have on rights of set-off (contractual and other)? The explanatory memorandum to the Business Contract Terms ( Assignment of Receivables) Regulations 2018, SI 2018/1254 (the Regulations), states plainly that these provisions are introduced to render ineffective terms in specified contracts that restrict the assignment of receivables, with effect from 31 December 2018. As a result, many businesses that were previously prevented by contractual limitations will now be able to assign receivables and utilise products such as invoice financing in relation to sums owed to them. This may influence the right of set-off, as some businesses could opt for rapid liquidity by assigning receivables to a third party through arrangements like invoice finance, rather than exercising any right of set-off against invoices presented to them. The principle of set-off is firmly...

Bakhshiyeva (acting as the foreign representative of OJSC International Bank of Azerbaijan) v Sberbank of Russia [2018] EWCA Civ 2802 What are the practical implications of this case? The Court of Appeal reaffirmed the Gibbs rule, a point of real importance for financial institutions, creditors and any commercial party with agreements governed by English law. In consequence, creditors with English law debts can be confident that a foreign insolvency procedure cannot alter or compromise obligations governed by English law. As with many other international counterparties, Sberbank chooses English law for cross-border deals due to its neutrality, the certainty it affords, and the predictability of the English courts. This judgment underlines the reputation, dependability and commercial focus of English law and the English judicial system. The ruling will help ensure that English law (and jurisdiction) continues to be one of the leading choices of law for...

UKI ( Kingsway) Limited ( Respondent) v Westminster City Council ( Appellant) [2018] UKSC 67 What is the law in this area? Liability for non-domestic rates turns on a property being recorded as a hereditament in the rating list. A newly constructed building is added to that list once a completion notice has been validly served. The notice fixes the date on which the building is deemed to be complete. What was the background? The dispute concerned the purported service of a completion notice intended to bring a new, unoccupied building into the rating list. The Court of Appeal upheld the appellant’s appeal against the decision of the Upper Tribunal ( Lands Chamber) ( UT), which had found that a completion notice had been served on it, despite the fact that transmission was effected through a person not authorised to accept service......

Court considers failure to serve medical report in personal injury case ( Mark v Universal Coatings & Services Ltd and another company) Mark v Universal Coatings & Services Ltd and another company [2018] EWHC 3206 ( QB) What are the practical implications of this case? CPR PD 16, para 4.2 requires a claimant in a personal injury action to append to the particulars of claim a schedule detailing any past and anticipated expenditure and losses. Under para 4.3, if the claimant intends to rely on evidence from a medical practitioner, a medical report addressing the alleged injuries must be attached to or served with those particulars. The decision in Mark v Universal Coatings indicates that provisions which look mandatory across all personal injury claims may not be strictly enforced in more complex litigation. In such cases, the court may not insist on service of a medical report or a...

What changes to entrepreneurs’ relief were announced at the Budget 2018 and what was the motivation behind them? What is their likely impact? There will be three amendments to entrepreneurs’ relief in the Finance Act 2019. Diluted holdings The first reform permits a shareholder whose interest falls below the 5% qualifying threshold to elect to be treated as having disposed of, and immediately reacquired, their shares just before the dilution, effectively banking entrepreneurs’ relief for the qualifying holding period. The driver for this was a perceived obstacle to third-party investment in entrepreneurial businesses, where fundraising could push existing owners under the 5% line. In practice, the arrangement demands two distinct elections: one to crystallise the deemed sale and repurchase, and a separate one—on different deadlines—to defer the liability until an actual disposal, unless the person prefers to pay the capital gains tax upfront as a ‘dirty’ tax charge....

Average fine for data breaches doubles to £146,000 in just a year What is this development about? Average penalties issued by the ICO have risen to £146,000 ($185,888), up from £73,000 in the equivalent 12‑month period, research from RPC indicates. The aggregate value of sanctions increased by 24% to £4.98m, compared with £4m a year earlier. Richard Breavington, a partner at the firm, said the regulator is showing more bite and a readiness to echo public sentiment, noting that the necessary mindset and authority are in place and that there has been a marked shift. The GDPR took effect in May 2018 and permits fines of €20m ($22.7m) or 4% of annual global turnover, whichever is greater. Before May 2018......