Legal News

Does the GDPR apply to unincorporated associations, such as sports clubs, and who is responsible for compliance by an unincorporated association with the GDPR? Who is ‘controller’ or ‘processor’? Yes—the General Data Protection Regulation, Regulation ( EU) 2016/679, applies to unincorporated associations in the same way it applies to companies or partnerships. The GDPR’s definitions of a ‘controller’ and a ‘processor’ encompass both natural persons and legal persons. The challenge for unincorporated associations is that they are not legal persons. They have no separate legal personality; they exist by contract, and neither statute nor case law sets out clear, definitive rules for what their governing provisions must contain. What truly matters under the GDPR is not the category of person or entity undertaking the processing, but the overall activity of collecting and using personal data. The rationale is...

Ineos Upstream Limited and another v The Lord Advocate [2018] CSOH 66 Why is this decision significant? This ruling matters because it tackles a highly charged issue: the development of unconventional oil and gas ( UOG), including hydraulic fracturing (fracking), and the competence of a devolved government, namely the Scottish government, to control that activity. It interests planning practitioners as it clarifies the reach of planning law and policy, and it is relevant to constitutional lawyers as it confirms that courts determine the legal consequences of governmental steps, regardless of how ministers characterise them. It also records an acknowledgement by the Scottish ministers that public statements heralding a fracking ban did not accurately represent the legal reality. What did the court decide? Lord Pentland, sitting in the Outer House of the Court of Session, refused Ineos Upstream Limited’s petition for judicial review. Ineos contended that the...

R (on the application of Tate) v Northumberland County Council [2018] EWCA Civ 1519 What are the practical implications of this case? It is unsurprising that the court adhered to the established law on material considerations and the consistent duty to give reasons. Where no explanation is offered for departing from a previous, comparable decision, decision-making can become erratic, causing real prejudice to members of the public affected by the grant of planning permission as well as to objectors. In such contexts, reasons are essential to preserve confidence in the development control regime. This judgment is a further reminder that decision-makers must provide sufficient reasons on the principal issues in planning determinations, so it is clear that the decisive questions have been confronted and resolved and, accordingly, that proper regard has been paid to material...

Keays (by her litigation friend, Keays) v Executors of the late Parkinson [2018] EWHC 1006 ( Ch) What are the practical implications of this case? Executors ought to refrain from personal, ad hominem critiques of a litigation friend’s fitness to act. The ruling also underlines that executors should not seek to foist their preferred nominee to supplant the existing litigation friend, even where there was a prior in‑principle consensus to appoint a professional. Further, in the absence of a Beddoe order, applications of this nature are liable to leave executors and/or beneficiaries personally responsible for both parties’ costs if the application fails, rather than enjoying indemnity from the estate. What was the background? In February 2017, Sara Keays, acting as litigation friend for her adult daughter, Flora, issued proceedings in the Chancery Division under the Inheritance ( Provision for Family and...

James Plummer v Royal Herbert Freehold Limited [2018] Lexis Citation 48 What are the practical implications of this case? Businesses that previously regarded themselves as landlords may, in reality, be treated as service providers and therefore have an anticipatory duty to make reasonable adjustments. As a result, the needs of disabled people must be accommodated, and importantly this applies even where there are currently no disabled users of the service. A further consequence is that, as a service provider, the company must consider altering physical features—a duty not imposed on landlords under the Equality Act 2010 ( EA 2010). Another practical point concerns the potential scale of injury to feelings awards—in this matter, £9,000 was awarded, the highest known award in a civil disability discrimination claim. PSLProperty comment: The County Court is not a court of record, therefore the judgment carries no...

Scottish Pension Fund Trustees Ltd v Marshall Ross & Munro and others [2018] CSIH 39 What are the practical implications of this case? While appearing to be a ‘pensions’ dispute, the judgment has far wider relevance for the commercial sector. It advances the reconciliation between a strictly technical view of partnership law in Scotland and the practical realities of day-to-day business operations. The court confirmed that, where a business has traded as a single continuing entity over time, there is a presumption under Scottish law—absent in English law—that liabilities transfer to successor partnerships. In this matter, the onus fell on the party with specific knowledge of how each partnership alteration occurred to rebut that presumption. A central policy reason is the protection of creditors. Of broader importance is the dicta of Lord Drummond Young, who reiterates two significant principles in the context of a pension...

DLA Delivery Ltd v Baroness Cumberlege of Newick and another [2018] EWCA Civ 1305 What are the practical implications of this case? The judgment confirms that the Secretary of State must consider relevant rulings issued after an inquiry has closed, even where those rulings are neither relied upon in further submissions to him nor specifically flagged by the parties. Accordingly, appellants and respondents alike should monitor any analogous determinations handed down while their appeal is pending so they can calibrate expectations. The ruling further underlines that the Secretary of State cannot depend on the litigants to identify pertinent authorities; the responsibility rests with him to apprise himself of them. The Court of Appeal also reaffirmed that, if the Secretary of State proposes to adopt a different stance and reach a different outcome on like issues to earlier decisions at the appeal stage, he must give...

ICO working with FCA and National Cyber Security Centre after breach The Information Commissioner’s Office ( ICO), the national data regulator, confirmed it is working with the FCA and the National Cyber Security Centre — part of GCHQ, the national intelligence and surveillance agency — in the wake of a major data breach. An ICO spokesperson noted the probe is at an early stage and will assess both when the incident took place and when it was detected as part of its inquiries. Dixons Carphone, the high street group, said in a statement that attackers seem to have focused on credit and debit cards through a payments system used by two of its businesses, Currys PC World and Dixons Travel stores. Some 5.8......

Ralph Kline Limited v Metropolitan and County Holdings Limited [2018] EWHC 64 ( Ch), [2018] All ER ( D) 160 ( Jan) What are the practical implications of the judgment? The principal consequences of this decision fall on the drafting of leases. Contemporary construction methods enable increasingly imaginative exploitation of the airspace above building roofs. In tightly populated urban districts, both the right to construct within that airspace and the right to enter it can therefore carry significant worth. When acting for a landlord who intends to reserve the building’s airspace, the lease should make this exclusion explicit within the definition of the demised premises. The effect of the judgment is that those preparing leases for landlords must expressly address airspace. Comparable care is required in managing the ramifications of omitting airspace from the demise—for example, how this bears upon any repairing and...

It is common for suppliers in commercial services agreements to seek to generally exclude all their liability for ‘loss of data’—what sorts of potential claims would such an exclusion cover and what is the commercial rationale for including such a clause? As GDPR ( Regulation ( EU) 2016/679) neared its 25 May 2018 start date, these discussions became increasingly routine, with many organisations looking to ‘repaper’ and revise existing contracts to secure GDPR compliance. The term ‘loss of data’ has no statutory definition, so its scope must be read in the context of the particular agreement. In practice, it would usually be treated as catching claims arising from: Destruction of data Corruption of data Accidental disclosure of data Theft of data This would apply however the issue arose—eg through a virus, power failure, mechanical fault, human error or a...

Jones v Birmingham City Council [2018] EWCA Civ 1189, [2018] All ER ( D) 129 ( May) What are the practical implications of the judgment? There has long been debate over whether the civil standard required to obtain a gang injunction accords with Article 6 ECHR. The decision in Jones resolves that, for now, by stating unequivocally that proceedings under PCA 2009 Part 4 and ASBCPA 2014 Part 1 do not determine a criminal charge within the meaning of Article 6(1) ECHR, and that the fair trial guarantees in Article 6 more generally do not demand application of the criminal standard of proof. In essence, relying on the civil threshold to secure these injunctions is compatible with Article 6 ECHR, and practitioners may proceed on that footing unless and until the Supreme Court or the European Court of Human Rights decides...

Original news Trade Secrets ( Enforcement etc) Regulations 2018, LNB News 18/05/2018 76 SI 2018/597 Measures are introduced to give effect to EU Trade Secrets Directive 2016/943/ EU, which protects undisclosed know‑how and business information (trade secrets) against their unlawful acquisition, use and disclosure. While several provisions of Directive 2016/943/ EU are already reflected in UK law, these Regulations address the areas where gaps remain and where implementing the Directive will secure legal certainty, making the law more transparent and coherent across all UK jurisdictions in relation to proceedings about the unlawful obtaining, use or disclosure of a trade secret. The Regulations take effect on 9 June 2018. What is the background to the Regulations and Trade Secrets Directive? Historically, protection for trade secrets has been inconsistent across EU Member States. Around a third of Member States have no specific legislation addressing the...

Malik (deceased, by her Estate’s court appointed representative, Malik) v Shiekh, [2018] EWHC 973 ( Ch) What are the practical implications of this case? This judgment, on appeal from HHJ Parfitt, required the court to apply the long-established principles in Royal Bank of Scotland v Etridge ( No 2) [2001] UKHL 44, [2001] 4 All ER 449 concerning presumed undue influence. For the presumption to arise, it must be shown that: a party ( A) aiming to set aside a disposition they entered into was influenced to enter that disposition by a party ( B), or by those acting on B’s behalf, and the disposition was not one that A would ordinarily have entered into given their circumstances and knowledge (ie the......

Rashid v Munir and others [2018] EWHC 1258 ( QB) What are the practical implications of this case? The decision was fact-specific and striking indeed because the court rejected virtually all testimony, expressing complete disbelief in any of the evidence, and remarking that the judge below had ‘bore witness to a festival of mendacity’, further indicating it would send a transcript of his judgment, together with the case papers, to the Director of Public Prosecutions. Even so, in a sparsely litigated area of law and practice, it helpfully confirms that, in this context, when allocating rental income from land owned by co-owners, the correct approach is to appropriately identify the parties’ common intention as the guiding basis as between themselves. What was the background? A family business empire owned several properties. Those properties were held by three brothers as joint owners in differing legal shares. One brother (the...

The full text of the Interim Report is available here. The Town and Country Planning Association ( TCPA) has asked for feedback on the Interim Report’s findings before the final report is published... What is the background to the Interim Report? The Raynsford Review of Planning (the Review), chaired by former planning minister Nick Raynsford, is an independent initiative established by the TCPA in 2017. It seeks to determine how government could reform the English planning system so it is fairer, better resourced and capable of delivering quality outcomes, whilst still promoting the creation of new homes. The Review was not commissioned by government; accordingly, its conclusions will not be binding. Nevertheless, the task force—comprising academics, politicians, policy makers and consultants—has been gathering evidence and engaging with stakeholders over an 18‑month period starting in June 2017. As a result, the final report, due in late 2018, is...

Thompson v Ragget and others [2018] EWHC 688 ( Ch), [2018] All ER ( D) 18 ( Apr) What are the practical implications of this case? If an unmarried couple have no wills and one dies, the survivor has no statutory entitlement to inherit under the intestacy rules. Nevertheless, as the claimant did, a surviving cohabitee may bring a court claim for financial provision if they lived together for two years, or if they were a dependant immediately before the deceased’s death. A central consideration in such claims, as here, is whether accommodation should be provided through a life interest rather than by transferring capital outright. In the widely reported case Ilott v The Blue Cross and others [2017] UKSC 17, [2017] All ER ( D) 96 ( Mar), Lord Hughes emphasised that the statutory power is to meet maintenance, not to grant capital; where...

EDF Energy Customers Ltd (formerly EDF Energy Customers plc) v Re- Energised Ltd [2018] EWHC 652 ( Ch), [2018] All ER ( D) 02 ( Apr) What are the practical implications of this case? This decision restates—by analogy with personal insolvency authorities such as Harvey v Dunbar Assets [2017] EWCA Civ 60, [2017] All ER ( D) 127 ( Feb)—that, save in truly exceptional situations, a debtor company cannot revisit at the winding-up petition hearing the same contentions already determined on an application to restrain advertisement. The rule also captures points the company could have advanced earlier but did not. Allowing a second bite at the cherry would squander judicial resources and may engage res judicata. The ruling has consequences for how advisers approach applications to restrain presentation or advertisement: there is considerable peril in issuing a hurried application when not all potential arguments are...

Uber France SAS v Nabil Bensalem Case C–320/16 ECLI: EU: C:2018:221 What are the practical implications? This marked the second occasion on which the Court of Justice was invited to rule on the legal character of Uber’s offering under European law. The earlier reference, Asociación Profesional Élite Taxi v Uber Systems Spain SL, Case C‑434/15, went against Uber in December 2017, when the Court of Justice held that the service constituted transport and was therefore subject to Spanish national and local rules on transport. See Court of Justice declares that Uber is a transport service ( Asociación Profesional Élite Taxi v Uber Systems Spain, SL). The outcome in the present proceedings follows the Advocate General’s Opinion of 4 July 2017 and also confirms that Member States may, as a matter of criminal law, prohibit and penalise the unlawful provision of transport activities in...

Hotlinking does not constitute copyright infringement ( Wheat v Alphabet Inc/ Google LLC & Anor) Wheat v Alphabet Inc/ Google LLC & Anor [2018] EWHC 550 ( Ch) (26 March 2018) What are the practical implications of this case? The decision addresses the thorny issue of whether hotlinking can give rise to claims for breach of contract or copyright infringement. Its technical effect may divert searches away from the originator’s site to an aggregator, with a corresponding loss of advertising revenue. The case shows how evolving technology disrupts existing business models, and the difficulties of pursuing remedies for perceived wrongs within legal frameworks that can lag behind innovation. It further highlights the perils for litigants in person stepping into areas that test even experienced litigators. What was the background? The claimant, acting in person, runs the website...

When does the ‘right to be forgotten’ as established through case law ( Google Spain v AEPD ( Marion Costeja Gonzalez) arise and what does it aim to achieve? The so‑called ‘right to be forgotten’, crystallised in Google Spain, Case C‑131/12, [2014] All ER ( D) 124 ( May), recognises that data subjects may ask search engine operators processing personal data in the context of an EU establishment to remove links to their personal data from indexes and results for particular search queries. Whether such removal must extend to every domain run by a search engine remains disputed. This entitlement applies where, taking all the circumstances into account, personal data is: inadequate irrelevant or no longer relevant excessive in relation to the purposes of the processing undertaken by the search engine operator. In Google Spain, the European Court of Justice concluded that, as a...