Legal News

The defendant challenged the decision, arguing that the judge erred in finding that the claimant, exercising reasonable diligence, could not have uncovered the defendant’s concealment of the pertinent facts more than six years before issuing the claim form. The Court of Appeal rejected the challenge, concluding that the defendant had failed to demonstrate that the judge was plainly wrong, meaning a conclusion that no reasonable judge could have reached. Authored by John Bignall, barrister at 7 King’s Bench Walk. Gresport Finance Ltd v Battaglia [2018] EWCA Civ 540 What are the practical implications of this case? The dispute centred on an effort to overturn a factual determination made by the trial judge, in a context where no misdirection in law or any flaw in the judge’s approach was asserted. The decision underscores the very stringent threshold that must be met to upset such a...

Bosworth Water Trust v SSR and others [2018] EWHC 444 ( QB) What are the practical implications of the case? Children are recognised and expected to be less cautious than adults. Still, they should be afforded chances to take part in activities that offer both enjoyment and exercise. They are entitled to be given the opportunity to participate in such pursuits. Where such activities, however simple, present a reasonably foreseeable risk of injury, the law imposes a duty upon a parent, those acting in locus parentis, or organisers of those activities, to take reasonable care. That duty will often only be satisfied where it can be shown that proper instructions and/or supervision were provided. Harris v Perry [2008] EWCA Civ 907, [2008] All ER ( D) 415 ( Jul) — the ‘bouncy castle’ case — was widely regarded as a welcome departure from the...

Clin v Walter Lilly & Co Ltd [2018] EWCA Civ 490, 177 Con LR 1 What are the practical implications of this case? The ruling shows that a construction contract may carry an implied term requiring the employer to pursue planning approvals. Yet it is unlikely to amount to an unqualified duty to secure those approvals, given the inherent unpredictability surrounding approvals. In real terms, a curtailed duty on the employer to ‘use all due diligence’ to obtain approvals may leave the contractor absorbing the fallout—typically extra expense and exposure to delay damages—if a local authority behaves unreasonably. The safer course is to stipulate in the contract, in express terms, who bears responsibility for planning approvals, the scope of that responsibility, and the ramifications if approvals are not forthcoming. What was the background? Walter Lilly was engaged by Mr Clin to undertake demolition,...

Clark Hill Ltd v HMRC [2018] UKFTT 111 ( TC) What are the practical implications of this case? The ruling features noteworthy judicial comments, expressed obiter, addressing the complex question of how VAT applies where a contract is novated. The dispute centred on the VAT time of supply (the tax point) for a property disposal in which the initial purchaser had paid a deposit, yet the agreement was later novated, with completion occurring between the original vendor and a different purchaser. In a scenario without novation, the operation of the time of supply provisions in section 6 of the Value Added Tax Act 1994 ( VATA 1994) is that a deposit paid to the seller or the seller’s agent establishes a tax point. That approach is troublesome when novation intervenes, because the deposit is made under one contract while completion proceeds under another. The...

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] All ER ( D) 47 ( Feb) What are the practical implications of the decision? In this ruling, the Supreme Court confirmed there is no blanket immunity excluding police liability in the context of preventing and investigating crime. The police owe a duty of care, consistent with orthodox tort principles, not to inflict foreseeable personal injury on others by their affirmative acts. Defence practitioners have called it the most significant police case in a generation. Because the Court articulated wide principles regarding duties of care in tort and the accountability of public bodies, the ramifications extend well beyond the traditional bounds of civil claims against the police. The Court therefore reasserted conventional tort doctrine over the more recent judicial practice of resolving matters through...

R (on the application of Mott) v Environment Agency [2018] UKSC 10, [2018] All ER ( D) 77 ( Feb) What are the practical implications of the decision? This case illustrates how the courts address the concept of a ‘fair balance’ in a human rights setting. Striking that balance requires weighing the general interests of the community against the protection of an individual’s fundamental rights; the balance is not achieved where the person affected is made to carry an individual and excessive burden. What was the background to the appeal? The respondent held a leasehold interest in a salmon fishery in the Severn Estuary, which he had run as his full-time occupation for almost four decades. After the Salmon Freshwater Fisheries Act 1975 was amended with effect from 2011, the appellant was able to issue fishing licences with conditions that capped the number of fish taken. To...

Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 ( QB) What was the background? The claimant, who bore several spent convictions for drug-related offences in the past, was a habitual backer of technology ventures, among them Spotify and other firms. He also styled himself as Spotify’s Head of Special Projects. In May 2017 he took part in a podcast interview where he hinted at his past involvement with drugs and at earlier drugs convictions. In that same episode, he said his father had beaten him during his upbringing. In the aftermath, the defendant sent emails to the claimant’s solicitors and to other associates of the claimant, primarily referring to an earlier fundraising request made by the defendant. That was then followed by a letter from the defendant’s solicitors to the claimant’s solicitors asserting that statements made in the podcast interview were...

Re Various Incapacitated Persons ( Appointment of Trust Corporations as Deputies) [2018] EWCOP 3 What are the practical implications of this case? This test case lays out guidance for any trust corporation seeking appointment by the Court of Protection as property and affairs deputy for people who lack capacity. Although the corporations before the court were all linked to solicitors’ legal practices, the ruling equally applies to other regulated trust corporations (for example charities, banks and other financial institutions) and to unregulated trust corporations. As a result, every future application by a trust corporation to the Court of Protection is affected. Given the broad and growing reliance on trust corporations in this function, the decision offers clear and useful direction to the wider profession and is essential reading for anyone practising in this sphere. What was the background? The Court of Protection listed 36 matters...

Ehrentreu v IG Index Ltd [2018] EWCA Civ 79 What are the practical implications of this case? The judgment underscores that only very clear and express contractual language will suffice before a court will conclude that a party has undertaken an obligation to safeguard another from harming themselves. In particular, the court held that the appellant’s decision to remain active in the relevant market and to keep his bets open was a deliberate choice made by him, and stood apart from any breach of the Customer Agreement by the respondent. Whether approached as an issue of causation or of a failure to mitigate, it was that decision, rather than the breach, which produced the loss. Moreover, the respondent had not assumed responsibility for the risks inherent in the appellant’s continued speculation. The Court of Appeal considered that instances where contracts contain the...

Southern Gas Networks plc v Thames Water Utilities Ltd [2018] EWCA Civ 33, [2018] All ER ( D) 132 ( Jan) What are the practical implications of this case? The key takeaway for advisers to suppliers is that common law causes of action may endure alongside the detailed statutory scheme governing undertakers. That remains so even when a dedicated statutory liability clause exists that could yield a remedy on identical facts. Whether the common law persists is ultimately a matter of construing the specific provisions in play. Clauses that negate exoneration can assist, but they are not essential. The court’s reasoning draws on a well-established line of dicta: mere differences between the statute and the common law do not suffice; to displace the common law, the court must identify an ‘inconsistency’ or ‘incompatibility’ between them. For instance, if the common law would confer a more...

What are the practical implications of this case? This ruling underlines that, even where no defendant(s) have been identified, the court may still grant appropriate relief, and the absence of named parties will not block remedies, in suitable and proportionate terms. What was the background? The claimant, a transgender woman employed as an escort using a professional alias, issued a harassment claim under the Protection from Harassment Act 1997 after multiple online posts appeared about her, including assertions that she had HIV/ AIDS, alongside other details or supposed details about her sexual life, and her physical and mental health. As the claimant could not identify the perpetrator, an interim injunction was made against persons unknown to prevent ongoing harassment and/or the continued misuse of her private information. The order was served on two non-party websites......

Original news Farrar v Leongreen Ltd [2017] EWCA Civ 2211, [2018] All ER ( D) 13 ( Jan) As the landlord’s second suit advanced a distinct cause of action from the earlier possession claim, the award of mesne profits was not rendered unlawful by estoppel or any comparable doctrine. The Court of Appeal ( Civil Division) therefore dismissed the tenant’s appeal, leaving intact the mesne profits ordered for trespass. What is the significance of this case? Handed down just before Christmas 2017, the ruling in Farrar v Leongreen Ltd confirmed that a property owner may issue separate proceedings: one for possession and another for mesne profits. What is the background to the case? On 21 November 2012, Leongreen Ltd obtained a long leasehold in a flat at Artillery Mansions, Victoria Street, London from a connected company. At that point, Mr Farrar, a former business associate of the...

What are the practical implications of this case? Zurich Insurance Plc v Nightscene Ltd [2017] Lexis Citation 445. This ruling is significant, first and foremost, for its analysis of the application of the rule in Shah [2001] EWCA Civ 527 to Deeds executed by companies. Those acquainted with Shah will remember that it addressed the effectiveness of a Deed executed by private individuals. They contended the Deed was ineffective because their signatures had not been attested at the time of signing, so the requirements of s1 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) were not fulfilled. The court rejected that case, holding the individuals were estopped from denying the Deed’s validity, essentially because it appeared, on its face, to have been duly executed when it reached the receiving party. This decision logically confirms that the Shah...

What are the practical implications of this case? The bond was found to be triggered by insolvency alone because the parties had agreed a tailored clause to that effect. Even so, the ruling is of wider significance as it reinforces that, under the JCT termination regime: the contractor’s insolvency, by itself, is not a breach of contract by the contractor; and where, following insolvency, the contractor fails to remit sums due to the employer assessed under the contract—for example, the cost of engaging others to complete the works—that failure amounts to a breach of contract This distinction is important where an employer must first establish a contractor breach before calling on a performance bond. That is the position under the unamended ABI Model Form—for a suggested change on this point, see Practice Note: Amendments to ABI Model Form of Guarantee Bond. What was the...

Original news R (on the application of Bishop) v Westminster Council [2017] EWHC 3102 ( Admin) What is the significance of the decision for authorities and developers? This ruling stands as a clear caution to developers and local planning authorities ( LPAs) to strictly observe the procedural rules governing planning applications. The court condemned the developer for recklessly submitting the wrong ownership certificate and other errors on the application form, which together were misleading and deprived an interested party of the chance to make representations on the proposal. Beyond placing any planning permission obtained through misleading statements at risk of being set aside, it is a criminal offence to issue an ownership certificate that you know is false or misleading, or to do so recklessly. Sound practice is to carry out a Land Registry search of the site before lodging an...

Dhir v Saddler [2017] EWHC 3155 ( QB) What are the practical implications of this case? This uncommon ruling on a slander claim offers useful direction to practitioners on how the law will be applied in such matters. Crucially, when deciding whether serious reputational harm has been caused, it is not a numbers game—the emphasis is on the calibre, not the volume, of those to whom the words were communicated. As to damages, the judgment clarifies that where a defamatory allegation is found to be untrue, the level of compensation should reflect that conclusion. Evidence about the claimant may reduce damages, provided it is linked to the subject of the defamatory imputation. Here, the pertinent material related to the claimant’s inclination to behave (or threaten to behave) violently, aligning with the nature of the allegation. The defendant’s conduct is also relevant to the...

Original news Bohm and others v Secretary of State for Communities and Local Government [2017] EWHC 3217 ( Admin) What is the significance of the decision for decision-makers and developers? The ruling offers helpful guidance on the NPPF’s heritage provisions, which should be approached as a coherent whole and applied in a practical, purposive way, rather than read piecemeal. It draws a clear line between NDHAs, which lack statutory protection, and designated heritage assets, which benefit from it. NDHAs fall under paragraph 135 of the NPPF, requiring the application to be examined in its entirety, with a balanced judgement reached by the decision maker, based on the proposal’s overall merits. The NPPF does not prescribe the mechanics of that exercise, nor the weight to be attached to any given consideration, allowing professional judgement too. The correct methodology is that, where an NDHA...

What are the practical implications of this case? Under statutory limitation principles, an equitable set-off defence is ordinarily not caught by a time bar. Typically, limitation statutes render a claim unenforceable rather than erasing the underlying debt or liability. That is, time limits usually bar remedies without destroying the obligation itself. Hence the defence remains available. Consequently, equitable set-off, operating as a shield and not as enforcement, can still neutralise a claim for defendants who have acted a touch late. However, in this matter the High Court confirmed the parties’ contractual freedom to stipulate a different result: that their contractual time limit extinguishes the underlying liability entirely. Applying the now well-rehearsed canons of contractual construction, Mrs Justice May emphasised the need to read each agreement within its own context. This stands as a reminder to contracting parties not to assume that statutory...

Original news A Local Authority v AMc C and others [2017] EWHC 2435 ( Fam), [2017] All ER ( D) 49 ( Oct). Care orders were granted for two boys, aged 13 and 15, because remaining in their existing residential placements was judged to be in their welfare best interests. The Family Division also found that the near‑18‑year‑old brother’s presumption of capacity had not been displaced; nonetheless, an injunction was made which did not oblige him to live in any specified accommodation, but barred him from residing at his mother’s home until capacity and jurisdiction could be revisited. What is the significance of this case? Why is it important for practitioners? This appeal succeeded against the final care orders on grounds of procedural unfairness. Those final orders were imposed at a re‑listed issues resolution hearing rather than at a final hearing. The process was held to have...

The bank revealed it had reached a settlement with Paul and Nikki Turner, who were victims of a £245m ($330m) lending fraud orchestrated by six ex-staff from HBOS’s impaired assets division, all of whom were jailed earlier this year. The financial details of the deal were not made public. A Lloyds Banking Group spokesman said in a statement that the group apologises for the severe personal hardship the Turners endured and recognises their crucial contribution, over more than a decade, in campaigning relentlessly for justice for every victim of the criminal behaviour at the HBOS Reading Impaired Assets Office. To date, Lloyds has paid around £29m in compensation to 35 of the 63 businesses concerned......