Legal News

Original news Makhlouf v Secretary of State for the Home Department ( Northern Ireland) [2016] UKSC 59, [2016] All ER ( D) 93 ( Nov) The Supreme Court rejected an appeal against a deportation order made against a foreign offender, notwithstanding that his children are British citizens living in the UK. While the appellant argued that removal would violate his and his children’s rights under article 8 of the European Convention on Human Rights, the court decided that, on the evidence, he had no relationship with either child and their lives had been completely unaffected by his being their father. The court also determined that the Secretary of State was not required to undertake further enquiries concerning the appellant and his children beyond those already conducted. What was the background to the case? The appellant, a Tunisian national, married a British citizen in Tunisia in 1996. In 1997, his...

Original news Dorinda Irene Holland v Oxford City Council [2016] EWHC 2545 ( Ch) Mrs Holland, a fairground ride operator, had for many years been permitted to use two pitches at an annual two-day fair. Each year she applied to Oxford City Council (the Council) and was allocated the same two sites. After a disagreement about the pitch measurements and a neighbouring operator’s complaint that she was encroaching onto his plot, Mrs Holland commenced proceedings asserting that she held a periodic tenancy of the two pitches. What are the practical implications of this case? As a matter of principle, a ‘tenant’ can acquire an annual periodic tenancy even if the occupation spans only a few days each year. The judgment further indicates that the court will prioritise the substance of the arrangement over any wording the parties have adopted. What was the issue...

Original news Vukota- Bojic v Switzerland ( Application no 61838/10) What were the key issues considered by the European Court of Human Rights ( ECt HR)? In Vukota- Bojic v Switzerland, the ECt HR addressed two principal matters: whether covertly obtaining surveillance material amounted to a violation of ECHR, art 8 (‘right to respect for private life and family life’), and if such material was relied upon in legal proceedings, whether that would result in a breach of ECHR, art 6 (‘right to a fair hearing’) In considering whether security camera footage obtained through covert surveillance constituted an interference with the claimant’s art 8 rights, what were the main factors taken into account (the permanence of the records, refusal of the courts to destruct tapes, etc)? In essence, the court held that acquiring secret surveillance infringed ECHR, art 8. It confirmed that the scope of...

Introduction Most observers consider that, on its own, Brexit is unlikely to materially alter the regulation of the UK oil and gas sector, including activities on the UK Continental Shelf ( UKCS). This stems largely from the UK government’s longstanding control of energy policy, encompassing the development of oil and gas reserves. Core policy areas—such as licensing and taxation of exploration, appraisal, development and production—have always been, and continue to be, determined by the UK government, though elements of the industry have been shaped by the EU. Nevertheless, the referendum has set in motion other significant shifts that may have a substantial effect on the UK’s oil and gas industry and the wider energy industry for the reasons set out below. Does European law still apply? Will the current legal and regulatory framework change once withdrawal from the EU is complete? The...

Original news R (on application of Ingenious Media Holdings plc and another) v Revenue and Customs Commissioners [2016] UKSC 54, [2016] All ER ( D) 118 ( Oct) The Supreme Court ruled that statements made about the appellants by HMRC’s then Permanent Secretary for Tax to journalists at an off-the-record briefing were not justified under section 18(2)(a)(i) of the Commissioners for Revenue and Customs Act 2005 ( CRCA 2005). The court concluded that CRCA 2005, s 18(1) was designed to mirror the general principle of taxpayer confidentiality and that, properly construed, CRCA 2005, s 18(2)(a)(i) — read strictly — operates only as a limited carve-out, allowing disclosure solely where it is reasonably required for HMRC to carry out its core function. What was the background to the case? The Permanent Secretary for Tax had provided an off-the-record interview to two reporters from The Times about the...

How do you expect the provision of legal education at university level, namely the LLB, to change and adapt in order to attract the best students and promote the legal profession while also meeting market demands? We’re likely to see sharper distinctions between law schools, each appealing to particular kinds of students and forging links with different corners of the profession. With reforms proposed by the Solicitors Regulation Authority ( SRA) and the Bar Standards Board ( BSB), some programmes may resemble a fusion of academic study and the Legal Practice Course ( LPC), whilst others will, I hope, develop richer, more imaginative and multidisciplinary curricula. Have there been any recent proposals to change the structure or content of this course—for example, many argue the study of contract law in the first leaves students unprepared for when they next come across it, possibly four or more years...

Original news Hosking and another v Apax Partners LLP [2016] EWHC 1986 ( Ch), [2016] All ER ( D) 193 ( Jul) The Companies Court refused an application by the joint liquidators to pause the English proceedings they had commenced, pending the outcome of earlier litigation in the United States. The court decided that a stay was not justified and set out several reasons for that conclusion: It was not appropriate to censure the defendants for blameworthily bringing about parallel proceedings. Any judgment in the US case would not bind the defendants. The fraud allegations ought to be addressed at the earliest sensible opportunity. Nonetheless, a short stay until 3 October 2016 was ordered for case management purposes, given the imminent US ruling on forum non conveniens, which could encourage additional defendants to consent to being joined to the English...

Original news Middleton and another v Person Unknown or Persons Unknown [2016] EWHC 2354 ( QB) What should IP & IT lawyers take note of? This decision exemplifies a section 12 matter, which generally provokes little dispute. Section 12 was first examined in Cream Holdings Ltd and others v Banerjee and another [2003] EWCA Civ 103, [2003] 2 All ER 318. In Cream, the court affirmed the ‘more likely than not’ test, while preserving a discretion to grant an injunction where declining an interim order pending a full hearing would inflict substantial injustice on a claimant. Practitioners should ensure compliance with HRA 1998, s 12(4). HRA 1998, s 12(4) states: ‘ The court must have particular regard to the importance of the…right to freedom of expression and, where the proceedings relate to material which the respondent [to an application for an...

Original News Anderson v HMRC [2016] UKFTT 0565 ( TC) What was the case about? In his tax return, Mr Anderson sought £3m of relief under sections 64 and 72 ITA 2007, claiming losses from trading activities labelled ‘football development’. He had put funds into the Bafana soccer academy in South Africa, created to cultivate emerging football talent and generate income through the profitable transfer of successful players. HMRC issued a discovery assessment, asserting the losses did not stem from a trade conducted on a commercial basis with a view to profit, and that the predominant purpose of the activity was to secure a tax advantage. Why did the appellant dispute the validity of the discovery assessment? The appellant’s central challenge was that there had been no ‘discovery’. At the point the assessment was raised, HMRC, he said, lacked reasonable grounds to believe Mr Anderson had been...

Original news Eurasia Sports Ltd v Tsai and others [2016] EWHC 2207 ( QB) The Queen’s Bench Division declined an application by three Peru‑based defendants (the applicant defendants) to set aside the leave previously granted to the claimant, an online betting operator, to serve its claim form out of the jurisdiction. The applicants maintained that the court had no authority to hear the case, which alleged, among other matters, that they and eight further defendants had conspired to cause loss to the claimant. The court concluded that the claimant had made good that jurisdiction existed: it demonstrated a serious issue to be tried in relation to each head of claim, advanced a good arguable case that the claims fell within one of the jurisdictional gateways in paragraph 3.1 of the Civil Procedure Rules Practice Direction ( CPR PD), and showed that England was plainly or...

What is the ideology behind CICs? What advantages do they have over local authority control of services? At its core, the rationale for transferring a council-run service into a community interest company ( CIC) is that establishing an autonomous, community‑orientated body—protected so that assets are applied for community benefit—releases potential for the service to grow and develop in ways that may not be possible if it remains under the local authority’s control. Placing management within a new entity is expected to free the CIC from inflexible managerial and pay frameworks associated with local authorities, together with stark financial constraints and the limited scope to secure third‑party funding. In turn, the CIC is anticipated to be more agile and to possess greater capacity for innovation. In many cases, services that are spun out could instead be operated by an independent charity. A key perceived reason for...

Original news Re Ralls Builders Ltd (in liquidation); Grant and another v Ralls and others [2016] EWHC 1812 ( Ch), [2016] All ER ( D) 113 ( Jul). The Chancery Division determined that, as the joint liquidators’ application under section 214 of the Insolvency Act 1986 for a contribution from the company’s directors on a wrongful trading basis had failed, it was not appropriate to order the directors to add to the company’s assets in respect of the liquidators’ fees and expenses incurred in examining and advancing that unsuccessful claim. What was the background to this judgment? This was a wrongful trading claim brought under IA 1986, s 214. The liquidators, Steven Grant of Wilkins Kennedy and James Tickell of Portland, sought a £1.5m contribution to the company’s assets from three former directors of a South East building company that entered...

Original news Grant and another v Baker and another [2016] EWHC 1782 ( Ch), [2016] All ER ( D) 108 ( Jul) The Chancery Division upheld an appeal by the trustees in bankruptcy, setting aside an order that would have delayed the sale of the bankrupt’s property for as long as his adult daughter, who suffered from global developmental delay, dyspraxia and obsessive compulsive disorder ( OCD), continued to live there. The court agreed that the district judge had been right to find exceptional circumstances within section 335A of the Insolvency Act 1986 ( IA 1986), recognising that such circumstances can include a situation where a bankrupt’s child has medical or mental health conditions and would be adversely affected by moving due to a sale. Nevertheless, it concluded that the judge had materially erred in discretion by imposing an open-ended...

Original news Hall and another v Elia and another [2016] EWHC 1697 ( Ch), [2016] All ER ( D) 63 ( Jul) The Chancery Division refused a mother’s application for permission to appeal a registrar’s ruling that a deed, by which her son purported to assign his property interest to her, was a sham, or else should be set aside under sections 339, 340 or 423 of the Insolvency Act 1986 ( IA 1986). A Chancery judge held that, as the registrar had already debarred the mother from defending the claim, permission to challenge his decision on the assignment should be refused. What was the background to the appeal? The mother and son said a deed of assignment transferred his share to her before the bankruptcy order against him. His trustee in bankruptcy asserted a beneficial interest, as did his company’s...

Original news: Mascareignes Sterling Co Ltd v Chang Cheng Esquares Co Ltd ( Mauritius) [2016] UKPC 21 What was this case about? Mascareignes retained Chang Cheng under an amended JCT Standard Form of Contract (1980 Edition) with the Contractor’s Designed Portion Supplement to design and construct an office building in Port Louis, Mauritius. During delivery, the character of the works evolved, resulting in substantial additional and substituted items (variations). At completion, the quantity surveyor—who effectively administered the contract—issued the final account, valuing the majority of the works on a measurement-and-valuation basis because of the extent of the variations. Mascareignes refused payment, so Chang Cheng commenced arbitration and succeeded in obtaining an award for the sum certified in the final account. Mascareignes appealed, contending the arbitrator was wrong to: sanction the widespread use of measurement and valuation in the final account, holding either that the...

Sword Services Ltd and others v Revenue and Customs Commissioners What was this case about? The taxpayers brought a judicial review to contest payment notices ( PPNs) issued by HMRC to members (ie partners) of several film production partnerships, seeking to have those notices quashed. PPNs are a form of accelerated payment notice ( APN) given to partnership members. As with an APN, a PPN requires tax to be paid upfront while HMRC’s enquiries into the relevant arrangements are concluded. For more on the accelerated payments regime, see Practice Note: Accelerated payment notices. The taxpayers argued that the PPNs were unlawful on two bases: They were issued to members of a limited liability partnership ( LLP), but schedule 32 to the FA 2014 (the PPN legislation) does not, in the taxpayers’ view, authorise HMRC to issue PPNs to LLP members; it applies only to other forms of...

Original news Marlbray Ltd v Laditi and another [2016] EWCA Civ 476, [2016] All ER ( D) 202 ( May). The Court of Appeal ( Civil Division) partly upheld a property developer’s appeal against a Chancery Division ruling. The Chancery Division had found that the developer’s contract for the sale of a lease to a husband and wife, signed by the husband for himself and, purportedly, on his wife’s behalf, was invalid. What was the factual background to the appeal? The developer had sold units off-plan in an “apart-hotel” being developed. The husband executed what appeared to be an agreement conferring on him and his wife a 999-year lease of one unit. The document identified the husband and wife as joint purchasers. He paid a 25% deposit and the parties exchanged contracts. When the couple failed to secure a mortgage, the developer served notice...

Background e IDAS Regulation: Regulation ( EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/ EC What are the principal changes ushered in by the e IDAS Regulation? In what respects will the current regime be altered? Although signatures are commonly used on commercial paperwork, under English law a document generally need not be signed to have legal force, save for particular classes including: guarantees consumer credit agreements sales of real property, or wills When electronic formats such as fax and email emerged in the 1980s and 1990s, the courts in England adopted a notably liberal stance, treating even a telex answerback, generated without human action, as a valid signature. As a result, Directive 1999/93/ EC (the 1999 e Signature Directive), which came before the e IDAS...

Inconsistent pleading between court and arbitration claims permitted ( ED& F Man Sugar v T& L Sugar) Practical implications This judgment confirms that: A determination in arbitration or court proceedings between A and B does not bind A in separate arbitration or court proceedings between A and C ( Lincoln National). A statement of truth concerns only the party’s belief in the factual matters pleaded and not assertions of legal conclusion, while reiterating the significance of statements of truth and the penalty for abusing them (para [12]). Accordingly, in an arbitration between the claimant and SRB, the claimant could contend that title to the property had passed to SRB, whilst in parallel issuing court proceedings against T& L Sugars ( T& L) for conversion premised on reliance upon a retention of title clause in its sale contract with SRB. How did the...

Practical implications This judgment reinforces the established approach in the authorities for identifying when a duty of care can arise in cases of negligent misstatement. It emphasises the need to show a special relationship between the author of the statement and the person relying upon it, captured by the assumption of responsibility test. If such a relationship is absent, the analysis must then address whether loss was foreseeable, the closeness of the parties’ relationship, and, ultimately, whether imposing a duty would be fair, just and reasonable in the circumstances. The authorities in Hedley Byrne, Caparo and Customs and Excise Commissioner were each approved. For further guidance on negligent misstatement, see Practice Notes: Negligent misstatement—founding a claim Negligent misstatement—defences and remedies How did the negligent misstatement issues arise in this case? The club engaged Burlington to obtain references for potential players at the club....