BAILII: Recent Decisions

Posted June 24th, 2016 in law reports by tracey

Supreme Court

MS (Uganda) v Secretary of State for the Home Department [2016] UKSC 33 (22 June 2016)

MP (Sri Lanka) v Secretary of State for the Home Department [2016] UKSC 32 (22 June 2016)

Taiwo & Anor v Olaigbe & Ors [2016] UKSC 31 (22 June 2016)

D (A Child), Re [2016] UKSC 34 (22 June 2016)

Brown & Anor v Stonegale Ltd & Anor [2016] UKSC 30 (22 June 2016))

Court of Appeal (Civil Division)

Blackwood v Birmingham & Solihull Mental Health NHS Foundation Trust [2016] EWCA Civ 607 (23 June 2016)

A (A Child), Re [2016] EWCA Civ 572 (23 June 2016)

FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605 (23 June 2016)

Zumax Nigeria Ltd v First City Monument Bank Plc [2016] EWCA Civ 567 (23 June 2016)

Begg v HM Treasury [2016] EWCA Civ 568 (23 June 2016)

Broadview Energy Developments Ltd v The Secretary of State for Communities and Local Government & Ors [2016] EWCA Civ 562 (22 June 2016)

ASDA Stores Ltd v Brierley & Ors [2016] EWCA Civ 566 (22 June 2016)

Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 (22 June 2016)

Siddique, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 570 (21 June 2016)

Grafton Group (UK) Plc & Anor v Secretary of State for Transport & Anor [2016] EWCA Civ 561 (21 June 2016)

Heis & Ors v MF Global UK Services Ltd [2016] EWCA Civ 569 (21 June 2016)

Secretary of State for the Home Department v Minh [2016] EWCA Civ 565 (20 June 2016)

Court of Appeal (Criminal Division)

West & Anor, R v [2016] EWCA Crim 742 (21 June 2016)

High Court (Administrative Court)

Ezz, R (on the application of) v HM Treasury [2016] EWHC 1470 (Admin) (23 June 2016)

Sword Services Ltd & Ors v HM Revenue & Customs [2016] EWHC 1473 (Admin) (23 June 2016)

The Friends of Finsbury Park, R (on the application of) v Festival Republic Ltd & Anor [2016] EWHC 1454 (Admin) (22 June 2016)

AA, R (on the application of) v Secretary of State for the Home Department & Anor [2016] EWHC 1453 (Admin) (20 June 2016)

High Court (Chancery Division)

Vanquish Properties (UK) Ltd Partnership v Brook Street (UK) Ltd [2016] EWHC 1508 (Ch) (23 June 2016)

High Commissioner for Pakistan in the United Kingdom v Prince Mukkaram Jah, His Exalted Highness the 8th Nizam of Hyderabad [2016] EWHC 1465 (Ch) (21 June 2016)

High Court (Commercial Court)

ADM Asia-Pacific Trading PTE Ltd v Toepfer International Asia PTE Ltd & Anor [2016] EWHC 1427 (Comm) (20 June 2016)

High Court (Queen’s Bench Division)

Salekipour & Anor v Parmar & Anor [2016] EWHC 1466 (QB) (23 June 2016)

Cyprus Popular Bank Public Co Ltd v Vgenopoulos & Ors [2016] EWHC 1442 (QB) (22 June 2016)

Kupeli & Ors v Sirketi (t/a Cyprus Turkish Airlines) & Anor [2016] EWHC 1478 (QB) (21 June 2016)

Decorus Ltd v Penfold & Anor [2016] EWHC 1421 (QB) (20 June 2016)

Source: www.bailii.org

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BAILII: Recent Decisions

Posted June 20th, 2016 in law reports by tracey

Supreme Court

BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc & Anor [2016] UKSC 29 (16 June 2016)

McDonald v McDonald & Ors [2016] UKSC 28 (15 June 2016)

McBride v Scottish Police Authority (Scotland) [2016] UKSC 27 (15 June 2016)

Court of Appeal (Civil Division)

Blue Bio Pharmaceuticals Ltd & Anor v Secretary of State for Health & Anor [2016] EWCA Civ 554 (17 June 2016)

Burnden Holdings (UK) Ltd v Fielding & Anor [2016] EWCA Civ 557 (17 June 2016)

Lee v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 558 (17 June 2016)

Mott, R (on the application of) v Environment Agency & Anor [2016] EWCA Civ 564 (17 June 2016)
Mortgage Express v Lambert [2016] EWCA Civ 555 (17 June 2016)

S1, T1, U1 & V1 v Secretary of State for the Home Department [2016] EWCA Civ 560 (16 June 2016)

High Court (Administrative Court)

XY, R (on the application of) v Maidstone Borough Council & Anor [2016] EWHC 1436 (Admin) (17 June 2016)

Bowen v Secretary of State for Home Department and the Government of the United States of America [2016] EWHC 1400 (Admin) (17 June 2016)

Cham, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 2016 (Admin) (17 June 2016)

High Court (Chancery Division)

Singh v Singh & Ors [2016] EWHC 1432 (Ch) (17 June 2016)

Ghadami v Bloomfield & Ors [2016] EWHC 1448 (Ch) (17 June 2016)

Collins v Collins & Ors [2016] EWHC 1423 (Ch) (15 June 2016)

Source: www.bailii.org

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Chetwynd and another v Tunmore and another – WLR Daily

Posted June 17th, 2016 in causation, fisheries, law reports, statutory duty, water by tracey

Chetwynd and another v Tunmore and another: [2016] EWHC 156 (QB)

‘The claimants alleged that the excavation of lakes by the defendants on the defendants’ land, and the abstraction of underground water as a result, had adversely affected the claimants’ fishery, in particular the water levels in the ponds therein. They issued a claim against the defendants, inter alia, under section 48A of the Water Resources Act 1991, seeking damages for the loss of fish from the ponds, the loss of income from the fishery, the costs of remediating the ponds, expenses incurred and for loss of amenity. The defendants denied liability on the basis that, under section 48A, they could only be liable for loss or damage caused by the abstraction which could reasonably have been foreseen by them and that, in any event, the claimants had failed to prove on the balance of probabilities that the defendants’ abstraction of water by the excavation of the lakes was the effective cause of the claimants’ alleged loss or damage.’

WLR Daily, 4th February 2016

Source: www.iclr.co.uk

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BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 plc and another – WLR Daily

Posted June 17th, 2016 in banking, contracts, interpretation, law reports, trusts by tracey

BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 plc and another [2016] UKSC 29

‘In March 2009, the financial services regulatory authority conducted a stress test of a banking group against the then applicable benchmark of a ratio of core tier 1 (“CT1”) capital to risk-weighted assets. The test demonstrated a shortage of capital. As a result, the defendants, two wholly-owned subsidiaries of the group, issued contingent convertible securities, described as enhanced capital notes. The notes, which carried a relatively high rate of interest, were not redeemable until specified maturity dates between 2019 and 2032 unless they were converted into shares on the occurrence of a conversion trigger, being any time when the group’s CT1 ratio fell below 5%, or they were redeemed early by the group on the occurrence of a capital disqualification event. Under clause 19 of the notes’ terms and conditions, contained in the trust deed, a capital disqualification event was deemed to have occurred if the notes ceased to be taken into account for the purposes of any stress test applied by the regulatory authority in respect of the group’s “consolidated CT1 ratio”. In 2013 regulatory changes replaced CT1 capital with a more restrictive category, common equity tier 1 (“CET1”) capital. The regulatory authority announced that the notes would now need to have a trigger for conversion higher than 5.125% CET1 in order to count as core capital but, under the terms of the notes, conversion would only be triggered if the group’s CET1 ratio fell to 1%. In December 2014 the regulatory authority carried out a stress test which did not take into account the notes and, as a result, the group announced that a capital disqualification event had occurred and that it was entitled to redeem the notes. The claimant trustee, on behalf of the note holders, sought a declaration that a capital disqualification event had not occurred, contending that the December 2014 stress test was not relevant for the purposes of clause 19 because it had been conducted by reference to a CET1 ratio rather than a consolidated CT1 ratio and that, alternatively, the fact that the notes had not been taken into account in the December 2014 stress test was not enough to trigger a capital disqualification event, rather the notes had to have been disallowed in principle from being taken into account for the purposes of the tier 1 ratio. The judge rejected the trustee’s first argument but accepted the second argument and declared that a capital disqualification event had not occurred. On the defendants’ appeal, the Court of Appeal, in construing the trust deed, took into account statements in the exchange offer memorandum, a letter from the group’s chairman and documents issued by the regulatory authority at and before the time at which the notes had been issued, and it allowed the appeal, holding that a capital disqualification event had occurred and that, therefore, the defendants were entitled to redeem the notes.’

WLR daily, 16th June 2016

Source: www.iclr.co.uk

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BAILII: Recent Decisions

Posted June 17th, 2016 in law reports by sally

High Court (Commercial Court)

High Court (Family Division)

High Court (Patents Court)

High Court (Queen’s Bench Division)

High Court (Technology and Construction Court)

Source: www.bailii.org

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BAILII: Recent decisions

Posted June 16th, 2016 in law reports by tracey

Court of Appeal (Civil Division)

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 (16 June 2016)

Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552 (14 June 2016)

Barons Bridging Finance 1 Ltd & Ors v Barons Finance Ltd [2016] EWCA Civ 550 (14 June 2016)

MVF 3 Aps & Ors v Bestnet Europe Ltd & Ors [2016] EWCA Civ 541 (13 June 2016)

AR, R (on the application of) v Greater Manchester Police & Anor [2016] EWCA Civ 490 (10 June 2016)

F (Children), Re [2016] EWCA Civ 546 (09 June 2016)

Alexander (representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd [2016] EWCA Civ 496 (08 June 2016)

Court of Appeal (Criminal Division)

Evans, R v [2016] EWCA Crim 671 (10 June 2016)

Ahmed v R [2016] EWCA Crim 670 (09 June 2016)

Awoyemi & Ors v R [2016] EWCA Crim 668 (08 June 2016)

AXN v The Queen [2016] EWCA Crim 590 (27 May 2016)

High Court (Administrative Court)

Tainton, R (on the application of) v HM Senior Coroner for Preston and West Lancashire & Anor [2016] EWHC 1396 (Admin) (16 June 2016)

Khaled, R (on the application of) v Secretary of State for the Home Department (No 2) [2016] EWHC 1394 (Admin) (15 June 2016)

S (a child) v NHS England [2016] EWHC 1395 (Admin) (15 June 2016)

Rhoscrowther Wind Farm Ltd v The Welsh Ministers & Anor [2016] EWHC 1388 (Admin) (09 June 2016)

The City and County of Swansea v Swansea Crown Court & Anor [2016] EWHC 1389 (Admin) (09 June 2016)

Adam, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1352 (Admin) (09 June 2016)

Ibrahim, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1347 (Admin) (09 June 2016)

Wright, R (on the application of) v Forest of Dean District Council & Anor [2016] EWHC 1349 (Admin) (09 June 2016)

Hossain & Ors v Secretary of State for the Home Department (Rev 1) [2016] EWHC 1331 (Admin) (07 June 2016)

High Court (Chancery Division)

Aidiniantz v The Sherlock Holmes International Society Ltd [2016] EWHC 1392 (Ch) (15 June 2016)

Heraeus Medical GmbH & Anor v Biomet UK Healthcare Ltd & Ors [2016] EWHC 1369 (Ch) (15 June 2016)

Collins v Collins & Ors [2016] EWHC 1423 (Ch) (15 June 2016)

Janus Capital Management LLC v Safeguard World International Ltd [2016] EWHC 1355 (Ch) (14 June 2016)

The Khan Partnership LLP v Infinity Distribution Ltd [2016] EWHC 1390 (Ch) (14 June 2016)

Hanspaul & Anor v Ward & Ors [2016] EWHC 1358 (Ch) (13 June 2016)

Pineport Ltd v Grangeglen Ltd [2016] EWHC 1318 (Ch) (13 June 2016)

Jones v Longley & Ors [2016] EWHC 1309 (Ch) (03 June 2016)

Hawk Recovery Ltd v Hall & Ors [2016] EWHC 1307 (Ch) (03 June 2016)

Streather & Anor v Bodker [2016] EWHC 1311 (Ch) (03 June 2016)

Ross & Anor v Gaffney & Anor [2016] EWHC 1255 (Ch) (02 June 2016)

Lloyd v Jones & Ors [2016] EWHC 1308 (Ch) (02 June 2016)

Source: http://www.bailii.org

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R+V Versicherung AG v Robertson & Co SA – WLR Daily

R+V Versicherung AG v Robertson & Co SA [2016] EWHC 1243 (QB)

‘The claimant reinsurer, a German company, engaged the defendant, a Swiss company, to provide loss-adjusting services in joint instruction with another reinsurer, AIG, a New Zealand-based company, which was already instructing the defendant. When a dispute arose between the claimant and the defendant concerning the performance of its loss-adjusting services, the claimant brought proceedings in England on the basis that it had contracted with the defendant on terms contained in a master agreement made between the defendant and another AIG company which provided for application of English law and the exclusive jurisdiction of the English courts. The claimant served the proceedings on the defendant, relying on article 23 of the Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 2007. The defendant, denying that the terms of the master agreement had been incorporated into its contract with the claimant, applied to set aside service of the proceedings for want of jurisdiction.’

WLR Daily, 27th May 2016

Source: www.iclr.co.uk

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Cavanagh and others v Secretary of State for Work and Pensions – WLR Daily

Cavanagh and others v Secretary of State for Work and Pensions [2016] EWHC 1136 (QB)

The first and second claimant employees were, it was assumed for present purposes, employed by the defendant employer under civil service terms and conditions and various collective agreements. Under “check-off arrangements” in the employer’s deductions from pay policy, the employees had opted for their subscriptions to the third claimant trade union to be paid by deduction from their salary and paid by the employer to the union. Latterly the check-off arrangements had been included in the employer’s salary policy published on the staff intranet. When the employer ended the check-off arrangements, the claimants brought a claim against it, contending that the employees had a contractual right to insist that the employer continue with the arrangement enforceable by the trade union under the Contracts (Rights of Third Parties) Act 1999.

WLR Daily, 13th May 2016

Source: www.iclr.co.uk

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Staffordshire County Council v K and others – WLR Daily

Staffordshire County Council v K and others [2016] EWCOP 27

‘An incapacitated adult (“K”), who had been severely injured in a road traffic accident, was awarded substantial damages in court proceedings which were used by his property and affairs deputy, a private trust corporation, to provide a specially adapted residence and to fund the regime of care and support provided by private sector providers. The local authority, having been informed of the arrangements for K’s care and the arrangements having been registered with the Care Quality Commission, applied to the Court of Protection for a welfare order under section 16 of the Mental Capacity Act 2005. The parties accepted that the arrangements constituted a deprivation of liberty satisfying two of three components of a deprivation of liberty within article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, but the Secretary of State contended that the third component, namely the attribution of responsibility to the state, did not apply to the privately funded and arranged care regime (and to others in an equivalent position), so that the care regime could lawfully be put in place without a welfare order being made under the Act.’

WLR Daily, 25th May 2016

Source: www.iclr.co.uk

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Sino Channel Asia Ltd v Dana Shipping and Trading Pte Singapore and another – WLR Daily

Posted June 8th, 2016 in arbitration, contracts, jurisdiction, law reports, service, third parties by sally

Sino Channel Asia Ltd v Dana Shipping and Trading Pte Singapore and another [2016] EWHC 1118 (Comm)

‘The charterer engaged a third party company to arrange contracts which would be concluded in the charterer’s name but performed by the third party. Through the third party, the charterer entered into a contract of affreightment with the owner. The principal contact point between the owner and the charterer was a junior employee at the third party company. When a dispute arose the owner appointed an arbitrator and e-mailed their notice of arbitration to the third party’s employee, calling on the charterer to appoint their arbitrator. The charterer having not responded, the owner’s arbitrator, in accordance with the terms of the contract, proceeded as the sole arbitrator and made an award in favour of the owner. The charterer applied, pursuant to section 72(1)(b)(c) of the Arbitration Act 1996, for a declaration that the award had been made without jurisdiction, on the ground that the third party’s employee had not had authority to accept service of notice of commencement of arbitration proceedings on the charterer’s behalf and that service on him had not been in accordance with section 76 of the 1996 Act. The owner contended that the employee had had actual implied authority and/or ostensible authority to receive notice of arbitration on the charterer’s behalf.’

WLR Daily, 20th May 2016

Source: www.iclr.co.uk

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Singh v Secretary of State for the Home Department – WLR Daily

Posted June 8th, 2016 in appeals, bias, law reports, professional conduct, tribunals by sally

Singh v Secretary of State for the Home Department [2016] EWCA Civ 492

‘When a party seeks to appeal to the Upper Tribunal on the grounds that there had been bias or misconduct on the part of the First-tier Tribunal, the following guidance should be followed. (1) Any application for permission to appeal, if based (in whole or part) on such a ground, should be closely scrutinised. Such an allegation, if to be sufficient to merit the grant of permission at all, should ordinarily be expected to be properly particularised and appropriately evidenced. (2) If an allegation of bias or misconduct is raised which is adjudged sufficient to merit the grant of permission to appeal then it should be normal practice for the Upper Tribunal thereafter to obtain the written comments of the judge concerned. (3) Such written comments of the judge, where obtained, should be provided to the parties for the purposes of the appeal hearing in the Upper Tribunal. In addition, any such written comments should be retained on the file pending any possible further appeal to the Court of Appeal. (4) There may be some cases where it may be necessary to obtain the tribunal judge’s own note or record of the entire hearing since proceedings in the First-tier Tribunal are not ordinarily recorded and no transcript of the hearing will be available. (5) It will normally be likely to be of assistance to the Upper Tribunal to know what the advocate for the respondent has to say as to what happened or what was said before the First-tier Tribunal. Providing such observations is more likely to help produce a fuller and accurate picture of what actually happened or was said in the First-tier Tribunal. Where the advocate does not have a precise note or recollection, the Upper Tribunal can be told. (6) Whether oral evidence is needed at the hearing of the appeal on the issue of what happened or what was said below should be carefully considered by the parties. (7) It is likely to be important in appeals of this nature for the file to be reviewed and any directions given by an Upper Tribunal judge in good time before the substantive appeal hearing (para 53).’

WLR Daily, 27th May 2016

Source: www.iclr.co.uk

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HC Trading Malta Ltd v Tradeland Commodities SL – WLR Daily

Posted June 8th, 2016 in arbitration, contracts, jurisdiction, law reports by sally

HC Trading Malta Ltd v Tradeland Commodities SL [2016] EWHC 1279 (Comm)

‘The parties were in communication in relation to a proposed transaction whereby the defendant would purchase 250,000mt of clinker from the claimant. However, no actual shipments occurred and some months after the last significant communication between the parties, the claimant asserted that there was a binding contract, containing a London arbitration clause, that the defendant was required to perform. The defendant denied that any such contract had been concluded. The claimant made clear its settled intention to make a contractual claim against the defendant in a London arbitration pursuant to the arbitration clause, so that such an arbitration could be viewed as imminent. The defendant, denying the existence of the contract, had no claim of its own against the claimant, and indicated that it would contest jurisdiction once the arbitration proceedings were commenced. The claimant, prior to commencing arbitration proceedings, issued a claim in the High Court by which it sought a declaration that there was a binding arbitration agreement subject to English law and which covered its proposed claims. The defendant applied, inter alia, to have that claim set aside.’

WLR Daily, 2nd June 2016

Source: www.iclr.co.uk

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Regina v AXN; Regina v ZAR – WLR Daily

Regina v AXN; Regina v ZAR [2016] EWCA Crim 590

‘Where an offender convicted of a crime has rendered assistance to the police or other law enforcement authorities, the police may provide the court with information regarding the assistance rendered in a confidential letter signed by a senior police officer, known as a “text”, but the obligation of the police to provide a text when requested by the offender is a very limited one. Although the court will always expect the police to inform the court of the fact that the police have made a decision not to provide a text as matter of case management, it is sufficient if the police merely state that they will not provide any information to the court in relation to the offender’s assertions of assistance. The police are not required to give any explanation of their reasons for the decision, or the stage at which they decided not to provide any information. The police need do no more than say that the police will not provide any information to the court. Such a statement to the court can generally be provided by letter and not by text. There may unusually be circumstances where the police would have to reveal in the reply the assertions of the offender that he had provided assistance; in such a case it might therefore be necessary to provide the response in the form of a text. Whether it is provided by letter or text, it must be signed by a senior officer of police (normally a superintendent) or an equivalent senior official in other law enforcement agencies (paras 6, 18, 22).’

WLR Daily, 27th May 2016

Source: www.iclr.co.uk

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In re A (A Child) (Baby Relinquished for Adoption: Case Management)

In re A (A Child) (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25

‘A, a baby born in England to Latvian parents, was relinquished at birth for adoption and quickly placed with foster parents who were approved to adopt. On the understanding that there was no one within the extended natural family, either in England or in Latvia, in a position to care for A, and with the consent of the birth parents given in accordance with sections 19 and 20 of the Adoption and Children Act 2002, the local authority proceeded to convert A’s short-term arrangements to an adoptive placement and notified the Latvian central authority of A’s situation. The foster parents, with whom A had lived for much of his life, applied to adopt him. The Latvian central authority, having made its own enquiries of relatives in Latvia, identified the maternal grandmother as a potential long-term carer for A, had completed a favourable preliminary suitability assessment and commissioned a full suitability assessment. The central authority opposed the adoption of A in England and submitted its concerns that the approach of the English courts towards adoption cases placed insufficient weight on the rights of a child to grow up in his inherited culture and was therefore potentially contrary to articles 36 and 37 of the Vienna Convention on Consular Relations 1963 and a breach of articles 8 and 20 of the United Nations Convention on the Rights of the Child 1989. The birth mother, who had deliberately not informed her wider family in Latvia of the proposed adoption, continued to support adoption by the foster parents, maintaining her opinion that an education and upbringing in England would be in A’s best interests and that her mother would find it difficult physically and financially to care for A. At a case management hearing, the children’s guardian appointed for A recommended an adjournment to enable completion of the grandmother’s assessment. In circumstances where the prospective adopters, the birth parents and the local authority all supported the adoption, where factors from the welfare checklist in section 1(4) of the 2002 Act pointed towards adoption, and where a delay in making a decision was likely to prejudice A’s welfare, the issue before the judge was whether he should make an adoption order without having considered the substantial assessment of the suitability of the maternal grandmother in Latvia as A’s long-term carer.’

WLR Daily, 6th May 2016

Source: www.iclr.co.uk

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Winterburn and another v Bennett and another – WLR Daily

Posted June 8th, 2016 in appeals, easements, law reports, parking, prescription, rights of way, tribunals by sally

Winterburn and another v Bennett and another [2016] EWCA Civ 482

‘The claimant owners of a fish and chip shop claimed as a result of use over a number of years to have acquired by prescription the right for themselves and others using their premises to park on land comprising part of a car park belonging to the defendants. The defendants’ premises, which were next to the car park, had been used as a club and users of those premises used the car park. The entrance to the car park was adjacent to the claimants’ shop. The claimants had operated the shop from about 1987 or 1988 until 2012. Throughout that time, their suppliers had up to nine times a week pulled off the road into the disputed part of the car park and parked there for long enough to make their deliveries, and their customers had parked on the disputed land while they bought their fish and chips. On the whole that use of part of the car park did not interfere with the s’ operations but over a seven-year period there were 12 to 15 occasions on which the defendants asserted ownership of the disputed land, and, expressly or impliedly, asserted that the claimants and their suppliers and customers had no right to park on it. At all times until 2007 there was a sign attached to the wall of the building on one side of the entranceway to the car park, erected on behalf of the defendants, stating “Private car park. For the use of Club patrons only. By order of the Committee”, and a similar sign in the window of the club premises. The claimants claimed that their right to park, acquired by prescription by “lost modern grant”, had been established by their 20 years’ uninterrupted user “as of right”, namely, without force, without secrecy and without permission. The First-tier Tribunal found that, although the two signs were clearly visible, they were insufficient to prevent the claimants from acquiring the claimed parking rights. The Upper Tribunal allowed the defendants’ appeal, reversing that finding.’

WLR Daily, 25th May 2016

Source: www.iclr.co.uk

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Hosking and another v Slaughter and May – WLR Daily

Posted June 3rd, 2016 in administrators, costs, insolvency, law reports by sally

Hosking and another v Slaughter and May [2016] EWCA Civ 474

‘During a company’s administration the administrators employed a firm of solicitors and agreed their fees. The company was wound up and the liquidators were subsequently appointed. Shortly thereafter the administrators approved the solicitors’ final invoice which post-dated the liquidators’ appointment. The liquidators applied to the court for an order for a detailed assessment of the costs agreed between the administrators and the solicitors, pursuant to rule 7.34 of the Insolvency Rules 1986. The registrar concluded that the administrators could agree and pay the fees of the solicitors and there was neither power under rule 7.34 nor inherent jurisdiction for the court to order a detailed assessment of costs. The judge dismissed the liquidators’ appeal against the registrar’s order refusing a detailed assessment of costs but allowed the appeal in respect of the final invoice, concluding that rule 7.34 did not apply to former administrators so the final invoice had not been properly approved and would have to be approved by the liquidators. The liquidators appealed against the judge’s decision not to order a detailed assessment and the solicitors appealed against the order that the final invoice had not been properly approved.’

WLR Daily, 24th May 2016

Source: www.iclr.co.uk

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Regina (Shindler and another) v Chancellor of the Duchy of Lancaster and another – WLR Daily

Regina (Shindler and another) v Chancellor of the Duchy of Lancaster and another [2016] EWCA Civ 469

‘The claimants were British nationals who, exercising their rights of free movement, had moved to European Union member states in the 1980s and remained living respectively in Italy and Belgium. They were not entitled to vote in the European Union referendum by section 2 of the European Union Referendum Act 2015 since they had last been registered to vote in a United Kingdom election more than 15 years ago. The 2015 Act adopted the franchise for United Kingdom parliamentary elections, including the 15-year rule. The claimants sought judicial review, claiming that the 15-year rule constituted a restriction on their rights of free movement which was not objectively justified, by way of a declaration that section 2 of the 2015 Act was incompatible with their directly effective European Union law rights. Article 50(1) of the EU Treaty provided that any member state could withdraw from the European Union in accordance with its own constitutional arrangements. The Divisional Court granted permission to proceed but refused the claim, holding that (i) section 2 of the 2015 Act fell within the scope of European Union law so that their rights of free movement were in principle engaged; (ii) section 2 was not a restriction on their rights of free movement; (iii) if section 2 were such a restriction, it was objectively justified as a proportionate means of achieving a legitimate objective, namely of testing the strength of a British citizen’s links with the United Kingdom over a significant period of time; and (iv) the claimants were not disentitled to a remedy on account of delay.’

WLR Daily, 20th May 2016

Source: www.iclr.co.uk

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Handley and another v Luke Jackson Solicitors (a firm); Lopes v Croydon London Borough Council; Christie Owen & Davies Ltd v Awan and another – WLR Daily

Handley and another v Luke Jackson Solicitors (a firm); Lopes v Croydon London Borough Council; Christie Owen & Davies Ltd v Awan and another [2016] EWCA Civ 465

‘Where the County Court has made a decision on appeal from a district judge or deputy district judge the position as to an appeal from the County Court’s decision is as follows. (i) If the County Court has heard the appeal and ruled on the issues determined by the district judge (including the validity or otherwise of the claims, the relief to be granted and the costs of the hearing before the district judge) then, by virtue of article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, any appeal will lie only to the Court of Appeal. Permission must be sought from the Court of Appeal, pursuant to CPR r 52.13, and the second appeal test, set out in section 55(1) of the Access to Justice Act 1999, will apply. (ii) In respect of the costs of the appeal to the County Court, any appeal will lie to the Court of Appeal, pursuant to article 5 of the 2000 Order, but the second appeal test will not apply. (iii) It would be open to the County Court judge to grant permission to appeal to the Court of Appeal in respect of the costs of the appeal to the County Court and the normal test for permission will apply. It would also be open to the Court of Appeal to grant permission applying the same test. (iv) If there has not been what can properly be regarded as a hearing of the appeal, any appeal (which is almost certainly to be one on costs) is to the High Court judge and the normal test will apply (paras 34, 41–42, 44–47, 51, 52, 54, 55).’

WLR Daily, 24th May 2016

Source: www.iclr.co.uk

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Regina (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court – WLR Daily

Regina (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court [2016] EWCA Civ 478

‘The Disciplinary Tribunal of the Council of the Inns of Court, having determined disciplinary proceedings in favour of a non-practising barrister who had represented herself at the hearing, ordered the Bar Standards Board to pay her costs and appointed an assessor to determine the amount. Treating the Civil Procedure Rules as persuasive, the assessor took the view that by reason of her status as a barrister and the fact that she had conducted the proceedings herself, the barrister had established financial loss sufficient to allow recovery of two thirds of the rate which a solicitor would have charged had CPR r 48.6 applied. He therefore assessed her costs in the sum of £27,521·50 for 166 hours of work, a figure not in dispute. The award included the costs of her time at the rate of £120 per hour. The board claimed judicial review of that decision, contending that the barrister was entitled to no more than that to which a litigant in person would have been entitled, and that the expenditure of her time and skill did not amount to financial loss within the meaning of CPR r 48.6(4)(a). The Divisional Court, allowing the claim in part, held that the correct basis of assessing costs was in accordance with regulation 31 of the board’s Disciplinary Tribunals Regulations 2009 as amended, namely, to award such costs as the tribunal thought fit, the Civil Procedure Rules being neither applicable nor persuasive, and the financial loss of a barrister acting in person defending disciplinary proceedings included the expenditure of the barrister’s own professional skill. The court therefore held that the barrister was entitled to the costs represented by her expenditure of professional skill in successfully defending the charges brought against her. The court concluded that an hourly rate of £120 was too high since she had not been practising at the time, and accordingly substituted an award of costs calculated at £60 per hour. The court further ordered the barrister, as an interested party in the proceedings,to pay 60% of the board’s costs of the judicial review proceedings.’

WLR Daily, 11th May 2016

Source: www.iclr.co.uk

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In re Zavarco (No 2); Blomqvist v Zavarco plc and another (No 2); Blomqvist v Teoh and others – WLR Daily

Posted June 3rd, 2016 in company directors, company law, estoppel, law reports, shareholders by sally

In re Zavarco (No 2); Blomqvist v Zavarco plc and another (No 2); Blomqvist v Teoh and others [2016] EWHC 1143 (Ch)

‘The shareholder claimed to have purchased a 66·6% share in the company, a United Kingdom holding company of a group operating in South East Asia. Following a substantial fall in the share price the shareholder requested that the directors call a general meeting of the company, which, by section 303 of the Companies Act 2006, they were required to do if they received requests from members representing at least 5% of the paid-up capital of the company. The directors refused to call the general meeting requested, contending that the shareholder’s shares were in fact not paid up. The shareholder served a notice pursuant to section 305 of the 2006 Act, by which a shareholder was entitled to call a meeting if the directors had wrongfully refused to do so. The company subsequently informed the shareholder that it had issued further shares to a Malaysian company reducing his shareholding to 1·17%. The shareholder commenced two actions, one by a petition for a declaration that the notice served by him under section 305 of the 2006 Act was valid and effective and a direction that the general meeting be held, and the other, by a Part 8 claim form for an order rectifying the company’s register of members to delete the additional share issue for want of authorisation.’

WLR Daily, 17th May 2016

Source: www.iclr.co.uk

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