Category: law reports

NA (Pakistan) v Secretary of State for the Home Department; KJ (Angola) v Secretary of State for the Home Department; WM (Afghanistan) v Secretary of State for the Home Department; MY (Kenya) v Secretary of State for the Home Department – WLR Daily

Posted July 13th, 2016 in appeals, children, deportation, families, human rights, immigration, law reports, public interest by sally

NA (Pakistan) v Secretary of State for the Home Department; KJ (Angola) v Secretary of State for the Home Department; WM (Afghanistan) v Secretary of State for the Home Department; MY (Kenya) v Secretary of State for the Home Department [2016] EWCA Civ 662

‘The claimant foreign nationals, NA, KJ, WM and MY, who had resided for significant periods of time in the United Kingdom, were convicted of offences to which they were sentenced to periods of imprisonment of 12 months or more. As a result, they fell within the definition of foreign criminals in section 32 of the UK Border Act 2007, in respect of whom the Secretary of State was liable to make a deportation order, subject to the exceptions in section 33, which included where deportation would breach the offender’s rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimants in each case made representations against their deportation in reliance on their rights to a private and family life under article 8 of the Convention. Paragraph 398 of the Immigration Rules, as they applied between July 2012 and 27 July 2014 (“the 2012 Rules”), provided that when assessing a claim that deportation would be contrary to an offender’s rights under article 8 of the Convention, the Secretary of State was required to consider whether the circumstances in paragraph 399 and 399A of the 2012 Rules existed, and that if they did not, it was only in exceptional circumstances that the public interest in deportation would be outweighed by other factors. The circumstances: (1) in paragraph 399 were that the claimant had a genuine and subsisting parental relationship with a child dependent on the claimant or a partner and it was not reasonable to expect the child to leave the United Kingdom or there were insurmountable obstacles to family life with the partner continuing outside the United Kingdom; and (2) in paragraph 399A were the long residence of the claimant in the United Kingdom and lack of family, social or cultural ties with the country to which he was to be removed. Pararaphs 399 and 399A applied to offenders sentenced to imprisonment for at least 12 months but less than four years (“medium offenders”) but not to those sentenced to periods of four years or more (“serious offenders”). ‘

WLR Daily, 16th June 2016

Source: www.iclr.co.uk

In re X (A Child) (Reporting Restrictions: Guidance) – WLR Daily

Posted July 13th, 2016 in children, families, family courts, internet, judgments, judiciary, law reports, media, reporting restrictions by sally

In re X (A Child) (Reporting Restrictions: Guidance) [2016] EWHC 1668 (Fam)

‘Those applying for reporting restriction orders in family proceedings need to comply meticulously with the obligation to adequately notify the media in accordance with the FPR Practice Direction 12I—Applications for Reporting Restriction Orders and associate Cafcass practice note (paras 10, 25–28).’

WLR Daily, 4th July 2016

Source: www.iclr.co.uk

Surrey and others v Barnet and Chase Farm Hospitals NHS Trust – WLR Daily

Posted July 13th, 2016 in appeals, costs, damages, fees, hospitals, law reports, legal aid, litigation friends, negligence, solicitors by sally

Surrey and others v Barnet and Chase Farm Hospitals NHS Trust [2016] EWHC 1598 (QB)

‘Three separate cases involving clinical negligence litigation against the defendant hospital had been proceeding for several years prior to 1 April 2013. Under new legislation coming into force on 1 April 2013, a claimant entering into a conditional fee agreement (“CFA”) from that date would be unable to recover success fees and after the event (“ATE”) insurance premiums from the defendant if successful in the litigation. In each case the claim had initially been advanced with the benefit of legal aid, but in the month prior to 1 April 2013 the claimant’s solicitors, with the agreement of the claimant’s litigation friend, arranged for the legal aid certificate to be discharged and for the claim henceforth to be funded by a CFA to preserve the ability to recover the success fee and ATE premiums. In none of the cases was the litigation friend informed that the consequence would be the loss of the recognised 10% uplift on general damages. In each case the defendant challenged the successful claimant’s bill of costs, in so far as it sought to recover the success fee and the ATE premium, contending that the litigation friend’s decision was based on materially unreasonable advice (by reason of the omission to mention the 10% uplift) and that, since the burden was on the receiving party to establish that a cost was reasonably incurred and it was unknown what decision would have been made had proper advice been given, the doubt as to whether the additional costs were reasonably and proportionately incurred should be resolved in favour of the paying party. The costs judge in each case upheld the defendant’s challenge to those items, holding that the changed funding arrangements were not reasonable. Each claimant appealed, contending that the reasonableness of the decision to change funding had to be objectively assessed, so that the quality of any antecedent advice given to the claimants’ litigation friends was irrelevant.’

WLR Daily, 1st July 2016

Source: www.iclr.co.uk

Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks (Societe Des Produits Nestle SA intervening) – WLR Daily

Posted July 13th, 2016 in appeals, costs, inventions, law reports, patents, public interest, third parties, trade marks by sally

Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks (Societe Des Produits Nestle SA intervening) [2016] EWHC 1609 (Ch)

‘Where a party intervenes in an appeal from a decision of a hearing officer acting on behalf of the Comptroller General of Patents, Designs and Trade Marks, ordinary a costs order will not be made in the intervener’s favour. The court will only consider departing from its ordinary position if it is satisfied that (1) the intervener’s position was successful, (2) its submission added value to the hearing, and (3) it had not duplicated the respondent’s submissions (paras 10, 12).’

WLR Daily, 7th July 2016

Source: www.iclr.co.uk

City West Housing Trust v Massey; Manchester and District Housing Association v Roberts – WLR Daily

Posted July 13th, 2016 in appeals, evidence, housing, landlord & tenant, law reports, repossession by sally

City West Housing Trust v Massey; Manchester and District Housing Association v Roberts [2016] EWCA Civ 704

‘When exercising the discretion to suspend a possession order where a tenant’s evidence was considered to be untrue in whole or part, the judge has to be persuaded by cogent evidence that there is a sound basis for the hope that the previous conduct will cease or not recur. Cogent evidence regarding future compliance does not need to stem solely from the tenant himself, without regard to how others might behave, rather the likelihood or possibility of action by others, or even the perception that others might take action, may in an appropriate case be evidence which supports an overall assessment that there is real hope of compliance in the future (post, paras 47–49).’

WLR Daily, 7th July 2016

Source: www.iclr.co.uk

Daniel and another v Tee and others – WLR Daily

Posted July 13th, 2016 in breach of trust, compensation, law reports, solicitors, trusts by sally

Daniel and another v Tee and others [2016] EWHC 1538 (Ch)

‘The defendants were professional solicitor trustees of a trust of which the claimants were the beneficiaries. The claimants sought compensation for breach of trust in connection with the investment of the trust funds in the period 2000 to 2002.’

WLR Daily, 1st July 2016

Source: www.iclr.co.uk

DB UK Bank Ltd (trading as DB Mortgages) v Jacobs Solicitors – WLR Daily

Posted July 13th, 2016 in banking, civil procedure rules, law reports, negligence, part 36 offers, solicitors, without prejudice communications by sally

DB UK Bank Ltd (trading as DB Mortgages) v Jacobs Solicitors [2016 [EWHC] 1614 (Ch)

‘The claimant bank brought a claim for professional negligence against the defendant firm of solicitors. The claimant’s solicitors sent a letter to the defendant’s solicitors stating that they were accepting the defendant’s offer to settle contained in a “ without prejudice save as to costs” letter (“WPSAC letter”) and enclosing a draft Tomlin order. A series of without prejudice letters and conversations followed. The defendant’s solicitors wrote reiterating the terms of their offer of settlement. Subsequently, the claimant’s solicitors sent a without prejudice letter containing a CPR Pt 36 offer. The parties differed as to the effect of the claimant’s Part 36 offer on the defendant’s WPSAC letter. The defendant contended that the claimant’s Part 36 offer was a counteroffer and, in law, had the effect of rejecting its WPSAC letter so that thereafter, it was not open for acceptance.’

WLR Daily, 4th July 2016

Source: www.iclr.co.uk

BAILII: Recent Decisions

Posted July 8th, 2016 in law reports by sally

Court of Appeal (Civil Division)

Court of Appeal (Criminal Division)

High Court (Administrative Court)

High Court (Chancery Division)

High Court (Commercial Court)

High Court (Family Division)

High Court (Queen’s Bench Division)

High Court (Technology and Construction Court)

Source: www.bailii.org

BAILII: Recent Decisions

Posted July 6th, 2016 in law reports by Mark L

Court of Appeal (Civil Division)

ELS Group Ltd, R (on the application of) v HM Revenue and Customs [2016] EWCA Civ 663 (05 July 2016)

Tiuta International Ltd v De Villiers Surveyors Ltd [2016] EWCA Civ 661 (01 July 2016)

Court of Appeal (Criminal Division)

Rogers, R v [2016] EWCA Crim 801 (01 July 2016)

High Court (Administrative Court)

Binaura, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 1578 (Admin) (05 July 2016)

Regional Court In Poznan (Poland) v Czubala [2016] EWHC 1653 (Admin) (05 July 2016)

Davies v Health And Care Professions Council [2016] EWHC 1593 (Admin) (05 July 2016)

OM, R (On the Application Of) v Secretary of State for the Home Office [2016] EWHC 1588 (Admin) (01 July 2016)

Kearsey v Nursing And Midwifery Council [2016] EWHC 1603 (Admin) (01 July 2016)

High Court (Chancery Division)

Aqua Global Solutions Ltd v Fiserv (Europe) Ltd [2016] EWHC 1627 (Ch) (05 July 2016)

Daniel & Ors v Tee & Ors [2016] EWHC 1538 (Ch) (01 July 2016)

Purrunsing v A’Court & Co (a firm) & Anor [2016] EWHC 1528 (Ch) (01 July 2016)

High Court (Commercial Court)

Connect Shipping Inc & Anor v Sveriges Anfgartygs Assurans Forening (The Swedish Club) & Ors [2016] EWHC 1580 (Comm) (01 July 2016)

High Court (Queen’s Bench Division)

Montpelier Business Reorganisation Ltd v AJP One LLP & Ors [2016] EWHC 977 (QB) (05 July 2016)

Marsden v Barclays Bank Plc [2016] EWHC 1601 (QB) (05 July 2016)

F And S vTH [2016] EWHC 1605 (QB) (01 July 2016)

Community Pharmacies (UK) Ltd, R (On the Application Of) v The National Health Service Litigation Authority [2016] EWHC 1595 (QB) (01 July 2016)

The Software Incubator Ltd v Computer Associates UK Ltd [2016] EWHC 1587 (QB) (01 July 2016)

Surrey v Barnet and Chase Farm Hospitals NHS Trust [2016] EWHC 1598 (QB) (01 July 2016)

High Court (Technology and Construction Court)

Goldsworthy & Ors (t/a Goldsworthy Builders) v Harrison & Anor [2016] EWHC 1589 (TCC) (01 July 2016)

Perenco UK Ltd & Anor v Bond [2016] EWHC 1498 (TCC) (29 June 2016)

Source: www.bailii.org

A Local Authority v D and others [2016] EWHC 1438 (Fam) – WLR Daily

Posted July 4th, 2016 in children, family courts, human rights, jurisdiction, law reports, local government, supervision orders, time limits, travellers by michael

A Local Authority v D and others [2016] EWHC 1438 (Fam)

‘The applicant local authority applied, pursuant to paragraph 6(3) of Schedule 3 to the Children Act 1989, for a six-month extension of a supervision order made in its favour under section 31 of the 1989 Act in respect of three children from the travelling community. The application was dated the day that the original order expired but was not issued until the following day.’

WLR Daily, 1st July 2016

Source: www.iclr.co.uk

Regina v Anwar (Umar) and others [2016] EWCA Crim 551 – WLR Daily

Posted July 4th, 2016 in appeals, attempts, closed circuit television, conspiracy, evidence, firearms, homicide, joint enterprise, law reports, murder, robbery, telecommunications by michael

Regina v Anwar (Umar) and others [2016] EWCA Crim 551

‘The victim was telephoned and offered a supply of cannabis, as a result of which he drove to the appointed place where he got into a silver car, joining the three occupants, to complete the purchase. The front passenger pointed a shotgun at his face while the driver brandished a knife. As the victim attempted to escape two men exited a white van nearby and attempted to take his car. The man with the shotgun fired two shots but the victim escaped. Six defendants stood trial on charges of attempted murder, conspiracy to commit robbery and possession of a firearm with intent to commit robbery. The Crown argued that this was a well-planned criminal enterprise as shown on the CCTV footage and by the frequent mobile phone calls between the defendants which showed that all the robbers had the necessary knowledge that a firearm was to be carried with the intention that it should be used during the course of the robbery with the required, if conditional, intention to kill. The trial judge ruled that, although there was a case for all defendants to answer in respect of the count of conspiracy to rob, there was no case in relation to attempted murder and possession of a firearm with intent because there was no evidence to establish a prima facie case as to (a) any particular defendant being in the silver car; (b) any particular defendant holding the shotgun either in the silver car or when the shots were fired; or (c) crucially, any particular defendant being aware, by the time of travelling to the scene, that the shotgun was loaded, or that he was intending that it should be used if necessary specifically to kill. The Crown appealed against the judge’s ruling, pursuant to the provisions of section 58 of the Criminal Justice Act 2003.’

WLR Daily, 1st July 2016

Source: www.iclr.co.uk

Regina v Walker (Triston) [2016] EWCA Crim 751 – WLR Daily

Posted July 4th, 2016 in appeals, codes of practice, consent, criminal procedure, Crown Prosecution Service, law reports, murder by michael

Regina v Walker (Triston) [2016] EWCA Crim 751

‘The defendant was charged with murder. On 4 August 2007 the crown prosecutor made a decision to charge his co-accused with assisting an offender. That decision was taken employing the threshold test in the Code for Crown Prosecutors issued by the Director of Public Prosecutions (“DPP”) under section 37A of the Police and Criminal Evidence Act 1984 and considering the statutory charging procedures set out in section 37B, namely that when a case was referred by police to the DPP, the DPP should decide whether there was sufficient evidence to charge, decide which offence to charge and notify the police of his decision. The co-accused was charged by police on 21 August and the next day he was sent for trial. On 10 October a crown prosecutor gave written consent to the institution of proceedings against the co-accused. At trial the co-accused gave evidence which was broadly supportive of the defendant’s account but which contradicted that account in some respects. The defendant was convicted of murder. He sought leave to appeal against conviction, contending that the proceedings against the co-accused were a nullity, since the DPP had not given his consent until after he had been sent for trial; that, therefore, the co-accused should not have been on the same indictment as the defendant; that the co-accused’s contradictory evidence had done collateral damage to the defendant’s case; and that the conviction was therefore unsafe.’

WLR Daily, 1st July 2016

Source: www.iclr.co.uk

Goluchowski v District Court in Elblag, Poland ; Sas v Circuit Court in Zielona Gora, Poland and another [2016] UKSC 36 – WLR Daily

Posted July 4th, 2016 in appeals, EC law, enforcement, extradition, law reports, Poland, suspended sentences, warrants by michael

Goluchowski v District Court in Elblag, Poland; Sas v Circuit Court in Zielona Gora, Poland and another [2016] UKSC 36

‘In each case the requested person, a Polish national was convicted of serious offences in Poland and sentenced to a term of imprisonment. In the first case the sentence was suspended but later activated because the requested person failed to adhere to the terms of the suspension. In the second case the requested person, with regard to two relevant sentences, had been (i) on release pending an unsuccessful appeal and (ii) on conditional early release which had been revoked because of breaches of the applicable conditions. In each case the requested person was required to surrender himself to the Polish authorities to serve the outstanding sentence but failed to do so. Various summonses and arrest warrants were issued in Poland which failed to achieve the apprehension of the requested persons and, upon discovering that the requested persons were in England, European arrest warrants were issued and served on the appropriate authorities.’

WLR Daily, 30th June 2016

Source: www.iclr.co.uk

Criminal proceedings against Kossowski (Case C-486/14) – WLR Daily

Posted July 4th, 2016 in criminal procedure, EC law, freedom of movement, human rights, law reports, sentencing by michael

Criminal proceedings against Kossowski (Case C-486/14)

‘The accused fled from Germany to Poland after being accused of committing a criminal offence in Germany, and a criminal investigation was initiated against him in that state. The Polish authorities subsequently arrested the accused with a view to the enforcement of a term of imprisonment to which he had been sentenced in Poland in a different case. Subsequently, the Polish authorities opened an investigation procedure against the accused, accusing him of an offence based on his actions in Germany but decided eventually to terminate the criminal proceedings for lack of sufficient evidence. The Higher Regional Court, Hamburg, hearing an appeal brought by the Hamburg Public Prosecutor’s Office against that decision, took the view that under the German law, the evidence against the accused was sufficient to justify the opening of trial proceedings before the Regional Court, Hamburg, and the acceptance of the indictment for the purposes of those proceedings, unless that was barred by the principle of ne bis in idem (protection from multiple prosecutions in different member states) laid down in article 54 of the Convention Implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (1995) (OJ 2000 L239, p 19) (the “CISA”) and article 50 of the Charter of Fundamental Rights of the European Union. Accordingly, the Hamburg court referred to the Court of Justice of the European Union for a preliminary ruling a number of questions on the interpretation of those provisions.’

WLR Daily, 30th June 2016

Source: www.iclr.co.uk

Regina v Malhi – WLR Daily

Posted July 4th, 2016 in appeals, confiscation, conspiracy, human rights, law reports, proceeds of crime, sentencing by michael

Regina v Malhi

‘In 2006 the defendant pleaded guilty to a charge of conspiracy to obtain property by deception. He was sentenced to 12 months’ imprisonment. In confiscation proceedings his criminal benefit was assessed at over £800,000 but, as he had no available assets, a confiscation order was made in the nominal sum of £1. Subsequently, the defendant having bought a house, the prosecution applied under section 22 of the Proceeds of Crime Act 2002 for reconsideration of the available amount. In July 2015 the amount of the confiscation order was varied from £1 to £108,010, the value of the defendant’s equity in the house, with five years’ imprisonment to be served in default of payment. The defendant made a late application for permission to appeal against conviction and sentence. The application was dismissed except that it was adjourned as to two of the proposed grounds of appeal, namely (i) that the default sentence was excessive because, at the time of the offence, the maximum period of imprisonment in default of payment of a confiscation order in relation to a sum between £100,00 and £250,000 was three years and the judge had therefore been wrong to have regard to the increased maximum period provided for in section 10 of the Serious Crime Act 2015 which, by regulation 3(g) of the Serious Crime Act 2015 (Commencement No 1) Regulations 2015 came into force on 1 June 2015; (ii) that the term imposed was manifestly excessive.’

WLR Daily, 30th June 2016

Source: www.iclr.co.uk

In re D (A Child) (Recognition of Foreign Order) (Reunite Child Abduction Centre and another intervening) – WLR Daily

Posted July 4th, 2016 in appeals, child abduction, children, custody, EC law, jurisdiction, law reports, Supreme Court by michael

In re D (A Child) (Recognition of Foreign Order) (Reunite Child Abduction Centre and another intervening)

‘In litigation in Romania concerning the care and custody of a 10 year-old child born to Romanian parents who had lived most of his life with his mother in England, the Bucharest Court of Appeal awarded custody of the child to his father. The father obtained an order in the High Court for recognition and registration of that decision under article 21(2) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility. The mother appealed to a High Court judge pursuant to article 33 of the Regulation. The judge, allowing the appeal, refused recognition of the Romanian court order under article 23(b) on the ground that the order had been made without the child having been given an opportunity to be heard. The father, having unsuccessfully appealed to the Court of Appeal, obtained leave for a further appeal to the Supreme Court. Upon the mother challenging the father’s right to a further appeal, the Supreme Court convened a preliminary hearing to determine whether it had jurisdiction to proceed with the appeal.’

WLR Daily, 29th June 2015

Source: www.iclr.co.uk

Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin) – WLR Daily

Posted July 4th, 2016 in appeals, disciplinary procedures, education, employment, law reports, licensing, professional conduct, teachers, ultra vires by michael

Alsaifi v Secretary of State for Education [2016] EWHC 1519 (Admin)

‘In August 2013 the appellant was engaged on an hourly paid fixed term contract as a lecturer by a further education establishment. In November 2013 he was suspended from work, pending the outcome of an internal investigation, following a complaint of alleged inappropriate behaviour by the appellant towards a part-time 17-year-old learner in his class. The appellant resigned before the conclusion of the internal disciplinary hearing. In May 2015 allegations of unacceptable professional conduct in relation to the complaint were formally referred to the National College for Teaching and Leadership (“NCTL”) on behalf of the Secretary of State for Education. At that time there was no evidence that the appellant was teaching or engaged to teach anywhere. In February 2016 a professional conduct panel of the NCTL found the appellant guilty of unacceptable professional conduct and recommended that the Secretary of State impose an indefinite prohibition order. The NCTL later became aware that the appellant had worked as a school teacher from January to March 2016, ceasing a few days before he received the prohibition order. ‘

WLR Daily, 29th June 2016

Source: www.iclr.co.uk

BAILII: Recent Decisions

Posted July 1st, 2016 in law reports by sally

Court of Appeal (Civil Division)

M, R (on the application of) v Human Fertilisation and Embryology Authority [2016] EWCA Civ 611 (30 June 2016)

Court of Appeal (Criminal Division)

Attorney General’s Reference Under Section 36 of the Criminal Justice Act 1988 v Regina [2016] EWCA Crim 750 (30 June 2016)

High Court (Administrative Court)

The Professional Standards Authority for Health and Social Care v The General Dental Council & Anor [2016] EWHC 1539 (Admin) (30 June 2016)

High Court (Chancery Division)

Goldcrest Distribution Ltd v McCole & Ors [2016] EWHC 1571 (Ch) (30 June 2016)

McShee v MMC UK Pension Fund Trustees Ltd [2016] EWHC 1574 (Ch) (30 June 2016)

High Court (Commercial Court)

Novus Aviation Ltd v Alubaf Arab International Bank BSC(c) [2016] EWHC 1575 (Comm) (30 June 2016)

Marme Inversiones 2007 SL v Royal Bank of Scotland Plc & Ors [2016] EWHC 1570 (Comm) (29 June 2016)

High Court (Queen’s Bench Division)

Committeri v Club Mediterranee SA Generali Assurances Iard SA [2016] EWHC 1510 (QB) (30 June 2016)

Source: www.bailii.org

Regina (Cooper) v Ashford Borough Council – WLR daily

Posted June 30th, 2016 in environmental protection, law reports, local government, planning, travellers by sally

Regina (Cooper) v Ashford Borough Council: [2016] EWHC 1525 (Admin)

‘The claimant sought judicial review of the grant of planning permission by the local planning authority for four gipsy pitches and associated development at a site, on the ground, inter alia, that the local authority had erred in failing to have regard to a material consideration, namely that the grant of permission would set a precedent for the development of further gipsy and traveller sites causing cumulative harm to the semi-natural ancient woodland in the area.’

WLR Daily, 24th June 2016

Source: www.iclr.co.uk

BAILII: Recent Decisions

Posted June 30th, 2016 in law reports by sally

High Court (Commercial Court)

Marme Inversiones 2007 SL v Royal Bank of Scotland Plc & Ors [2016] EWHC 1570 (Comm) (29 June 2016)

High Court (Family Division)

M, Re [2016] EWHC 1572 (Fam) (30 June 2016)

Source: www.bailii.org