Claim for patent asserting priority from filing in Germany as to ‘Access of a mobile station to a random access channel in dependence of its user class’Court: PatC
Judges: Birss J
References:  EWHC 1034 (Pat),
Claim for patent asserting priority from filing in Germany as to ‘Access of a mobile station to a random access channel in dependence of its user class’Court: PatC
The Sheriff, having heard the applicant’s agent refuses warrant to serve the application.Court: ScSf
(Outer House – Court of Session)Court: SCS
IPEC An application under rule 10(2) of the Patent Rules 2007 was filed by Dr Peter Vincent Smallwood to mention Dr Peter Vincent Smallwood and Jonathan Hibbard as joint inventors. Robert Timothy Gros, the patent proprietor and Jonathan Hibbard were invited to file a counterstatement in relation to the proceedings. Robert Timothy Gros filed written consent in support of the application. No response was received from Jonathan Hibbard. As such, the comptroller considered the application to be unopposed and found that Dr Peter Vincent Smallwood and Jonathan Hibbard should be mentioned as joint inventors along with Robert Timothy Gros in the published patent application and granted patent for the invention and directed that an addendum slip mentioning Dr Peter Vincent Smallwood and Jonathan Hibbard as joint inventors be prepared for the published patent application and granted patent for the invention.Court: IPEC
EAT Contract of Employment -&- Unfair Dismissal
This appeal gave rise to potentially important points on the flexible working sections in Part 8A of ERA 1996 and on the commencement and effects of the Dispute Resolution Regulations. The employee informally sought flexible working in order to care for her grandchildren; this was refused. She then made a formal application under s.80 F of ERA which was also refused. She then resigned and claimed constructive dismissal. S.32 of EA came into effect a few days before the result of the appeal was notified; she did not go separately through the grievance procedure before presenting her claim for unfair dismissal and discrimination and under the flexible working procedures. The Tribunal found that the employer’s grounds of refusal (s.50 G of the ERA) were not made out, that the employee had been constructively dismissed. Her presentation of the formal application of F.W was on the fault also the making of a grievance. Appeal dismissed. We held, inter alia, (1) that the Tribunal were entitled to examine and decide upon the factual correctness of the asserted ground for refusing the flexible working request, although not its fairness and reasonableness and (2) that it was not, in law, necessary for the employee to go through two sets of procedures in order to comply with the requirements of s32 and Schedule 2 of Employment Act and that it was open to the Tribunal to find that her flexible working application was also the presentation of a grievance.
Where it appeared on the record, that an agreement sued on was made by the plaintiff, on behalf of himself and the other proprietors of a theatre, evidence of the declarations of one of such other proprietors was held admissible on the part of the defendant.Court: CCP
The manager of Covent Garden sought damages from an actor (a principal comedian) in the form of liquidated damages for breach of a contract. He had contracted to perform for four seasons, but had refused to continue after the first.
Held: Liquidated damages cannot be reserved on an agreement containing various stipuations, of various degrees of importance, unless the agreement specify the particular stipulation or stipulations to which the liquidated damages are to be confined.
Tindall CJ said: ‘We see nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree. In many cases, such an agreement fixes that which is almost impossible to be accurately ascertained; and in all cases, it saves the expense and difficulty of bringing witnesses to that point.’
If the terms had been limited to breaches which were of an uncertain nature and amount, it would have been good. But the provision extended to any term including the payment of small amounts of money, or other trivial non-money breaches: ‘But that a very large sum should become immediately payable, in consequence of the nonpayment of a very small sum, and that the former should not be considered as a penalty, appears to be a contradiction in terms; the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by breach of the agreement.’
Brandon LJ said: ‘Damages in tort are awarded by way of monetary compensation for the loss or losses a plaintiff has actually sustained.’Court: CA
The common law, in being formed from time to time by the wisdom of man it grew and increased from time to time with the wisdom of mankind.Date: 01-Jan-1800
Two partners, Strickland and Richardson, held property as joint tenants at law. Richardson committed an act of bankruptcy by absenting himself, and a commission was issued against him. The commissioners then declared Richardson bankrupt and executed a provisional assignment. Meanwhile Strickland, the solvent partner, had died. Richardson’s brother-in-law issued a second commission and Richardson was found a bankrupt under that commission. The petitioners under the first commission then petitioned that the second commission be superseded, ie. stayed. The Attorney General, seeking to uphold the second commission, argued that there having been no assignment before Strickland’s death the survivorship had taken place. He submitted that: ‘The date of the commission has no effect: but the relation to the act of bankruptcy is this: it avoids all acts to the prejudice of creditors; but has not the effect of preventing the bankrupt from acquiring property by survivorship.’ Counsel for the petitioners, arguing for a stay of the second commission, did not refer to the doctrine of relation back, submitting that the partnership was severed in Strickland’s lifetime by the issue of the commission: ‘The commission severs the partnership. When the commission issues, the property is out of the bankrupt and in the commissioners; and the assignees take from the commissioners.’
Held: Rejecting the argument of the petitioners, but it is not clear whether he accepted that of the Attorney General. ‘The issuing of the commission does nothing, unless he is found a bankrupt. The adjudication that he is a bankrupt is what severs the partnership. The first act is that declaring him a bankrupt, then all the property is out of him; and they make the assignment…I am satisfied that the first commission will do well enough. Let the first commission stand.’
The House upheld the decision of the Lord Chancellor of Ireland to grant the tenant relief from forfeiture. The landlord had cut timber on the land, and the tenant sought damages. The tenant came into Chancery to restrain the landlord’s proceeding for non-payment of rent, and insisted that damages demandable in this collateral way ought to be applied to discharge the rent. There had been an award ascertaining the damage; but it had been made after the time limited for making the award and therefore the matter still rested in damages. At a time when the ejectment was brought, this was the demand which the tenant had against the landlord, an unascertained, unliquidated demand arising from the act of the landlord, affecting the land in the occupation of the tenant. The tenant gave a consent to judgment admitting the rent demanded to be due; but he insisted that he was entitled to a certain sum for damages for cutting the timber. On the answer there was an injunction until the hearing, on the terms of lodging the rent in court, which terms were not complied with: The habere was executed in 1797; the cause was heard in 1798, and an issue directed to try whether the tenant had sustained any and what damage from cutting the timber. The jury found damage in the amount of £ 103 6s. A supplemental bill was then filed praying that the tenant might be restored to possession, and the value accounted for in the usual way. The answer insisted on the statute Geo. I stating that the ejectment was brought for non-payment of rent. The cause came on again in 1799, when the plaintiff was declared entitled to restitution, on paying what was due for rent after deducting the damages. That was a case in which the court proceeded, not on a question whether so much was due for rent or not; but there being a collateral demand on the person to whom the rent was to be paid, and the amount of that demand appearing to have been nearly equal to the rent, but the subject of the cross-action, and which could not by any possibility be set-off by way of defence in the ejectment whether this afforded a distinct ground for equitable relief.Court: HL
Fort William (Bengal)Court: PC
Fort William (Bengal)Court: PC
Application for Rehearing – following findings on the death of Poppi Worthington – fresh inquest orderedCourt: FC
The court held a welfare hearing in an application for a care order. An earlier fact finding hearing had concluded that the child was at risk.Court: FC
IPO Evidence, Revocation – The defendants in this case objected to the admissibility of the claimant’s evidence-in-reply on the grounds that it was not strictly in reply, and could have been filed at an earlier stage in the proceedings. The Hearing Officer found the evidence to be admissible but allowed the defendant an opportunity to file additional submissions in response.Court: IPO
(Summary Decision – Transfer)Court: Nom
Appeal from a child arrangements orderCourt: CA
Final hearing of the local authority application for Care and Placement Orders. These applications are granted with no active opposition. The contest was as to the trial of allegations that the child suffered physical abuse and in particular the issue of the identification of the person responsible.Court: Admn
Laws LJ, with whom the other members of the court agreed, said that because s 39(2) creates a criminal offence ”the section is to be construed not necessarily restrictively but at least conservatively unless there is a pressing greater imperative.’ Though it may be desirable to continue the protection given to children, it was not open to the court to extend it. Laws LJ said: ‘it is worth recording the obvious: that we are not here to legislate but to construe section 39 of the 1933 Act.’Court: CA
The petitioners said that the responents had failed to comply with on order provide a proper answer to the petitioners Part 18 request for information. The respondents applied for relief from sanctions if necessary.Court: ChD
The administrator sought declarations as to whether to treat the bank as a secured or unsecured creditor.
Held: The court directed the Administrator to recognise the Bank as a secured creditor, as if the Deed of Release had never been executed.
The claimant alleged breach by the several defendants of EU and domestic competion law in relation to the MasterCard Defendants’ imposition of multilateral interchange fees (‘MIFs’) in the course of operating the MasterCard credit card system. Four of the defendants now sought the summary striking out of the claim as being without hope of success and out of time.Court: ChD
Appeal against order for extradition to Poland.Court: Admn
‘rolled-up’ hearing of the Claimant’s application for permission for judicial review against decisions made by the Defendant to suspend and then revoke its Tier 2 and Tier 4 sponsor licencesCourt: Admn
The court considered the proper approach to be adopted, in light of new Immigration Rules promulgated in July 2012, to applications for leave to enter the United Kingdom by persons who are family members of someone already present here.Court: CA
The court heard an appeal against orders made in public law proceedings after findings that the children of the family had been physically abused.Court: CA
The families disputed a claim under the 1975 Act. The defendants now sought summary dismissal of the claim.Court: FD
The court set out the principles applicable in deciding whether the Authority should be given authority to enter the premises of a company regulated by it.Court: ChD
When an appeal is lodged in a VAT dispute, the discretion as to whether to require the appellant to lodge security for costs in the appeal, was a decision exclusively to be decided by the tribunal itself. A decision as to such security could not be challenged within enforcement proceedings.Court: CA
Memorandum as to the removaal of Colonial JudgesCourt: HL
The taxpayers appealed a notice under section 703(3) to counteract the tax advantage received by them from a share buy-back scheme. The scheme was an approved pension scheme, under which the quoted company agreed to buy back its own shares.
Held: The excess paid over the market value by the company was to be treated as a qualifying distribution under section 231, creating a tax credit. Under Joiner section 703 was not primarily targeted at contrived transactions, but rather at all forms of tax avoidance within its scope. What had to be considered was the normality of the amount paid, but that was not judging a distribution as against a normal dividend, but a qualifying distribution of a different kind. The judge had asked himself the wrong question. Appeal allowed.
The claimants were to be awarded damages, having been fraudulently induced to purchase shares. The defendant claimed that the increase in the value of the shares which had subsequently occurred should be taken to reduce the damages awarded because the claimant had opted to retain the shares.
Held: The interests of justice did not allow ma defendant to reduce the level of damages awarded in this situation. The damages were for a breach of warranty. The compensatory principle required the damage to be assessed at the date of the loss. He had adopted the transaction by retaining the shares, but the measure was the excess of consideration paid over the true value together with consequential expenses. The expenses and harassment suffered by the claimant at the hands of the Respondent were substantial. It was the responsibility of the defendants to establish that the claimants had acted imprudently in retaining the shares. That had not happened.
The father appealed a finding of the Child Support tribunal against his assertion that he had day to day care of his child.
Held: The Regulations provided that where, as here, one party paid the school fees of a child attending a boarding school, that case had to be treated as a special case. The tribunal had erred in following too closely the award of residence to the mother. The Child Support scheme provided a self contained statutory system for making the decision. It had to decide what would be level of care provided against the actual background, if the child were not at boarding school.
Bracewell J considered the first of the conditions suggested by Lord Brandon in Barder for allowing an appeal against an order made by consent – that the circumstances giving rise to the appeal should be such as to undermine the order. He said that the first condition imports the requirement that the new event be not only unforeseen but unforeseeable, since if it was foreseeable at the time, it cannot be the kind of extraneous supervening event which can be said to destroy the basis of the original order.Date: 01-Jan-2002
In divorce proceedings, the husband had transferred his interest in the matrimonial home to the wife who had been awarded care and control of the two children of the family. The order was made on 20 February 1985 and on 25 March the wife unlawfully killed the two children and then committed suicide. The husband sought leave to appeal out of time, and to have the consent order set aside.
Held: The House considered the principles to be applied when looking at applications for leave to appeal out of time.
Lord Brandon: ‘My Lords, the question whether leave to appeal out of time should be given on the ground that assumptions or estimates made at the time of the hearing of a cause or matter have been invalidated or falsified by subsequent events is a difficult one. The reason why the question is difficult is that it involves conflict between two important legal principles and a decision which of them is to prevail over the other. The first principle is that it is in the public interest that there should be finality in litigation. The second principle is that justice requires cases to be decided, so far as practicable, on the true facts relating to them, and not on assumptions or estimates with regards to those facts which are conclusively shown by later events to have been erroneous.
In appeals from the High Court to the Court of Appeal, and from the Court of Appeal to your Lordships’ House, there is a discretion to admit evidence relating to supervening events where refusal to admit it would plainly cause serious injustice. This has been established by three cases in the field of actions for damages for death or personal injuries: Curwen -v- James  1 WLR 748; Murphy -v- Stone-Wallwork (Charlton Ltd  1 WLR 1023 and Mulholland -v- Mitchell  AC 666.’
Lord Brandon considered the circumstances in which an unexpected supervening event might lead to an ancillary relief order being set aside: ‘There can, in my opinion, be no doubt that the consent order dated 20 February 1985 was agreed between the husband and the wife through their respective solicitors, and approved by the registrar, upon a fundamental, though tacit, assumption. The assumption was that for an indefinite period, to be measured in years rather than months or weeks, the wife and the two children of the family would require a suitable home in which to reside. That assumption was totally invalidated by the deaths of the children and the wife within five weeks of the order being made.’ and ‘My Lords, the result of the two lines of authority to which I have referred appears to me to be this. A court may properly exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events, provided that certain conditions are satisfied. The first condition is that new events have occurred since the making of the order which invalidate the basis, or fundamental assumption, upon which the order was made, so that, if leave to appeal out of time were to be given, the appeal would be certain, or very likely, to succeed. The second condition is that the new events should have occurred within a relatively short time of the order having been made. While the length of time cannot be laid down precisely, I should regard it as extremely unlikely that it could be as much as a year, and that in most cases it will be no more than a few months. The third condition is that the application for leave to appeal out of time should be made reasonably promptly in the circumstances of the case. To these three conditions, which can be seen from the authorities as requiring to be satisfied, I would add a fourth, which it does not appear has needed to be considered so far, but which it may be necessary to consider in future cases. That fourth condition is that the grant of leave to appeal out of time should not prejudice third parties who have acquired, in good faith and for valuable consideration, interests in property which is the subject matter of the relevant order.’
Nova ScotiaCourt: PC
The court was asked whether the case should be transferred from the Patents County Court to the High Court Patents Court.Court: PCC
Dispute as to method of implementation of collective bargaining arrangements.Court: QBD
The claimants elleged defamation by the defendants in the course of disputes as to the management of mosques in South Wales.Court: QBD
Costs consequential on adjournment of hearing of PIP breast implant litigation.Court: QBD
The Claimant claims damages for pain, injury, loss and damage arising out of his medical treatment at the Medway Maritime HospitalCourt: QBD
Held: a final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
A final ancillary relief order that has been made by a District Judge by consent can in principle be reviewed by the court if there has been fraud, mistake or material non-disclosure.
Munby J said: ‘There is an extensive jurisprudence analysing the means by which such applications can be brought before the court . . Much of this jurisprudence is both complex and, particularly where what is sought is to challenge a consent order made by a district judge, confusing and confused. It is, I venture to suggest, yet another area where there is a pressing need for legislative clarification and simplification. As Bracewell J pointed out in Benson v Benson (Deceased)  1 FLR 692, at 606, Ward J (as he then was) had commented as long as 1989 in B-T v B-T (Divorce: Procedure)  2 FLR 1 that the various procedures were unsatisfactory and cumbersome, yet, as she dryly observed, ‘the difficulties persist’. That was in 1995. In 2002 in S v S (Ancillary Relief: Consent Order)  EWHC 223 (Fam),  Fam 1,  1 FLR 992, at para , the same judge observed that the law was in ‘a most unsatisfactory state’. It is now 2006 and little has been done, and nothing effective, to remedy matters.’
and . . ‘it suffices to say that where it is sought to challenge a consent order in ancillary relief proceedings it is, or may be, possible to do so by one or more of the following:
(i) a fresh action to set aside the consent order;
(ii) an appeal;
(iii) an application to the judge at first instance’.
Unfair Dismissal: Contributory Fault – Polkey deduction
Employment Rights Act 1996 sections 122(2) (basic award) and 123(1) and (6) (compensatory award)
Unfair Dismissal – Compensatory Award – Polkey reduction
EAT Practice and Procedure: Bias, Misconduct and Procedural Irregularity – There appears to have been a substantial irregularity in that the Employment Judge refused to allow a witness called by the Respondent to give evidence, although he could have given highly material evidence.
It is also fairly arguable that the Employment Judge made findings which were not supported by any evidence.
EAT Equal Pay Act: Material Factor Defence and Justification – SEX DISCRIMINATION – Direct – UNFAIR DISMISSAL – Constructive dismissal
The Employment Tribunal upheld the Respondent’s genuine material factor defence to the Appellant’s equal pay claim. No error of law shown. The sex discrimination claim failed on the facts and on limitation grounds. The Employment Tribunal found permissibly that the Respondent was not in repudiatory breach of contract so that the constructive unfair dismissal claim also failed. Accordingly, appeal dismissed.
EAT Practice and Procedure – An Employment Tribunal found in favour of the Claimant on one of the claims she made. It thought it just and equitable to extend time. On appeal the employer argued, successfully, that since there had been no evidence given by the Claimant to explain why she had been late in making a claim, and the reason was not obviously to be inferred, there was no proper basis for making the claim.Court: EAT
EAT Unfair Dismissal: Constructive Dismissal – The Employment Tribunal dismissed the Claimant’s claim that she had been constructively dismissed on the basis that her employer had breached the implied term of trust and confidence.
She appealed on the grounds that the Employment Tribunal had failed to make an objective assessment of the employer’s conduct but had considered their subjective intentions and beliefs. On analysis that submission was not well founded and the appeal was simply an attack on a factual finding of the Employment Tribunal that there had been no repudiatory breach by the employer.