Statutes: European Convention on Human Rights
References: 23692/09 - Chamber Judgment,  ECHR 243
FTTTx VAT – franchise of educational teaching method- rewards paid to franchisee instructors – whether contingent discount reducing VAT on franchise fee – whether payment for separate supply – HELD – reward enhancement of basic supply – artificial to separate from services supplied under franchise agreement – reward is contingent discount – appeal allowed.Court: FTTTx
Judges: Rachel Short TJ
References:  UKFTT 84 (TC),
FTTTx PAYE – Employer’s year-end return – penalties for late submission – whether submitted on time – no – whether penalties due – yes – whether penalties can be discharged on grounds of unfairness – no – whether finding that HMRC’s failure to send prompt reminders unfair – no – whether reasonable excuse for late submission – no – penalties confirmed-Court: FTTTx
References:  UKFTT 153 (TC),
FTTTx Paye – late lodging of employer’s annual return – agents believed return had been successfully filed – reminder and penalty notices issued – problems with third-party software – return still not filed – whether reasonable excuse – no – appeal dismissedCourt: FTTTx
References:  UKFTT 137 (TC),
FTTTx VAT – Zero rating- whether camper vans converted from VW T5 motor vans supplied to disabled customers by appellant were adapted ‘permanently and substantially’ to enable a disabled person who usually used a wheel chair ‘to enter and drive or otherwise be carried in’ the vehicle for the purposes of Note 5L to Item 2A Schedule 8 Group 12 VATA 1994 – combination of adaptations consisting of ambulance ramp fitting strip and swivel seats fulfilled criteria – appeal allowedCourt: FTTTx
References:  UKFTT 110 (TC),
FTTTx CUSTOMS DUTY – anti-dumping duty – import from Turkey of colour TVs of Korean origin – whether entry in the accounts precluded by Article 220(2)(b) of the Community Customs Code – whether failure to enter amount of duty legally due a result of an error by the customs authorities – whether error could not have been reasonably detected by appellant – whether duty should be remitted under Article 239 – whether there was a ‘special situation’ – whether gross negligenceCourt: FTTTx
References:  UKFTT 60 (TC),
References:  UKAITUR IA348402009,
References:  UKAITUR IA287672009,
References:  UKAITUR IA238872009,
References:  UKAITUR DA008512009,
References:  UKAITUR AA085272009,
Inquiry Under The Fatal Accidents and Inquiries (Scotland) Act 1976 Into The Sudden Death of Mildred Rosenshine; SCSf 30-Jul-2010
References:  ScotSC 129,
Inquiry Under The Fatal Accident and Inquiries (Scotland) Act 1976 Into The Sudden Death of Kristoffer Batt; SCSf 30-Jul-2010
References:  ScotSC 128,
East Lothian Council for A Permanence Order Under Section 80 of The Adoption and Children (Scotland) Act 2007 In Respect of The Child LSK; SCSf 30-Jul-2010
References:  ScotSC 130,
References:  ScotSC 127,
Judges: Mitting J Ch, Gleeson SIJ, Taylor
References:  UKSIAC 56/2009,
The defendants appealed against confiscation orders each for more than £92 million said to have been derived from a substantial fraud.
Held: The appeals succeeded. Sums which had been paid into banks as the result of a purported sale of goods by a buffer company in the course of a carousel fraud generating false claims for the repayment of VAT were not property obtained ‘in connection with [the] commission’ of the offence within section 71(4) of the 1988 Act.
Judges: Hoper LJ, Sir Christopher Holland
Statutes: Criminal Justice Act 1988 7 71(4)
Links: Bailii, WLRD,
References:  EWCA Crim 391,  2 All ER 1137,  STI 546,  2 Cr App R (S) 85,  STC 1239,  WLR(D) 62,  1 WLR 2335,  Crim LR 468,  Lloyd's Rep FC 413
Claim by a 32 year old man against his mother for damages for personal injury. He claims that during his childhood his mother:-
i) assaulted him;
ii) was responsible jointly with his father for assaults upon him by his father;
iii) negligently failed to protect him from his father.
As a result he suffered physical injury and long term psychiatric damage. In addition to general and special damages he seeks aggravated damages.
Judges: Thirlwall DBE J
References:  EWHC 1983 (QB),  PIQR P1
Challenge to the grant of planning permission by Gravesham Borough Council, the Defendant, on an application by Edinburgh House Estates Ltd, the Interested Party, for a major mixed use development in the centre of Gravesend.Court: Admn
Judges: Ouseley J
References:  EWHC 504 (Admin),
The solicitor claimant appealed against a finding of misconduct leading to his being struck from the Roll of Solicitors.
Held: The assessment and judgment by the tribunal was impregnable and the undoubted history of ill health cannot weigh with me or impact upon the tribunal’s ultimate finding and conclusion with regard to dishonesty. Holman J said: ‘I have a considerable element of sympathy for Mr Bains. It seems highly unlikely that he would have found himself in this position but for the untimely death of his partner and the pressures that were placed upon him by certain clients whom he thought were honourable and good for the money when, in truth, they were not. But for the reasons I have given, I am not able to conclude that there is any respect in which the decision of the tribunal was wrong or reached unfairly, and this appeal must be dismissed.’
Judges: Holman J
References:  EWHC 506 (Admin),
Ullah, Regina (on The Application of) -v- The Secretary of State for The Home Department; Admn 22-Jan-2015
The claimant in this judicial review claim challenged the Secretary of State’s decision to refuse his application for leave to remain in the United Kingdom as a Tier 4 (General) Student.Court: Admn
Judges: Taylor HHJ
References:  EWHC 337 (Admin),
Appeal against convictions for possession of drugs and of a prohibited weapon. He said that a juror had carried out internet research on him during the trial.Court: CACD
Judges: Moore-Bick LJ, McCombe J, Gilbert QC HHJ
References:  EWCA Crim 2352,  1 Cr App Rep 28
Employment and support allowance – WCA activity 18: getting aboutCourt: UTAA
References:  UKUT 266 (AAC),
Appeal against refusal of stay of patent application – case proceeding in Sweden.Court: CA
Judges: Jacob, Patten LJJ
References:  EWCA Civ 988,
The test of provocation in a murder allegation, is not whether the occurrence is sufficient to deprive the particular individual in question of his self-control, having regard to his nature and idiosyncrasies, but whether it would suffice to deprive a reasonable man in his situation of self-control.Date: 01-Jan-1914
References: (1914) 11 Cr App R 11,  3 KB 1116
Judges: Wyn Williams J
Statutes: Justice and Security Act 2013 8
References:  EWHC 469 (Admin),
- Fawwaz -v- Secretary of State for The Home Department (2), Admn, See Also, (Bailii,  EWHC 468 (Admin))
- Fawwaz -v- Secretary of State for The Home Department (3), Admn, See Also, (Bailii,  EWHC 166 (Admin))
Ben Hoare Bell Solicitors and Others, Regina (on The Application of) -v- The Lord Chancellor; Admn 3-Mar-2015
The claimants challenged the legality of an amendment to the legal aid scheme made by the Civil Legal Aid (Remuneration) (Amendment)(No 3) Regulations 2014 SI 2014 No 607. The question is the legality of the introduction by the Remuneration Amendment Regulations of what can broadly be described as a ‘no permission, no fee’ arrangement for making a legally aided application for judicial review. There is also no entitlement to payment where permission has neither been granted nor refused, for example where the claim has been settled or withdrawn, but in such cases the amendment gives the Lord Chancellor power to pay the costs of making the application where he considers that it is reasonable to do so.
Held: In relation to incompatibility with statutory purpose, the scope of regulation 5A extends beyond the circumstances which can be seen as rationally connected to the stated purpose given for its introduction. To that extent it is inconsistent with the purposes of the scheme in LASPO, and this application succeeds.
Judges: Beatson LJ, Ouseley J
Statutes: Civil Legal Aid (Remuneration) (Amendment)(No 3) Regulations 2014
References:  EWHC 523 (Admin),
The claimant challenged new conditions imposed on licences to operate his fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: There was an appropriate need for some regulation, but the evidence suggested the the Agency had given no effective consideration to the effect of the new terms on the claimant’s livelihood, and ‘even if the Agency could properly have imposed the total catch limit that it did, the size of that limit and the way in which it was apportioned would still have meant that the claimant has been required to shoulder an excessive and disproportionate burden, such that a breach of A1P1 could only be prevented by payment of compensation.’
Judges: Cooke HHJ
Statutes: European Convention on Human Rights AP1
References:  EWHC 314 (Admin),
The defendant appealed against a confiscation order. He had used a company to defraud suppliers on the continent of substantial sums. He said that his involvement in the conspiracy was only toward the later end and that he had received no benefit in fact.
Held: The court may often be entitled to make robust inferences if convicted defendants remain unhelpful as to which of them obtained what benefit as defined by the Act. The section is not to be construed so that a person may be held to have obtained property or derived a pecuniary advantage when a proper view of the evidence demonstrates that he has not in fact done so. The proper finding of fact on the evidence was that the appellant had obtained nothing from his participation in this conspiracy. The order was quashed.
May LJ said od section 71A: ‘The section is not to be construed so that a person may be held to have obtained property or derived a pecuniary advantage when a proper view of the evidence demonstrates that he has not in fact done so.’
Judges: Lord Justice May Mr Justice Roderick Evans And His Honour Judge Jeremy Roberts Q.C.
Statutes: Criminal Justice Act 1988 71
References:  EWCA Crim 2940, Times, 07-Nov-2003,  2 Cr App R (S) 70
- Regina -v- McKechnie, CACD, Cited, ( EWCA Crim 3161)
- Clifford R Norris, Re; In the Matter of an Application By Teresa W Norris, CA, Cited, (Gazette 10-Feb-00, Times 25-Feb-00, Bailii,  EWCA Civ 14,  1 WLR 1094)
- Regina -v- Patel, CACD, Cited, ( 2 Cr App R(S) 10)
- Abbas Kassimali Gokal -v- Serious Fraud Office, CA, Cited, (Bailii,  EWCA Civ 368)
Application by a local authority for permission to withdraw care proceedings pursuant to FPR 1991 4.5; it is supported by the parents and by W (a party in his own right). The guardian advocates that no order should be made in this case but is less confident in (but does not seek to oppose) withdrawal as the proper route to that end. The alternative approach is the conduct of the listed fact finding hearing leading to no order under Section 1(5) of the Children Act 1989 (the Act).Court: FD
Judges: Hedley J
Statutes: Family Proceedings Rules 1991 4.5, Children Act 1989 1(5)
References:  EWHC 1914 (Fam),  1 FLR 188,  Fam Law 1267
Refusal of accession to Letters rogatory.Court: Admn
Judges: Burnett LJ, Wyn Williams J
References:  EWHC 166 (Admin),
- Fawwaz -v- Secretary of State for The Home Department (2), Admn, See Also, (Bailii,  EWHC 468 (Admin))
- Fawwaz -v- Secretary of State for The Home Department (1), Admn, See Also, (Bailii,  EWHC 469 (Admin))
INCOME TAX/CORPORATION TAX – Sub-contractors in the construction industryCourt: FTTTx
Judges: Mr. Geraint Jones Q.C. (Judge), Mr. Harvey Adams (Member)
References:  UKFTT 414 (TC),
The applicant had obtained what it thought to be clearance from the Revenue for a complex scheme, whose effectiveness depended on whether investors would qualify for capital allowances. The Inspector initially gave a favourable assurance, but that was subsequently withdrawn.
Held: The taxpayer’s application failed. A tax clearance certificate was properly withdrawn for a failure by the taxpayer to make a full disclosure.
Lord Jauncey refered to Lord Templemen’s dicta in the Preston case and said: ‘I take from these passages (i) that the court may properly review a decision of the Revenue to exercise it’s statutory powers if the decision is so unfair as to amount to an abuse of power although the court has a discretion to refuse relief even if such decision does not savour of such abuse…’
Lord Browne-Wilkinson: ‘It is now established that, in certain circumstances, it is an abuse of power for the Revenue to seek to extract tax contrary to an advance clearance given by the Revenue. In such circumstances, the taxpayers can by way of judicial review apply for an order preventing the Revenue from seeking to enforce the tax legislation in a sense contrary to the assurance given (see Preston -v- IRC  AC 835). But the courts can only restrain the Revenue from carrying out their duties to enforce taxation obligations imposed by legislation where the assurances given by the Revenue make it unfair to contend for a different tax consequence, as a result of which unfairness the exercise of their statutory powers by the Revenue would constitute an abuse of power (see  AC 835 at 864 per Lord Templeman). It is further established that if the taxpayer, in seeking advance clearance, has not made a full disclosure of the relevant circumstances, the Revenue are not acting unfairly, and therefore are not abusing their powers, if they go back on an advance clearance which they have only given in ignorance of the relevant circumstances (see  AC 835 at 867 per Lord Templeman, and R -v- IRC, ex p MFK Underwriting Agencies Ltd  1 WLR 1545′.
Lord Griffiths: ‘In this case the local tax Inspector made a bad mistake. He gave clearance to a scheme proposed by Matrix Securities which Lord Templeman has exposed as a manifestly impermissible tax avoidance scheme. Although the letter of 15 July 1993 in which Matrix put the scheme to the Inspector was not expressed as clearly as it might have been, I have no doubt that if the Inspector had read it carefully he would have realised either that it was a tax avoidance scheme or at the very least it should be considered by the special list division of the Inland Revenue before clear answer was given. In either case he should not have given his clearance.
. . . I wish however to add a word of a more general nature to the issue that has arisen in the appeal. It is part of the human condition that people will make mistakes, but they must not be held to mistaken decisions if the mistake is discovered in time to take effective remedial action. In the present case the specialist unit discovered the mistake made by their tax Inspector and gave immediate notice to Matrix that they could not approve the scheme before any money had been invested by the public in the scheme. In these circumstances even if the Inspector had been the right person to submit the secheme to in the first instance, and even if the scheme had been clearly set out it would be wholly wrong to hold the Revenue to the mistaken clearance and allow the scheme to go ahead at a cost of some 38 million pounds of lost Revenue to the national exchequer. It is one thing to hold the Revenue to a clearance that has been acted upon in good faith, but quite another to permit the correction of an error before it has been acted upon.
If however Matrix had been entitled to rely on the clearance given by the Inspector and had spent money in promoting the scheme before the clearance was withdrawn, then it seems to me that fairness demands that Matrix should be reimbursed for this out of pocket expense and it could be regarded as an abuse of power for the Revenue to refuse to do so. This point does not have to be decided in this appeal but I mention it because this aspect of the argument only surfaced towards the end of the hearing and the Revenue strenuously resisted any liability to compensate Matrix in such circumstances.’
Judges: Lord Browne-Wilkinson, Lord Jauncey, Lord Griffiths
Links: Ind Summary,
References:  1 WLR 334,  STC 272
- Regina -v- Inland Revenue Commissioners, Ex Parte Matrix Securities Ltd, CA, Appeal from, (Gazette 26-Jan-94, Times 10-Nov-93)
- Regina -v- Inland Revenue Commission ex parte Preston; In re Preston, HL, Cited, ( AC 835, Bailii,  UKHL 5,  BTC 208,  3 WLR 945,  2 All ER 327)
The defendant appealed conviction for the murder of his infant son. Evidence said that he had lost his temper with a fire in the home as it would not light, and had damaged it with a hammer or by kicking it; evidence that he had lost his temper with a shower, smashing the shower head and cracking the bath; that he had thrown a remote control at the television and that he had hit the wing of his car with a hammer. The defendant appealed its admission.
Held: Tuckey LJ: ‘Persuasively though these submissions are put, we do not accept them. We do not doubt the Pettman principle as elaborated in the commentary to which we have referred, but we think it is important to bear in mind the Law Commission’s warning that the label ‘background evidence’ may be a vehicle for smuggling in otherwise inadmissible evidence for less than adequate reasons. Relevance and necessity are the touchstones of the principle. The fact that a man who is not shown to have any tendency to lose his temper and react violently towards human beings becomes frustrated with the violent towards inanimate object is, we think, irrelevant. Those of us who are ham-fisted or over ambitious DIY enthusiasts would be horrified to learn that frustration in this difficult field of endeavour could be used against us. By the same token it was not necessary for the jury to know about this. It was prejudicial and could only have diverted their attention from the very serious issue which they had to try. Nor could it be said that the case was incomplete or incomprehensible without the admission of this evidence. So we conclude that the judge should not have admitted it at the time he did.’
Judges: Tuckey LJ
References:  EWCA Crim 1859,
The taxpayer claimed to deduct the legal costs of contesting an assessment to tax. The dispute was about the computation of the taxpayer’s profits. It assumed that those profits were ascertainable, one way or another, at the time when the dispute arose. The costs of the dispute could not therefore have been an element in the computation. They were logically as well as temporally subsequent to the profits having been earned.Court: HL
References:  AC 508,
Smith (Inspector of Taxes) -v- Woodhouse and Others; Fitzpatrick and Others -v- Commissioners of Inland Revenue; HL 18-Feb-1994
An allowance paid to a journalist by his employer to pay for newspapers he was to buy and read as part of his work was taxable under Sch E. It was not actually part of his job to read them.Court: HL
Statutes: Income and Corporation Taxes Act 1970 189(1)
Links: Times, Independent,
Sentence for possession of false passport.Court: CACD
References:  2Cr App R (S) 57,
- Regina -v- Kolawole, CACD, Cited, (Times 16-Nov-04,  2 Cr App R (S) 71)
An ability was required on the part of the witness to understand questions and give answers to them that were understandable, in short, intelligibility.Court: CACD
Statutes: Youth Justice and Criminal Evidence Act 1999 53
References:  2 Cr App R 36,
Mrs Lloyd delivered the title deeds of her cottages at Ellesmere Port to the solicitors’ fraudulent managing clerk.
Held: Vicarious liability can extend to fraudulent acts or omissions if those were carried out in the course of the employment or within the scope of the apparent authority, albeit by an employee or a partner conducting the business of a type which he had a right to conduct. The principal was liable for the fraud of the agent because conveyancing is part of the ordinary business of solicitors. The client had been invited by the firm to deal with their managing clerk. It was irrelevant that the agent acted with a dishonest purpose for his own ends. His act was of the class or kind of acts which fall within the ordinary business of solicitors.
Judges: Lord Macnaghten, Earl Loreburn LC
References:  AC 716,  UKHL 1
- McGowan & Co -v- Dyer, , Cited, ((1873) LR 8 QB 141)
- Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) -v- Export Credits Guarantee Department, HL, Cited, (Gazette 10-Mar-99, Times 19-Feb-99, House of Lords, Bailii,  UKHL 9,  1 AC 486,  1 All ER 929,  2 WLR 540)
- Generale Bank Nederland Nv (Formerly Credit Lyonnais Bank Nederland Nv) -v- Export Credits Guarantee Department, HL, Cited, (Gazette 10-Mar-99, Times 19-Feb-99, House of Lords, Bailii,  UKHL 9,  1 AC 486,  1 All ER 929,  2 WLR 540)
- J J Coughlan Ltd -v- Ruparelia and others, CA, Cited, (Bailii,  EWCA Civ 1057, Times 26-Aug-03, Gazette 02-Oct-03,  Lloyd's Rep PN 25)
- Dubai Aluminium Company Limited -v- Salaam and Others, HL, Cited, (House of Lords, Times 06-Dec-02, Bailii,  1 Lloyd's Rep 65,  UKHL 48,  3 WLR 1913,  2 AC 366,  1 All ER 97,  2 All ER (Comm) 451,  1 LLR 65,  1 BCLC 32,  IRLR 608,  1 CLC 1020,  WTLR 163)
- Frans Maas (Uk) Ltd -v- Samsung Electronics (Uk) Ltd, ComC, Cited, (Bailii,  EWHC 1502 (Comm),  2 Lloyds Rep 251)
- Morris -v- C W Martin & Sons Ltd, CA, Cited, ( 1 QB 716,  3 WLR 276,  2 Lloyds Rep 63,  2 All ER 725)
- Lister and Others -v- Hesley Hall Ltd, HL, Cited, (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords,  UKHL 22,  1 AC 215,  2 All ER 769,  2 FCR 97, (2001) 3 LGLR 49,  NPC 89,  Fam Law 595,  2 WLR 1311,  IRLR 472,  ICR 665,  Emp LR 819,  2 FLR 307,  ELR 422)
- Gravil -v- Carroll and Another, CA, Cited, (Bailii,  EWCA Civ 689, Times 22-Jul-08,  ICR 1222,  IRLR 829)
- Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church, CA, Cited, (Bailii,  EWCA Civ 256, Times,  PTSR 1618,  1 WLR 1441)
The respondent sought deletion of a penal notice attached to a court order. The notice was not brought to the notice of the judge, but attached to the copy served.
Held: The words of rule 7(4) suggested that the penal notice might be attached to the copy to be served. It was properly included in a ‘copy of the order’ as served and should not be deleted.
Judges: Park J
References: Times, 08-Nov-2002, Gazette, 21-Nov-2002
- Anglo-Eastern Trust Ltd and Another -v- Kermanshahchi, CA, See Also, (Bailii,  EWCA Civ 198)
When a judge passes a sentence of imprisonment on a defendant already serving time, and wants this sentence to follow the other, he should make it quite clear the sentence is consecutive to the current sentence, and follow the practice direction.Court: CACD
Statutes: Criminal Justice Act 1991 51(2)
Links: Gazette, Times, Gazette,
- Practice Direction (Sentence), , Cited, ( 1 WLR 4)
The defendant appealed against a finding that he should forfeit a boat (the Vertine) used in a failed attempt to import a large quantity cigarettes whilst evading customs duty.
Held: ‘So far as the second limb is concerned — that is in relation to the £55,000 being the purchase value of the motor vessel — this was hardly pursued by Mr Newbury [counsel for the Crown]. It appears clear to us that, quite apart from the issue whether it could be a benefit to the appellant ‘as a result of or in connection with’ the offence that a boat was purchased in his name to use in the offence, the fact is that any such benefit which might otherwise have been arguable under the Act was not obtained by him, and certainly at the date of the confiscation order he had no such benefit, because of the boat itself being forfeited. In those circumstances the entirety of the sum which formed the basis of the certified sum, which led on to the sum by way of realisable assets which formed the basis of the confiscation order, falls away.’
Judges: Mance LJ, Newman and Burton JJ
References: Unreported, 16 June 2000, 2000/00449/X4
(Essex Summer Assizes 1862) A conversation between the prisoner and his mother, in which she made a statement to his prejudice, which he denied : held, not admissible in evidence against himDate: 01-Jan-1862
References:  EngR 187 (A), (1862) 3 F & F 276
Where Parliament has continued to use words of which the meaning has been settled by decisions of the court, it is to be presumed that it intends the words to continue to have that meaning.Court: HL
Judges: Lord Reid
References:  AC 337,
- Gallagher (Valuation Officer) -v- Church of Jesus Christ of Latter-Day Saints, HL, Cited, (Bailii,  UKHL 56, Times 07-Aug-08,  1 WLR 1852, HL,  4 All ER 640,  NPC 92,  HRLR 46,  RA 317,  2 P & CR DG25)
The judge directed the jury as to provocation saying that in order to reduce the crime to manslaughter, there should have been serious provocation, ‘something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act’.Date: 01-Jan-1869
Judges: Keating J
References:  11 Cox CC 336,
- Her Majesty's Attorney General for Jersey -v- Holley, PC, Cited, (Bailii,  UKPC 23, Times 21-Jun-05, PC, PC,  3 WLR 29)
- Regina -v- Smith (Morgan James), HL, Cited, (Times 04-Aug-00, House of Lords, Gazette 28-Sep-00, House of Lords, Bailii,  UKHL 49,  1 AC 146,  1 Cr App R 31,  4 All ER 289,  3 WLR 654)
- Rex -v- Lesbini, , Cited, ((1914) 11 Cr App R 11,  3 KB 1116)
‘But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in the case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact; in other words, that injuria sine damno is not actionable. On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law that, wherever there is a wrong, there is a remedy to redress it; that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages.”Date: 01-Jan-1838
Judges: Story J
References: (1838) 3 Sumner Rep 189,
- Ashby -v- White, KB, Cited, ( 92 ER 126, 1 Smith's Leading Cases (13th ed ) 253)
- Embrey -v- Owen, , Cited, ((1851) 6 Ex 353)
A court will, by analogy, apply a statutory limitation period if the remedy in equity, specific performance, is ‘correspondent to the remedy at law’ and where ‘the suit in equity corresponds with an action at law’. Lord Westbury said: ‘For where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point of time by the statute of limitations a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation . . But if any proceedings in Equity be included within the words of the statute, there a Court of Equity, like a Court of Law, acts in obedience to the statute.’Court: HL
Judges: Lord Westbury
References: (1872) LR 5 HL 656,
- DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH -v- Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) -v- Same (No 3), CA, Cited, (Bailii,  EWCA Civ 1048, Times 09-Sep-03,  1 BCLC 131)
- P & O Nedlloyd Bv -v- Arab Metals Co and others, CA, Cited, (Bailii,  EWCA Civ 1717, Times 15-Jan-07,  2 Lloyd's Rep 231,  2 All ER (Comm) 401)
A bank which did not warn its customer of the of risks of a loan and of the need for independent advice was bound by misrepresentations made by customer. The House referred to ‘the broad principle in the field of contract law of fair dealing in good faith.’Court: HL
Judges: Lord Clyde
Links: Times, House of Lords, Bailii,
References:  2 FLR 862, 1997 SC (HL) 111,  UKHL 26
- Mumford -v- Bank of Scotland; Smith -v- Same, OHCS, Appeal from, (Times 04-Aug-94)
- Regina -v- Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others, HL, Cited, ( 2 AC 1, House of Lords,  UKHL 55, Bailii, Times 10-Dec-04,  2 WLR 1,  1 All ER 527,  Imm AR 100, 18 BHRC 1,  IRLR 115,  UKHRR 530,  INLR 182,  HRLR 4)
- Royal Bank of Scotland -v- Etridge (No 2); Barclays Bank plc -v- Harris; Midland Bank plc -v- Wallace, etc, HL, Cited, (House of Lords, Times 17-Oct-01, Bailii,  UKHL 44,  3 WLR 1021,  2 AC 773,  HLR 4,  1 Lloyd's Rep 343,  NPC 147,  Fam Law 880,  43 EGCS 184,  2 All ER (Comm) 1061,  4 All ER 449,  2 FLR 1364,  1 P & CR DG14,  3 FCR 481)
The phrase ‘common terms of employment’ means broadly comparable terms. There is no need for them to be identical, and the phrase should be construed liberally, though there can be no general commonality where there is no commonality in terms and conditions between comparative establishments.
Lord Slynn said that the terms had to be sufficiently similar to allow a fair comparison to be made: ‘generally’ does not necessarily mean ‘all’.
A genuine material factor defence, between different collective bargaining pay structures for claimant and comparator work groups, can become discriminatory: ‘Whilst accepting that differences in rates of pay historically were due to separate bargaining processes, which themselves were untainted by sex, the question remained whether at the relevant date (January 1986) the difference between workers had been shown by the Corporation to be objectively justified on grounds other than sex.’
Judges: Lord Slynn
Statutes: Equal Pay Act 1970 1(6), Employment Protection Act 1970 1(2)(c)
Links: Times, Gazette, Gazette,
References:  ICR 515,
- Leverton -v- Clwyd County Council, HL, Cited, ( ICR 33,  IRLR 28)
The House was asked whether a failure by a lessor to keep strictly to the timetable laid down in a rent review clause in a lease necessarily deprived the lessor of the benefit of the rent review.
Held: A stipulation as to time in an option clause will normally be of the essence. The grantor needs to know with certainty the moment when his power of disposition of his property has come to an end.
As to break clauses: ‘there is a practical business reason for treating time as of the essence of such a clause, which is similar to that applicable to an option to acquire property. The exercise of this option by the tenant will have the effect of depriving the landlord of his existing source of income from his property and the evident purpose of the stipulation as to notice is to leave him free thereafter to enter into a contract with a new tenant for a tenancy commencing at the date of the surrender provided for in the break clause.’
As to when time can be made of the essence for the performance of a contract: ‘In equity, and now in the fused system, performance had or has, in the absence of time being made of the essence, to be within a reasonable time. What is reasonable time is a question of fact to be determined in the light of all the circumstances. After the lapse of a reasonable time for performance the promisee could and can give notice fixing a time for performance. This must itself be reasonable, notwithstanding that ex hypothesi a reasonable time for performance has already elapsed in the view of the promisee. The notice operates as evidence that the promisee considers that a reasonable time for performance has elapsed by the date of the notice and as evidence of the date by which the promisee now considers it reasonable for the contractual obligation to be performed. The promisor is put on notice of these matters. It is only in this sense that time is made of the essence of a contract in which it was previously non-essential. The promisee is really saying, ‘Unless you perform by such-and-such a date, I shall treat your failure as a repudiation of the contract.’ The court may still find that the notice stipulating a date for performance was given prematurely, and/or that the date fixed for performance was unreasonably soon in all the circumstances. The fact that the parties have been in negotiation will be a weighty factor in the court’s determination. ‘
Lord Diplock: ‘The mediaeval concept of rent as a service rendered by the tenant to the landlord has been displaced by the modern concept of a payment which a tenant is bound by his contract to pay to the landlord for the use of his land.’ and as to the operation of a rent review clause: ‘Until the market rent has been ascertained the landlords can only recover rent at the rate of £117,340 per annum . . It is only when the market rent has been determined and turns out to be higher than £117,340 that the landowner can recover on the rent day following such determination the balance that has been accruing since April 8 1975.’
Lord Simon of Glaisdale said: ‘In my view, rent today means the contractual money payment made by a tenant to his landlord in consideration for the use of the latter’s land.’
Lord Salmon said: ‘[A rent review clause] is for the benefit of the tenant because without such a clause he would never get the long lease which he requires; and under modern conditions, it would be grossly unfair that he should. It is for the benefit of the landlord because it ensures that for the duration of the lease he will receive a fair rent instead of a rent far below the market value of the property which he demises. Accordingly the landlord and the tenant by agreement in their lease provide that at stated intervals during the term, the rent should be brought up to what is then the fair market rent. The revision clause itself lays down the administrative procedure or machinery by which the fair market rent shall be ascertained.’
Judges: Lord Diplock, Lord Fraser, Lord Simon of Glaisdale
References:  AC 904,
- Finch -v- Underwood, CA, Cited, ((1876) 2 Ch D 310)
- United Dominions Trust (Commercial) Ltd -v- Eagle Aircraft Services Ltd Ltd; United Dominions Trust (Commercial) Ltd -v- Eagle Aviation Ltd, CA, Cited, ( 1 All ER 194,  1 WLR 74)
- Dun & Bradstreet Software Services (England) Ltd; Dun & Bradstreet Software Services Ltd -v- Provident Mutual Life Assurance Association and General Accident Linked Life Assurance, CA, Cited, (Bailii,  EWCA Civ 1816)
- Haugland Tankers As -v- RMK Marine Gemi Yapim Sanayii Ve Deniz Tasimaciligi Isletmesi As, ComC, Cited, (Bailii,  EWHC 321 (Comm))
- Hemingway Realty Ltd -v- Clothworkers' Company, ChD, Cited, (Bailii,  EWHC 299 (Ch), Times 15-Mar-05)
- Diab -v- Regent Insurance Company Ltd, PC, Cited, (Bailii,  UKPC 29)
- South Tottenham Land Securities Ltd -v- R & A Millett (Shops) Ltd, CA, Applied, ( 1 WLR 710)
- Scottish & Newcastle Plc -v- Raguz, CA, Cited, (Bailii,  EWCA Civ 150, Gazette,  2 All ER 871)
- Raineri -v- Miles, HL, Cited, ( AC 1050,  2 All ER 145)
- Gary White, Ellen White -v- Riverside Housing Association Ltd, CA, Cited, (Bailii,  EWCA Civ 1385)
- Riverside Housing Association Ltd -v- White and Another, HL, Cited, (Times 07-May-07, Bailii,  UKHL 20,  18 EG 152,  29 EG 144,  L & TR 22,  NPC 46,  HLR 31,  2 EGLR 69,  1 P & CR 13,  4 All ER 97)
- Hussain -v- Mehlman, CC, Cited, (Bailii,  2 EGLR 287,  32 EG 59,  EW Misc 1)
- Simmers -v- Innes, HL, Cited, (Bailii,  UKHL 24, 2008 GWD 13-235, 2008 SC (HL) 137, 2008 SCLR 533, 2008 SLT 407, HL)
- Scottish & Newcastle Plc -v- Raguz, ChD, Cited, (Bailii,  EWHC 821 (Ch),  4 All ER 524)
- Scottish & Newcastle Plc -v- Raguz, HL, Cited, (Bailii,  UKHL 65, HL, Times,  1 WLR 2494)
- Mason -v- Boscawen, ChD, Cited, (Bailii,  EWHC 3100 (Ch),  NPC 5,  BVC 75,  2 EG 80 (CS),  BTC 5075,  STI 185,  STC 624,  1 All ER 1006)
- Reichman and Another -v- Beveridge, CA, Cited, (Bailii,  EWCA Civ 1659, Times,  Bus LR 41)
In order to reduce Killing of a person to the crime of manslaughter, there must not only be sufficient provocation, but the jury must be satisfied that the fatal blow was given in consequence of that provocation If A. had formed a deliberate design to kill B, and, after this, they meet and have a quarrel, and many blows pass, and A kill B , this will be murder, if the jury are of opinion that the death was in consequence of previous malice, and not of the sudden provocation.
There is an external element to an assessment of the reasonableness of a man’s actions. Coleridge J said: ‘though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions’. A man cannot pray in aid his own violent disposition to bolster a defence of provocation.
Judges: Coleridge J
References:  8 Car & P 115,  EngR 273, (1839) 8 Car & P 115, (1839) 173 ER 422
The plaintiffs had applied for a product licence for a patented drug. To support its application, it supplied the authority with confidential information which the authority now sought to make use of the confidential information when considering later applications for licences for similar products.
Held: The authority had a duty of public safety, and to ensure fair treatment of all applicants. That duty required it to make use of such information where required. EU law did not prevent such use since the regulations allowed the restrictions on such use to be overridden by national law.
Judges: Lord Bridge of Harwich, Lord Templeman, Lord Ackner, Lord Oliver of Aylmerton and Lord Lowry
Statutes: Council Directive (65/65/E.E.C.) 4.8, Medicines Act 1968 (c. 67), 6 7(2) 20(1)(b), Medicines (Medicines Act 1968 Amendment) Regulations 1977 (S.I. 1977 No. 1050) 4(3)
References:  1 WLR 1,
- Allen & Hanburys Ltd -v- Generics (U K ) Ltd, , Cited, ( 2 All ER 454,  RPC 203)
- British Leyland Motor Corporation Ltd -v- Armstrong Patents Co Ltd, HL, Cited, ( AC 577,  2 WLR 400,  1 All ER 850, Bailii,  UKHL 7)
- Butler -v- Board of Trade, ChD, Cited, ( 3 All ER 593,  3 WLR 822,  Ch 680)
- Castrol Australia Pty Ltd -v- EmTech Associates Pty Ltd, , Cited, ( 51 FLR 184)
- Coca-Cola Co, In re, HL, Cited, ( 2 All ER 274,  1 WLR 695)
- Interlego AG -v- Tyco Industries Inc, PC, Cited, ( RPC 343,  3 All ER 949 PC,  3 WLR 678, Bailii,  1 BLR 271,  2 FTLR 133,  AC 217, Bailii,  UKPC 2)
- Keene, In re, CA, Cited, ( 2 Ch 475)
- Metropolitan Asylum District Managers -v- Hill, HL, Cited, ((1881) 6 App Cas 193 HL, (1882) 47 LT 29)
- Smith New Court Securities Ltd -v- Scrimgeour Vickers, HL, Cited, (Gazette 13-Dec-96, Times 22-Nov-96, House of Lords, Bailii,  UKHL 3,  AC 254,  4 All ER 769,  3 WLR 1051)
Local Authority is under no obligation to provide permanent housing for a family with children save as provided under the Act. The Children Act not to be used as a way around homelessness decisions and rules. A Social Services request to house children did not revive any claim made on behalf of the family as a whole. A child without accommodation is a child in need.Court: HL
Judges: Lord Templeman
Statutes: Housing Act 1985 Part III, Children Act 1989 22 27
Links: Gazette, Independent, Times,
- Regina -v- Northavon District Council, ex parte Smith, CA, Appeal from, (Independent 18-Aug-93, Times 04-Aug-93)
- Regina -v- Northavon District Council, ex parte Smith, CA, Appealed to, (Independent 18-Aug-93, Times 04-Aug-93)
- Regina -v- London Borough of Barnet ex parte G; Regina -v- London Borough of Lambeth ex parte W; Regina -v- London Borough of Lambeth ex parte A, HL, Cited, (House of Lords,  3 WLR 1194, Times 24-Oct-03, Bailii,  UKHL 57,  2 AC 208)
ECJ Judgment – Community trade mark – Applications for figurative Community trade marks representing boards for parlour games – Absolute grounds for refusal – Lack of distinctive character – Regulation (EC) No 207/2009, Article 7(1)(b) and Article 7(3)Court: ECFI
Judges: H. Kanninen, P
References: T-492/13,  EUECJ T-492/13
The defendant, accused of murder appealed against refusal of bail, denying the existence of a prima facie case against him.
Held: Jie Lien was not authority for the proposition that a warrant can be suspended in the course of a bail appeal. That was a statutory procedure: ‘ It is, as it says, an appeal against the refusal of bail. It is not a competent procedure by which to challenge a committal warrant. This appeal, on that ground, is refused.’
Judges: Lord Clark LJC
Statutes: Criminal Procedure (Scotland) Act 1995 37
References:  ScotHC HCJAC_46, 2013 SCL 484, 2013 GWD 13-278
- Jie Lin & Sheng Lu & Qing Guang He & Xin Chen -v- Her Majesty's Advocate, HCJ, Cited, (Bailii,  ScotHC HCJAC_151, 2014 SLT 173, 2014 SCCR 109, 2013 GWD 40-762, 2014 SCL 120)
Wilberforce J. said: ‘The basis of the action, as shown in Spalding v Gamage (1915), 32 RPC 273, is a proprietary right, not so much in the name itself, but in the goodwill established through use of the name in connection with the plaintiff’s goods. I draw, of course, from Lord Parker of Waddington’s well-known opinion in that case. The plaintiff must show that the name has become distinctive of his goods, and that a reputation has attached to them under the name in question, and that use by the defendant of the name is likely to cause confusion resulting in damage to the goodwill of the plaintiff.’Date: 01-Jan-1962
Judges: Wilberforce J
References:  RPC 163,
- Spalding (A G ) and Brothers -v- A W Gamage Ltd, HL, Applied, (84 LJ Ch 449, (1915) 32 RPC 273)
The defendants, scrap metal merchants, appealed against convictions for attemption to deal in stolen metals. The court was asked as to the mental element required for criminal attempt under section 1 of the 1981. The context here was an accusation of concealing, disguising or converting criminal property contrary to s.327(l) of the 2002 Act, under which it was necessary to establish that certain elements were suspicious.
Held: The appeals against conviction were allowed. Section 327(1) required the defendant to have known that the property was criminal property. Mere suspicion of that fact was insufficient.
Judges: Davis LJ, Blake, Lewis JJ
Statutes: Criminal Attempts Act 1981 1, Proceeds of Crime Act 2002 327(1)
Links: Bailii, WLRD,
References:  EWCA Crim 186,  WLR(D) 81,  1 Cr App R 34,  Lloyd's Rep FC 319, (2014) 178 JP 133,  1 WLR 286
FTTTx BEER DUTY – whether allowed method for calculating alcoholic strength of beer requires repayment of duty where actual strength is lower than declared strength – no – whether failure of regulations to make provision for calculation of duty on that basis unfair and an abuse of power – no – appeal dismissedCourt: FTTTx
References:  UKFTT 573 (TC),
FTTTx PAYE – late submission of Employer’s Annual Return – whether scale of penalty is reasonable , and whether penalty should be waived – Decision of Upper Tribunal in Hok Ltd applies. Whether marriage breakdown, financial hardship and possible computer software failure constitute a reasonable excuse for late submission of return – No.Court: FTTTx
References:  UKFTT 667 (TC),
A Mr Romasov was killed by a fellow employee (Mr McCulloch) in a Sainsbury’s supermarket; this fellow employee had, two days earlier, told Mr Romasov that he did not like immigrants and that he should go back to his own country. There was an argument when the co-employee objected to Mr Romasov sharing his table and a further argument in the toilets. Later the co-employee picked up a kitchen knife from the kitchenware section of the supermarket and stabbed Mr Romasov in one of the aisles.
Held: Lord Carloway referred to his previous judgment in Wilson v Exel saying: ‘the decision in Wilson (supra) is not to be interpreted so narrowly as to be applicable only to conduct in the nature of ‘pranks. The use of the expression ‘frolic’ in that case. . is, as already noted, not indicative of triviality with respect to the wrongful acts in question. The principles set out in that case may be taken to be of general application in cases of intentional wrongdoing. Whilst the pursuers have sought to distance themselves from the ‘random attack’ by characterising the deceased’s murder as part of a course of conduct amounting to harassment, there is no basis for departing from the court’s analysis of the law in Wilson (supra). Referring as a whole to Mr McCulloch’s conduct from 13 to 15 April, being the period over which the harassment is alleged to have occurred, does not remedy the fact that there is no connection between the harassment and what McCulloch was employed to do. Rather, McCulloch’s employment simply provided him with the opportunity to carry out his own personal campaign of harassment with tragic consequences.’
Judges: Lord Carloway, Lord Brodie, Lord McGhie
References:  ScotCS CSIH_67,  CSIH 67, 2013 SC 178, 2013 GWD 25-512, 2013 Rep LR 106, 2013 SLT 1032,  RA 67,  IRLR 792, 2012 GWD 30-624, 2014 SC 147
- Wilson -v- Exel UK Ltd, SCS, Cited, (Bailii,  ScotCS CSIH_35,  CSIH 35, 2010 Rep LR 68, 2010 GWD 18-365, 2010 SLT 671, 2010 SCLR 486)
References:  UKAITUR IA012952013,
References:  UKAITUR IA003492012),
References:  UKAITUR DA001262012),
Inquiry Under The Fatal Accidents and Inquiries (Scotland) Act 1976 Into The Sudden Death of Christina Fraser; SCSf 22-Jun-2010
References:  ScotSC 111,
References:  UKIntelP o03505,
The Secretary of State appealed to the Tribunal from a determination allowing on asylum grounds and human rights grounds the appeal by the Respondent against the Secretary of State’s decision to refuse asylum to the Claimant and to refuse him leave to enter the United Kingdom and to propose to give directions for the removal of the Claimant to Pakistan.Court: IAT
Judges: Freeman VP
References:  UKIAT 00033,
The customer challenged a series of pawn agreements. The broker appealed the finding that the contracts were invalid, on the basis that the judgment had created an unjust enrichment.
Held: The appeal failed: ‘in pawn transactions the debtor is particularly at risk because there is nothing to stop the pawnbroker selling the security in order to realise the amounts owed without resort to the courts, leaving it to the debtor to go to court if anybody is going to do so. The other is that the unenforceability of these contracts derives in large part from far from technical breaches. They include Mr Howard’s entry into the agreements under a name in which he was not licensed to trade and the omission in other contracts of the identity of the lender.
In this situation, given the provisions of section 106, it seems to me that the judge was justified in adopting the claimant’s account of the parties’ mutual indebtedness, and that in all probability he was obliged to do so. The moral for a pawnbroker such as Mr Howard is that if he wants the rewards of his trade he must operate strictly by the book, and that the result of failing to do so may be not merely to unravel agreements, but to reverse the indebtedness that they have purportedly created.’
Judges: Potter, Sedley LJJ
Statutes: Consumer Credit Act 1974 106
References:  EWCA Civ 147,
IAT (a) The fact that paragraphs 5.48 to 5.57 of the CIPU report sets out extracts of a report from SWOR (Swiss Organisation for Refugees) does not mean that this information is reliable. Paragraph 1.2 of the CPU Report makes it clear that the CIPU report is a collation of extracts of reports. We do not have any information about SWOR other than that it is an NGO. We do not know what methodology SWOR has used to gather its information, or the reliability of the sources of its information.
(b) Whilst it may well be that various bodies (the police, the gendarmerie, the army, etc.) within the Turkish government have their own information systems or registers and it may even be that such information systems/registers may contain information about persons who have been detained but not formally arrested, we are of the view that the last two sentences of paragraph 5.57 of the CIPU Report dated April 2004 should be treated with great caution. If taken literally, these two sentences would mean that every single individual who has ever been detained in the past (for however short a period of time and for whatever reason) would be listed on an information system. Information systems which include all such persons would be rendered of little use, given (from what we know about Turkey) that the numbers of such individuals would be very large indeed – unless, of course, the body which operates the information system/register makes entries of an adverse nature against the names of those individuals who are of continuing adverse interest to distinguish them from the generality. Accordingly, even if other information systems / registers exist, the guidance set out in the ACDOG case would have to be used in order to determine whether it would be reasonably likely that an individual would be subjected to treatment amounting to persecution or in breach of Article 3 on account of any information about the individual on any such systems or registers if the individual were to come into contact with the body which operates the systems or register. In other words, the ACDOG guidance would determine whether an individual is at real risk of such ill-treatment in his home area or the area where his detentions took place.
(c) Even if (applying the guidance in ACDOG) it would be reasonably likely that an individual would be at real risk of persecution or treatment in breach of Article 3 in his home area or the area in which his detentions took place, he would only be at real risk of such treatment on arrival at Istanbul airport if it is shown:
(i) that the other information system/register on which the individual is adversely recorded is available to the immigration or security officials at Istanbul airport; and
(ii) that there is some way of linking the other information system/register with the GBTS.
(d) SWOR does not say that other information systems/registers are available to the security officials at Istanbul airport. It suggests the existence of multiple information systems/registers in Turkey but makes no mention of any initiative by the Turkish authorities to put in place a single computer system to replace records held by police departments in Turkey (see (e), (f) and (g) below).
(e) The Zaman On-Line article dated 1st February 2004 (page 245 of the Appellant’s Bundle B) refers to a single computer system which will replace all records kept by the police and gendarmerie. This article gives the name of the system as ‘Information Collection System’. This article states that, under the single on-line system, all records of police and gendarmerie in the provinces will be abolished and the new on-line system will be used. The document entitled ‘Project for Police Information Systems’ dated April 2002 on the final page of the Appellant’s Bundle B also makes reference to a police computer network but it gives a different name – the name given in this article is ‘Police Computer Network and Information System’. Both documents must be referring to one and the same computer system – since both articles refer to one system to cover the police departments. If this is the case, then the Zaman On-Line article makes it clear that only criminal records would be collected into the single system. The inference therefore is that mere detentions would not be collected into the single on-line system.
(f) It is also clear from the Zaman On-Line article that not all police departments are already covered by the single on-line computer system. This article specifically refers to the Ankara Police Department having already destroyed all of its records. Accordingly, anyone who was previously detained by the Ankara police and who did not have any criminal record will not be named on the single on-line system, even if that system is available to security officials at Istanbul airport. The fact that records of the Ankara Police Department have been destroyed means that anyone with a history of detentions in Ankara would not now experience problems in Ankara, unless they can show that the individual officers would remember him and would continue to have an adverse interest in him.
(g) Furthermore, the Zaman On-line article states that the previous record keeping system sometimes led to violations in human rights and freedoms. Bearing this in mind, we regard the initiative to eventually abolish all records held by the police and gendarmerie and to collate criminal records into one on-line system as a positive development. Furthermore, if only those with criminal records will be named on the single system (as this Zaman On-line article states) and records in local police stations will be or have been destroyed, then the inference from this article is that fewer people will their human rights abused even in their former home areas.
(h) Mr. McDowall . . specifically states that ‘we are all guessing’. Accordingly, he is speculating in commenting on the evidence placed before the Tribunal in the No. 38 O case. On the same page, he states that ‘the central question here is whether the filter as applied by the GBTS as described [in his report] is in itself sufficient to serve Turkey’s security needs’. He opines that it is not. He proceeds to move from this opinion to the assumption that the Turkish authorities must therefore be using a better system which does serve its security needs. There is no basis for that assumption, which is based on speculation. The evidence we have is that, whether adequate or not, it is the GBTS which is used at Istanbul airport.
(i) At page 8 of his report (page 240 of the Appellant’s Bundle B), Mr. McDowall states that ‘Where the person detained is alleged to have been politically active or is otherwise perceived as an opponent of the State, it is practice for their detentions to be recorded on the GBT. The records can be accessed by the police’. Footnote 13 indicates that the source for this is Hayri Zafer Korkmaz, who is described as an ex-para legal of Baker & Co. Who is Mr. Korkmaz? What expertise does he have in this area? What does he base his information on? How reliable is his information? These questions are not dealt with in Mr. McDowall’s report. Furthermore, the contention that it is the practice for detentions to be recorded contradicts Mr. McDowall’s previous report of November 2002 (see paragraph 5.42 of the CIPU Report) in which he stated that a large proportion of detentions at police stations appear to go unrecorded in a formal sense.
(j) We do not accept that Mr. McDowall’s report of 19th March 2004 should be accepted by the Tribunal, even though his opinions are based, in part, on speculation and, in part, on information from parties about whom we are given very little information. It may be that the Tribunal has, to date, given too much credence to Mr. McDowall’s opinions. If he is the expert he is professed to be, then serious questions are raised as to why, as an expert, he had no prior knowledge of the information about the GBTS which was placed before the Tribunal in the No. 38 O case. The suggestion that it was only at that time that the evidence about the GBTS came forth does not address the issue we are raising here. Mr. McDowall has, for some time now, produced reports opining that the Turkish authorities hold records of detentions which would be available to the security officers at Istanbul airport because they would be on the GBTS. The argument he advances in the report of 19th March 2004 (that the practical application of the GBTS goes beyond official rules covering it) is not one which he has previously advanced – which is very surprising, if he is an ‘expert’ and given the length of time this particular debate has been going on for. We infer, from Mr. McDowall’s failure to mention previously such a distinction, that he was, quite simply, unaware of any such distinction until the No. 38 O case. It is also interesting to note that the information contained in the ‘Project for Police Information Systems’ document dated April 2002 and the information contained in the Zaman On-Line article dated 1st February 2004 (both of which pre-date the report of Mr. McDowall dated 19th March 2004) is not mentioned in his report. The time may now have come when the Tribunal may wish to reconsider what credence should be given to Mr. McDowall’s opinions.
(k) We do not agree that the No. 38 O case is not a country guidance case. It was clearly meant to provide guidance on the new evidence adduced to the Tribunal in that case about the GBTS system.’
Judges: Gill VP
References:  UKIAT 00177,
‘The Appellant appeals, with leave, against the determination of an Adjudicator, Mr D R Garratt, allowing the Respondent’s appeal against the decision of the Appellant on 13 August 2003 to issue removal directions and refuse asylum ‘Court: IAT
Judges: Mr S L Batiste (Vice-President), Mr J Perkins (Vice-President), Mr G H Getlevog
References:  UKIAT 00151,
The Appellants, citizens of China, appeal, with permission, against the determination of an Adjudicator, dismissing their appeals against the decision of the Respondent Secretary of State refusing them indefinite leave to remain in the United Kingdom.Court: IAT
Judges: Mr C M G Ockelton (Deputy President), Mr J Barnes (a Vice President), Mr L V Waumsley (a Vice President)
Statutes: Immigration Rules 34
References:  UKIAT 00083,
References:  UKAITUR AS504442003,
References:  UKAITUR AS511752003,
References:  UKAITUR CC211472003,
References:  UKAITUR CC285192003,
The court was asked as to how the basic hire element of the total charge incurred under a motor vehicle credit hire agreement is to be ascertained.Court: CA
Judges: Jackson, Kitchin, Floyd LJJJ
References:  EWCA Civ 93,
Lawson Builders Ltd and Others -v- Secretary of State for Communities and Local Government and Another; CA 25-Feb-2015
The appellants challenged the decision of a planning inspector, in which he dismissed the first appellant’s appeal from a decision of Wakefield Metropolitan District Council, the second respondent. Wakefield had granted the first appellant’s applications for certificates of lawful development in respect of properties in Pontefract, West Yorkshire, but only on the basis that the development was lawful in consequence of the grant of a planning permission.Court: CA
Judges: Pitcgford, Davis, Lewison LJJ
References:  EWCA Civ 122,
FTTTx Joint application by Appellant and Respondent under Section 28Z TMA 1970 – Capital Gains tax – Private residence relief – Sale of part of grounds for residential development -Construction work commenced before contractual disposal – Whether land fell to be regarded as part of grounds -Yes – Whether relief due – YesCourt: FTTTx
Statutes: Taxes Management Act 1970 28Z
References:  UKFTT 653 (TC),
Judges: Nicola Davies DBE J
References:  EWHC 2202 (QB),
The applicant, born male, had gender reassignment surgery at the age of 26. When she was approaching her 60th birthday she sought a state pension. This was refused on the grounds that she was, in law, male.
Held: The 2004 Act had not been in force when the claimant began her action. The Court spoke of it, saying: ‘the GRA 2004 has been adopted by parliament since the introduction of this application. It received Royal Assent on July 2004. Under the Act, individuals who satisfy certain criteria are able to apply to a gender recognition panel for a Gender Recognition Certificate. From the date of the grant of such a certificate, which is prospective in effect, an individual is afforded legal recognition in their acquired gender. In particular, social security benefits and the state retirement pension are paid according to the acquired gender.’ and ‘the present applicant’s victim status came to an end when the GRA 2004 came into force, thereby providing the applicant with the means on a domestic level to obtain the legal recognition previously denied’.
Judges: Casaavell P
Statutes: European Convention on Human Rights 8 14, Gender Recognition Act 2004
Links: Worldlii, Bailii,
References: 32570/03,  ECHR 548, (2007) 44 EHRR 1
The claimant sought to appeal against re-allocation of her claim from the multi-track to cmall claims track in order to recover her costs.Court: CA
Judges: Jackson, Kitchin, Lloyd LJJ
References:  EWCA Civ 92,
The court considered a request to order the defendants to pay a sum of money into court having defaulted in compliance with directions.
Held: The court does have the power under 3.1(5) to order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol. The defendants here had failed to comply with the overriding objective and other requirements.
Judges: Mackie QC HHJ
Statutes: Civil Procedure Rules 23.11
References:  EWHC 3341 (Comm),
The claimants in a defamation case made an interlocutory appeal against an order for trial by judge alone. The parties had agreed for trial by jury, but the defendants made a late application for trial by judge alone.
Held: The claimant’s appeal failed. The right to a trial by jury is a constitutional right subject to the conditions in section 69. Nevertheless there were advantages to trial by judge including the availability of a reasoned judgment and the reduction in cost. Taking account of the extent of documentation involved and other relevant factors, the conclusion that the matter fell within the conditions was inescapable.
Lord Neuberger MR spoke of the principles appliccable on hearing an application for jury trial iin a defamation case: There are, however, four factors which have been identified in the earlier cases, which have some general application and which are presently relevant, as the judge recognised:
(1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion (Goldsmith v Pressdram (supra) at page 68 per Lawton LJ with whom Slade LJ expressly agreed). This conclusion is based on section 69(3), which was a new section appearing for the first time in the 1981 Act to replace section 6(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the provision in force at the date when Rothermere v Times Newspapers was decided.
(2) An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest . .
(3) The fact that the case involves issues of credibility, and that a party’s honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury . .
(4) The advantage of a reasoned judgment is a factor properly to be taken into account . .’
Judges: Lord Neuberger of Abbotsbury MR, Maurice Kay VP, Sedley LJJ
Statutes: Senior Courts Act 1981 69(1)
Links: Bailii, WLRD,
References:  EWCA Civ 730,  WLR (D) 163,  1 WLR 2245
- Viscount de L'Isle -v- Times Newspapers Ltd, CA, Cited, ( 1 WLR 49, (1987) 3 All ER 499)
- Goldsmith -v- Pressdram Ltd, CA, Cited, ( 1 WLR 64)
- Fiddes -v- Channel 4 TV Corporation and Another, CA, See Also, (Bailii,  EWCA Civ 516)
- Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd, CA, Cited, (Times 21-May-97, Bailii,  EWCA Civ 1710,  EMLR 415)
- Beta Construction Ltd -v- Channel Four Television Co Ltd, CA, Cited, ( 1 WLR 1042,  2 All ER 1012)
An application was made for a new tenancy within the four month period prescribed by section 29(3) of the LTA. The applicants named in error in the application were ‘Signet Group plc’ and not ‘Ernest Jones Ltd’. Hammerson had not been misled and was in no reasonable doubt as to the identity of the person intending to sue. Application was made under RSC Ord 20 r 5(3) for leave to amend the name on the application. The four month period had by now expired.
Held: The amendment of the name of a party relates back to the start of the action even though it would be out of time otherwise if substituting a new party. It was proper to allow the amendment.
Statutes: Rules of the Supreme Court Order 20 rule 5(3), Landlord and Tenant Act 1954 29(3)
Links: Gazette, Times, Bailii,
References:  EWCA Civ 2939,
- Mitchell -v- Harris Engineering Co Ltd, CA, Cited, ( 2 QB 703)
EAT Jurisdiction – Whether the Tribunal had given sufficient reasons for their finding that the claimant had been disabled.Court: EAT
Judges: His Hon Judge Clark
Statutes: Disability Discrimination Act 1995
Links: Bailii, EAT,
References: EAT/1043/01,  UKEAT 1043_01_1510
A law may infringe article 1 if it creates an ‘imbalance’ between the parties which would result in one party being arbitrarily or unjustly deprived of his possessions for the benefit of the otherCourt: ECHR
Statutes: European Convention on Human Rights 1
References: (1983) 5 EHRR 249,
- Wilson -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2), HL, Cited, (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii,  UKHL 40,  3 WLR 568,  1 AC 816,  2 All ER (Comm) 491,  HRLR 33,  UKHRR 1085,  4 All ER 97)
The claimant had undertaken male to female treatment including surgery and lived as a woman, though continuing to live with her wife. She sought payment of a pension at 60, but was refused. The regulations required a gender recognition certificate issued under the 2004 Act, which in turn required that she divorce her wife. She appealed (with the support of the respondent) against the refusal of the UTAAC to find that she met the requirements.
Held: The Richards case established that the UK law before the 2004 Act did not satisfy the Directive. The claimant had initially applied and been rejected before the 2004 Act. That application must be judged on the law as it stood. Richards said only that the should be changed, not how it should be changed. The law applicable at the time was discriminatory, and the respondent could not rely on that law to deny the claimant her rights.
Judges: Thorpe, Moore-Bick, Aikens LJJ
Statutes: Gender Recognition Act 2004, Council Directive 79/7/ EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security
Links: Bailii, WLRD,
References:  EWCA Civ 701,  WLR (D) 155,  Fam Law 921,  Pens LR 245,  3 CMLR 42,  ICR 1369,  AACR 13
- (Un-named), UTAA, Appeal from, (Bailii,  UKUT 49 (AAC))
- Richards -v- Secretary of State for Work and Pensions (Social Policy), ECJ, Cited, (C-423/04, Bailii,  EUECJ C-423/04, Times 05-May-06,  ECR I-3585,  Fam Law 639,  3 FCR 229,  2 CMLR 49,  CEC 637,  Pens LR 123,  ICR 1181,  2 FLR 487,  All ER (EC) 895)
- Goodwin -v- The United Kingdom, ECHR, Cited, (Times 12-Jul-02, 28957/95, (2002) 35 EHRR 18, Worldlii, (2002) 35 EHRR 447, Bailii,  ECHR 588, 13 BHRC 120, (2002) 67 BMLR 199,  2 FCR 577,  2 FLR 487,  Fam Law 738,  IRLR 664,  ECHR 1666)
- Bellinger -v- Bellinger, HL, Cited, (House of Lords,  UKHL 21, Times 11-Apr-03, Bailii,  2 AC 467,  2 All ER 593,  Fam Law 485, 14 BHRC 127,  2 WLR 1174, 72 BMLR 147,  2 FCR 1,  HRLR 22,  1 FLR 1043,  UKHRR 679,  ACD 74)
The parties owned a property together. When their relationship broke down they now disputed the shhares in which they held the property. They had signed a declartion that the property was held for themselves as beneficial joint tenants.Court: ChD
Judges: Lewison J
References:  EWHC 3001 (Ch),
ECHR Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to access to court ; No separate issue under Art. 6-1 with regard to the length of the proceedings ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses (domestic proceedings) – claim rejected ; Costs and expenses partial award – Convention proceedingsCourt: ECHR
Links: Worldlii, Bailii,
References: 60533/00,  ECHR 348,
ECHR Judgment (Merits and just satisfaction) Violation of P1-1 ; Violation of Art. 6-1 ; Pecuniary damage – claim rejected ; Non-pecuniary damage – financial award ; Costs and expenses partial award – domestic proceedings ; Costs and expenses (Convention proceedings) – claim rejectedCourt: ECHR
Links: Worldlii, Bailii,
References: 45356/99,  ECHR 350,