Cumming v British Airways Plc: EAT 22 Jan 2021

The Claimant was a female member of British Airways (BA’s) Eurofleet aircrew. BA had a policy (accepted as being a PCP) that members of crew who took parental leave under the Maternity and Parental Leave etc Regulations 1999 would have one paid rest day removed for each three days’ parental leave taken in any monthly roster. She claimed that this policy involved indirect discrimination on grounds of sex because a higher proportion of women took parental leave than men and that the policy therefore put women at a ‘particular disadvantage’. It was common ground that the appropriate ‘pool’ for comparison was all crew members (both male and female) who had childcare responsibilities. The Employment Tribunal (ET) rejected the claim on the basis that all crew members (whether male or female) who took parental leave would lose the paid rest day(s). This was an error of law since not all crew members with childcare responsibilities would necessarily take parental leave and the proper comparison was between the impact of the policy on women with childcare responsibilities and the impact on men with childcare responsibilities. The Claimant’s appeal was allowed.
BA cross-appealed on the basis that the ET was wrong to find that the policy involved any ‘disadvantage’ at all. The ET had decided in effect that it was self-evident that this was so but did not consider BA’s arguments that it did not represent a ‘disadvantage’ but was in effect a function of the rostering system. BA’s arguments were worthy of consideration and the ET therefore made an error of law in failing to consider them; BA’s cross-appeal was therefore allowed.
The ‘particular disadvantage’ and ‘disadvantage’ issues were remitted to a fresh ET to be considered again on the same evidence along with the issue of justification which remained outstanding.

Citations:

[2021] UKEAT 0337 – 19 – 2201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661681

Tasca Tankers Ltd v Revenue and Customs (Application To Strike Out Appeal – No Reasonable Prospect of Success): FTTTx 29 Jan 2021

Application to strike out appeal – no reasonable prospect of success – Rule 8(3)(c) – MTIC appeal – evidence filed by Appellant alleged not to deal with case advanced by HMRC

Citations:

[2021] UKFTT 25 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes Management

Updated: 09 December 2022; Ref: scu.661750

Clark v Harney Westwood and Riegels (A Firm) and Others (Contract of Employment – Unlawful Deduction From Wages): EAT 21 Dec 2020

The Claimant was employed under a contract with a Cayman Islands firm, HWR. The Contract stated that it was governed by Cayman Islands law and subject to the jurisdiction of the Cayman Islands Courts. In January 2018, she was dismissed with a payment in lieu. She contended that the notice failed to comply with Cayman Islands Labour Law and was ineffective to terminate her contract. Three of the partners in the firm resided in the UK and the Claimant issued proceedings here. By the time she lodged her claim in the Tribunal, more than three months had elapsed since the payment in lieu. She also failed to obtain an Early Conciliation Certificate before lodging her claim. The Tribunal found that, notwithstanding the terms of her contract, she was employed by another Caymans entity, HG. It also held that there was no territorial jurisdiction to consider the claim, the Caymans being the proper forum, that there had been a failure to comply with EC requirements and that the claim was out of time. The claim was dismissed for want of jurisdiction. In coming to its conclusions the Tribunal rejected the Claimant’s claim that certain correspondence was without prejudice.
The Claimant appealed against the findings as to the identity of the employer, EC compliance, time limits, territorial jurisdiction and without prejudice privilege, amongst other matters.
Held, allowing the appeal in part, that the Tribunal had erred in concluding that HG was the employer. The written material was clear that HWR was the employer and everything in the parties’ relationship thereafter was consistent with that. On a proper application of the principles in Autoclenz, the only conclusion was that HWR was the employer. It followed that the Claimant was entitled, pursuant to Brussels Recast, to issue proceedings against those of the partners in HWR domiciled in the UK. Accordingly, the Tribunal had territorial jurisdiction over the claim. The Tribunal had also erred in failing to treat the correspondence as covered by without prejudice privilege in that there was no unambiguous impropriety here.
However, the Tribunal’s conclusions as to EC and the failure to comply with time limits were correct. Those jurisdictional hurdles had not been overcome and so the case remains dismissed for want of jurisdiction, notwithstanding the EAT’s findings on other matters.

Citations:

[2020] UKEAT 0018 – 20 – 2112

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661668

Clipperton and Another v Revenue and Customs (Income Tax – Settlements Legislation): FTTTx 20 Jan 2021

INCOME TAX – settlements legislation – chapter 5 Part 5 Income Tax (Trading and Other Income) Act 2005 – meaning of ‘settlement’ – meaning of ‘settlor’ – whether dividend or distribution taxable under s383 Income Tax (Trading and Other Income) Act 2005 – appeal dismissed

Citations:

[2021] UKFTT 12 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax

Updated: 09 December 2022; Ref: scu.661733

Odey Asset Management Llp v Revenue and Customs (Income Tax – Tax Effects of A Partnership Incentive Plan): FTTTx 4 Feb 2021

INCOME TAX – tax effects of a partnership incentive plan – whether the appellants are taxable on sums allocated to a corporate member of Odey Asset Management LLP in the year of allocation – no – whether the appellants are taxable on sums received on reallocation of special capital to them in the year of receipt under s 687 ITTOIA 2005 (miscellaneous income) – yes – or under ss 773 to 778 ITA 2007 (sales of occupational income) – no – whether an amendment and various discovery amendments were made validly under s 29 and 30B TMA – appeal allowed in part

Citations:

[2021] UKFTT 31 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax

Updated: 09 December 2022; Ref: scu.661768

Gordon v J and D Pierce (Contracts) Ltd (Contract of Employment : Unfair Dismissal): EAT 12 Jan 2021

The employee complained that he had been constructively dismissed. The Tribunal held that applying the test in Malik v BCCI the implied obligation of trust and confidence had not been breached. While the Respondents had behaved badly in some ways not all the causes of breakdown were to be attributed to them and the employee was to some degree a contributor to the breakdown. The claimant submitted that it was striking that the Tribunal largely referred to the test in Malik as necessitating destruction of the implied obligation. In fact it was sufficient if the relationship had been seriously damaged. Held that the Tribunal’s judgement did not suggest that the wrong test had been applied. It had recited the full test at one point in the Judgement. The likely explanation for the repeated reference to the destruction of the obligation rather than to serious damage, was that the Tribunal was abbreviating the test for convenience. When the evidence was considered, and the Tribunal’s reasoning examined the Tribunal’s conclusion was consistent with the correct test having been applied. Held further that by engaging in a grievance process available under the contract of employment the Claimant did not affirm the contract. Held further that the Tribunal had erred in law by failing to determine whether the hearing was to be restricted to liability as opposed to liability and quantum. Had that been the sole issue in dispute the case would have been remitted back so that the Claimant had an opportunity to lead evidence relevant to remedy.

Citations:

[2021] UKEAT 0010 – 20 – 1201

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.661683

Ogilvy, Regina (on The Application of) v Secretary of State for The Home Department: Admn 5 Feb 2021

The claimant sought judicial review of the failure on the part of the Secretary of State to deal with three applications that have been made by the claimant: firstly, an application for statelessness, secondly, submissions made under rules 353A and 353B of the Immigration Rules; and, thirdly, an application for a Home Office travel document.

Citations:

[2021] EWHC 841 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Immigration

Updated: 09 December 2022; Ref: scu.661923

Kaur v Revenue and Customs (Customs and Excise Duty Penalties – Importation of 8kg Hand Rolling Tobacco): FTTTx 14 Jan 2021

CUSTOMS AND EXCISE DUTY PENALTIES – importation of 8kg hand rolling tobacco – penalties imposed for conduct involving dishonesty – Appellant stated unaware of legal limits and had been given incorrect information when purchasing overseas – held conduct dishonest and appropriate mitigation given for disclosure and cooperation – appeal dismissed

Citations:

[2021] UKFTT 8 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Customs and Excise

Updated: 09 December 2022; Ref: scu.661740

Device (Trade Mark: Opposition): IPO 19 Sep 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Distinctive and dominant components
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Composite word marks
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Composite word and device marks
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Treatment of descriptive / allusive elements
Sections 5(1), 5(2) and 5(3) Likelihood of Confusion – Effect of concurrent use
Section 5(4) Earlier Rights – Passing off (Issues arising from Registry proceedings)
Revocation / Proof of Use – Dates – genuine use
Revocation / Proof of Use – Variant forms of marks – use with another mark
Revocation / Proof of Use – Variant forms of marks – use with matter added or subtracted

Citations:

[2019] UKIntelP o54519

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 09 December 2022; Ref: scu.661070

Waggy Doggy (Trade Mark: Opposition): IPO 10 Sep 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Composite word and device marks
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Treatment of descriptive / allusive elements
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Particular visual / aural / conceptual considerations
Sections 5(1), 5(2) and 5(3) Issues To Do With Goods / Services – Goods v retail services

Citations:

[2019] UKIntelP o53319

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 09 December 2022; Ref: scu.661110

Afterpay (Trade Mark: Opposition): IPO 24 Oct 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Distinctive and dominant components
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Composite word and device marks
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Treatment of descriptive / allusive elements
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Imperfect recollection
Sections 5(1), 5(2) and 5(3) Issues To Do With Goods / Services – Goods v retail services
Sections 5(1), 5(2) and 5(3) Average Customer – Consumer attention levels

Citations:

[2019] UKIntelP o64119

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 09 December 2022; Ref: scu.661117

Red Inside (Trade Mark: Invalidity): IPO 19 Jul 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Composite word and device marks
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Particular visual / aural / conceptual considerations
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Conceptual distinctions
Sections 5(1), 5(2) and 5(3) Average Customer – Consumer attention levels

Citations:

[2019] UKIntelP o41919

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 09 December 2022; Ref: scu.661002

Vetro (Trade Mark: Opposition): IPO 3 Sep 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Particular visual / aural / conceptual considerations
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Imperfect recollection
Revocation / Proof of Use – Variant forms of marks – stylistic / presentation differences

Citations:

[2019] UKIntelP o51319

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 09 December 2022; Ref: scu.661109

Whisky Viking (Trade Mark: Opposition): IPO 26 Sep 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Distinctive and dominant components
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Composite word and device marks
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Treatment of descriptive / allusive elements
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Particular visual / aural / conceptual considerations
Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Imperfect recollection

Citations:

[2019] UKIntelP o56819

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 09 December 2022; Ref: scu.661111

Regina v Leadbeater: 1988

The Judge was invited by both prosecution and defence to rule in advance of the case being opened whether there was a case to answer. He ruled that there was. The Defendant thereupon pleaded guilty. He appealed.
Held: The appeal failed. The cases in which it would be proper to rule on a submission of no case to answer before the end of the prosecution case were rare, and largely to be found where there was an objection to jurisdiction or an agreed statement of facts.

Citations:

[1988] Crim LR 463

Jurisdiction:

England and Wales

Cited by:

Cited – N Ltd and Another, Regina v CACD 10-Jun-2008
The defence had requested and been give a ruling of no case to answer. The prosecutor now appealed saying that this had been before he had closed the prosecution case, and had been not with his consent.
Held: The prosecutor’s appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 09 December 2022; Ref: scu.652236

Rahmatullah and Another v The Ministry of Defence and Another: QBD 10 Mar 2020

(Open judgment agreed after hearing using closed material) The claimants in this case are Pakistani nationals both of whom allege that they were captured by British forces in Iraq in February 2004. They contend that they were subsequently handed over to United States’ control and, thereafter, taken to Afghanistan where they were subjected to prolonged detention, torture and mistreatment.
The case against the defendants is based upon three broad categories of allegation:
i. mistreatment by UK personnel upon arrest and before the claimants were transferred to United States’ control;
ii. transfer to United States’ control; and
iii. failures thereafter to intervene to bring the claimants’ detention to an end and/or stop the United States’ authorities from further mistreating them (‘the return claim’)
The claims are strenuously denied.
This hearing considered the issue of disclosure.

Judges:

Turner J

Citations:

[2019] EWHC 3849 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Armed Forces, Human Rights, Litigation Practice, Evidence

Updated: 09 December 2022; Ref: scu.652256

Regina v MacKenzie: 1993

The defendant had been charged with two killings. The evidence depended on confessions he had made. He had, however, confessed also to twelve other killings, none of which the Crown believed he could have committed and at least some of which he certainly had not committed. There was medical evidence from both Crown and defence specialists which showed that he was mentally unstable. One of the defence specialists had invented a fictitious killing and the defendant had confessed to that also.
Held: His appeal was allowed.
Lord Taylor CJ said: ‘Applying the guidance given by this court in Galbraith we consider that where (1) the prosecution case depends wholly upon confessions (2) the defendant suffers from a significant degree of mental handicap and (3) the confessions are unconvincing to a point where a jury properly directed could not properly convict upon them, then the judge, assuming he has not excluded the confessions earlier, should withdraw the case from the jury . . We are therefore of opinion that when the three conditions tabulated above apply at any stage of the case, the judge should in the interests of justice take the initiative and withdraw the case from the jury.’

Citations:

(1993) 96 Cr App R 98

Jurisdiction:

England and Wales

Cited by:

Cited – N Ltd and Another, Regina v CACD 10-Jun-2008
The defence had requested and been give a ruling of no case to answer. The prosecutor now appealed saying that this had been before he had closed the prosecution case, and had been not with his consent.
Held: The prosecutor’s appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 09 December 2022; Ref: scu.652237

Regina v Griffiths: 1981

The Judge had purported to strike out a number of cases on the ground that prosecuting counsel was not immediately in court when they were called on. He then ordered that verdicts of ‘not guilty’ be entered. The Crown obtained voluntary bills of indictment. When arraigned on those new indictments, the several defendants pleaded autrefois acquit. The Judges hearing the new proceedings ruled that that plea could not be made out, because what the first Judge had done was a nullity and had not resulted in any valid acquittal.
Held: The decisions were upheld. the Lord Chief Justice set out various ways in which an indictment can be disposed of without trial: by plea of guilty, by plea in bar, by a nolle prosequi entered by the Attorney General, by a verdict under section 17 of the Criminal Justice Act 1967 consequent on the Crown offering no evidence, and by a stay on the ground of abuse of process. The purported direction that verdicts of ‘not guilty’ be entered was held to be a nullity.

Judges:

Lord Lane CJ

Citations:

(1981) 72 Cr App R 307

Statutes:

Criminal Justice Act 1967 17

Jurisdiction:

England and Wales

Cited by:

Cited – N Ltd and Another, Regina v CACD 10-Jun-2008
The defence had requested and been give a ruling of no case to answer. The prosecutor now appealed saying that this had been before he had closed the prosecution case, and had been not with his consent.
Held: The prosecutor’s appeal succeeded. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 09 December 2022; Ref: scu.652235

Rafiq v Director of Public Prosecutions: QBD 1997

The court heard an appeal from conviction of an offence under section 3.
Held: The court referred to Bezzina.
Popplewell J dissented from the approach in Bezzina, saying: ‘It seems to me that in order to impose some logic in this case the proper way to approach these cases is to take the view that if there is a bite without a reasonable apprehension immediately before that, the use of the word ‘any occasion’ is sufficient to impose a liability because there are grounds thereafter for reasonable apprehension that it will injury some other person.’
Auld LJ commented: ‘Depending on the circumstances, the time for apprehension, even by the notional reasonable bystander, may be so minimal as for practical purposes to be non-existent. The notion of reasonable apprehension of injury before it occurs in such circumstances, is artificial and the court should strain against adding that unhappy element to an already difficult statutory formulation. It seems to me that Kennedy LJ in that passage was unnecessarily focusing on the injury as if it were a necessary culmination and demonstration of anterior reasonable apprehension of injury. In my view there is no need for such an approach. The act of a dog causing injury, a bite or otherwise, is itself capable of being conduct giving grounds for reasonable apprehension of injury.’

Judges:

Auld LJ and Popplewell J

Citations:

[1997] JP 161

Statutes:

Dangerous Dogs Act 1991 3

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Bezzina, Regina v Codling, Regina v Elvin CACD 7-Dec-1993
The offence under section 3(1), requiring the owner to keep a dangerous dog under control, is one of strict liability. The court noted the difference in wording between the sections.
Kennedy LJ said: ‘Accordingly, we come to the conclusion . .

Cited by:

Cited – Gedminintaite, Regina v CACD 15-Feb-2008
Application for leave to appeal against a ruling given by His Honour Judge Gibson as to how he would address the jury in a case of an offence under the Dangerous Dogs Act 1991. Rottweiler with no history of aggression attacking passer by.
Lists of cited by and citing cases may be incomplete.

Crime, Animals

Updated: 09 December 2022; Ref: scu.652234

Matthey v Curling: HL 1922

During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the tenant’s covenants to insure and deliver up in good condition.
Held: The tenant remained liable. He had not been evicted by title paramount, and the occupation had been temporary, and did not excuse him from performance of his obligations.
Two questions arose. The first was whether the tenant, who had been evicted in January 1918 by ‘the military authorities’ acting under the Defence of the Realm Regulations, remained liable for rent and under covenants to repair, insure and deliver up the demised premises in good repair.
Held: A landlord’s wrongful refusal to give the tenant possession of the premises constituted an eviction which suspended the tenant’s obligation to pay rent. However, the fact of the eviction does not suspend the tenant’s obligations under covenants other than that for the payment of rent, with the result that the tenant remained liable to pay outgoings.
Lord Buckmaster (Lords Wrenbury and Carson agreeing) said: ‘Eviction by the lessor himself is with equal reason an answer to the claim upon the covenant [to pay rent], and in such a case, as Jervis C.J. said in Upton v. Townend , the question is whether there is an eviction in fact, and whether the plaintiff [that is, the lessor] was a party to it, and again, later on in the judgment, he repeats ‘it is for the jury to say whether the act was done by the landlord, and whether it was done with the intention of depriving the tenant of the enjoyment.’
Lord Atkinson (Lords Sumner and Carson agreeing) added: ‘another instance in which the lessee is deprived of the enjoyment of part of the demised premises, is where the lessor tortiously evicts the lessee from that part. The effect of such an act was dealt with in Morrison v Chadwick and it was decided that such an eviction creates a suspension of the entire rent during its continuance, but that the tenancy is not thereby put to an end, nor is the tenant thereby discharged from the performance of his covenants other than the covenant for the payment of rent.’
Lord Atkinson said: ‘a person who expressly contracts absolutely to do a thing not naturally impossible is not excused for non-performance because of being prevented by the act of God or the King’s enemies . . or vis major’.
And the ‘leasehold estate cannot be divorced from its origins and basis in the law of contract’

Judges:

Buckmaster, Wrenbury, Carson Atkinson, Sumner LL

Citations:

[1922] 2 AC 180, [1922] All ER Rep 1, (1922) 91 LJKB 593, (1922) 127 LT 247, (1922) 38 TLR 475, (1922) 66 Sol Jo 386, [1922] 2 AC 180, 91 LJKB 593

Jurisdiction:

England and Wales

Citing:

Appeal from – Matthey v Curling CA 1920
. .

Cited by:

Approved – Cricklewood Property and Investment Trust Ltd v Leighton’s Investment Trust Ltd HL 1945
Wartime regulations were implemented which prohibited the building on land which was already subject to a building lease which required the lessees to erect several shops.
Held: Even if the doctrine of frustration could apply to a lease, the . .
Cited – Chelsea Building Society v Nash CA 19-Oct-2010
The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Contract

Updated: 09 December 2022; Ref: scu.652302

Q Studios (Stoke) RTM Co Ltd v Premier Grounds Rents No6 Ltd (Leasehold Enfranchisement – Right To Manage): UTLC 19 Jun 2020

Student lets – meaning of ‘flat’ in Commonhold and Leasehold Reform Act 2002, Part 2, Chap. 1 – meaning of ‘dwelling’ – whether terms on which dwelling let relevant – whether communal facilities in large block were shared living accommodation, such that studios not ‘occupied as a separate dwelling’.

Citations:

[2020] UKUT 197 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 09 December 2022; Ref: scu.652176

Tough v Revenue and Customs (Practice and Procedure – Strike Out): EAT 14 Feb 2020

The Claimant’s claims of direct disability discrimination and harassment had been struck out after a Preliminary Hearing at which the Employment Tribunal (‘ET’) had determined he was not a disabled person for the purposes of the Equality Act 2010. The Claimant appealed, complaining that the ET had erred: (1) in failing to make findings as to perceived disability discrimination and harassment; and (2) in striking out claims of direct disability discrimination, and harassment related to disability, purely on the basis that it had found that the Claimant was not disabled.
Held: dismissing the appeal
It was a moot point whether there could be harassment related to a perceived disability but that was assumed in the Claimant’s favour for the purposes of the appeal. Adopting that course and further allowing that, unless a complainant has expressly limited their claim to a particular form of direct discrimination or harassment that requires that they first establish that they fall within the definition of a disabled person of the purposes of the EqA, it may not be possible to do justice to the case without properly exploring the employer’s reasoning, it was apparent that the Claimant had so limited his claim in this case. Even if that was unclear from his ET1 (and allowing that the Claimant was acting in person), at an earlier case management stage, he had accepted the question whether he was a disabled person should be determined as a preliminary issue in his case. At the subsequent Preliminary Hearing, listed to consider that question, the Claimant further accepted that a finding that he was not disabled would be determinative of his claims. The ET did not err in determining the case before it.

Citations:

[2020] UKEAT 0255 – 19 – 1402

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652138

Pranczk v Hampshire County Council: EAT 12 Jun 2020

The Claimant in the Employment Tribunal, who was a litigant in person, presented a claim form which, it was not disputed, raised claims for wages and in respect of loss of annual leave entitlement.
The Claimant did not attend the full merits hearing. The Tribunal dismissed her claims on the basis that the wages had been paid, and carry-over of the annual leave had been granted. It determined that there were no other claims raised by the claim form. It awarded the Respondent pounds 750 costs on the basis that the Claimant had unreasonably continued with the litigation after the wages and leave claims had been satisfied.
The Claimant appealed (a) on the basis that the Tribunal erred by not identifying that the claim form contained a claim of disability discrimination and/or victimisation; and (b) in respect of the award of costs.
Held:
(1) The Tribunal had not erred in not identifying any claim of disability discrimination or victimisation in the claim form. On a fair reading of the claim form, it did not contain any such complaint.
(2) The Tribunal acted unfairly in making an award of costs in the Claimant’s absence. It also in any event erred in failing to consider whether to take into account her means, or to explain whether, or how, it had done so. The costs award was quashed.

Citations:

[2020] UKEAT 0272 – 19 – 1206

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 09 December 2022; Ref: scu.652144

Wheatstone v Blakeney News Food and Wine Ltd and Others (Disability Discrimination): EAT 11 Feb 2020

An Employment Tribunal was entitled to find, on the medical evidence before it, that the admitted disability, namely epilepsy, was not the reason for the Appellant’s absence from work. Consequently, its finding that the Respondent’s unfavourable treatment of her arising from the that absence was not related to the disability was not an error of law.

Citations:

[2020] UKEAT 0287 – 19 – 1102

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 09 December 2022; Ref: scu.652139

Depp v News Group Newspapers Ltd and Another: QBD 29 Jun 2020

Application by the Defendants for a declaration that the claim stands struck out because of the Claimant’s alleged failure to comply with earlier ‘unless’ order for disclosure. Documents to be disclosed held under protection for third party by US court.

Judges:

Mr Justice Nicol

Citations:

[2020] EWHC 1689 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Defamation

Updated: 09 December 2022; Ref: scu.652147

Hartopp v Hartopp and Akhurst: 1899

Gorell Barnes J said: ‘Now the guiding principle which will be found running through the cases is, in my opinion, this: Where the breaking up of the family life has been caused by the fault of the respondent, the Court, exercising its powers under the above section, ought to place the petitioner and the children in a position as nearly as circumstances will permit the same as if the family life had not been broken up.’
and: ‘It follows that where the trust funds are settled, as is usual, upon the parents successively, or upon one of them for life, with remainder to the children, the Court, while it might extinguish the whole or a part of the guilty parent’s life interest and his or her power of appointment, if any, amongst the children, would not interfere to deprive the children of those interests to which they are entitled under the settlement.’

Judges:

Gorell Barnes J

Citations:

[1899] P 65

Jurisdiction:

England and Wales

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 09 December 2022; Ref: scu.652166

Williams v A and W Hemphill Ltd: HL 1966

Against his employer’s instructions, a driver of a lorry deviated substantially from his route. On the detour, an accident occurred owing to the fault of the driver. The question arose whether the employers of the lorry driver were vicariously liable.
Held: Lord Pearson said: ‘Had the driver in the present case been driving a lorry which was empty or contained nothing of real importance, I think that so substantial a deviation might well have constituted a frolic of his own. The presence of passengers, however, whom the servant is charged qua servant to drive to their ultimate destination makes it impossible (at all events, provided that they are not all parties to the plans for deviation) to say that the deviation is entirely for the servant’s purposes. Their presence and transport is a dominant purpose of the authorised journey, and, although they are transported deviously, continues to play an essential part. It was said in argument that there must be some limits to that contention and that one could not hold that, if the driver had gone to Inverness, he would still be acting on his master’s business. No doubt there are such limits to the argument as common sense may set on the facts of each case. But when there are passengers whom the servants on his master’s behalf has taken aboard for transport to Glasgow, their transport and safety does not cease at a certain stage of the journey to be the master’s business, or part of his enterprise, merely because the servant has for his own purposes chosen some route which is contrary to his instructions . . The more dominant are the current obligations of the master’s business in connection with the lorry, the less weight is to be attached to disobedient navigational extravagances of the servant . . In weighing up, therefore, the question of degree, whether the admittedly substantial deviation of the vehicle with its passengers and baggage was such as to make the lorry’s progress a frolic of the servant unconnected with or in substitution for the master’s business, the presence of the passengers is a decisive factor against regarding it as a mere frolic of the servant. In the present case the defenders remained liable, in spite of the deviation, for their driver’s negligence.’

Judges:

Lord Pearson

Citations:

1966 SC(HL) 31, [1966] UKHL 3

Links:

Bailii

Jurisdiction:

Scotland

Citing:

Cited – Kirby v National Coal Board OHCS 1958
The court considered the degree of connection necessary between the act of an employee and his employer’s business to establish liability under the rule respondeat superior: ‘four different types of situation have been envisaged as guides to the . .

Cited by:

Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Lists of cited by and citing cases may be incomplete.

Vicarious Liability

Updated: 09 December 2022; Ref: scu.214664

Winrow v Hemphill and Another: QBD 6 Oct 2014

The claimant had been injured in a road traffic accident in Germany. Liability being admitted, the court now asked whether damages should be assessed according to UK or German law. The claimant was a UK national but had been resident in Germany with her husband for several years.

Judges:

Slade DBE

Citations:

[2014] EWHC 3164 (QB)

Links:

Bailii

Statutes:

Council Regulation on Jurisdiction No. 44 of 2001, Regulation (EC) No. 864/2007 4(1)

Jurisdiction:

England and Wales

Personal Injury, Damages, International

Updated: 09 December 2022; Ref: scu.537358

Milne v Open Access Finance Ltd and Another: ChD 12 Mar 2020

Whether the Court has power to make an order under rule 19.6 of the Civil Procedure Rules for a Consumer Credit Act claim relating to a credit agreement or a regulated agreement to continue against representatives of the defendant creditors.

Citations:

[2020] EWHC 1420 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Consumer, Banking, Litigation Practice

Updated: 09 December 2022; Ref: scu.651898

Regina v Panel of Takeovers and Mergers ex parte Fayed: CA 1992

Steyn LJ said of the reviewability of decisions of the Director of Public Prosecutions: ‘. . it seems to me that, in the absence of evidence of fraud, corruption or mala fides, judicial review will not be allowed to probe its decision to charge individuals in criminal proceedings. The law must take a practical view of the limits of judicial review. It would be unworkable to extend judicial review into this field.’
Neill LJ said that the court has a discretion to stay civil proceedings until related criminal proceedings have been determined: ‘It is clear that the court has power to intervene to prevent injustice where the continuation of one set of proceedings may prejudice the fairness of the trial of other proceedings . . But it ‘is a power which has to be exercised with great care and only where there is a real risk of serious prejudice which may lead to injustice.’

Judges:

Steyn LJ, Neill LJ

Citations:

[1992] BCC 524

Jurisdiction:

England and Wales

Cited by:

Cited – JJ Manangement Llp and Others, Regina (on The Application of) v Revenue and Customs and Another Admn 25-Jul-2019
Challenge to the lawfulness of an investigation by HMRC of tax affairs relating to the claimant’s businesses in Europe. HMRC had been claiming a right to conduct an informal investigation using the 2005 Act. The taxpayer sought judicial review of . .
Cited – JJ Management Consulting Llp and Others v Revenue and Customs CA 22-Jun-2020
HMRC has power to conduct informal investigation
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, Criminal Practice

Updated: 09 December 2022; Ref: scu.651923

M White (Skips) Limited: UTAA 30 Apr 2020

Application for a restricted licence; fitness to hold a restricted licence; unlawful operation of goods vehicles; adequacy of the call up letter; procedural fairness and failure to consider adjourning hearing for the Applicant to address issue of unlawful operation; application of Priority Freight and Bryan Haulage questions

Citations:

[2020] UKUT 153 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 09 December 2022; Ref: scu.651820

London Borough of Waltham Forest v Marshall: UTLC 3 Feb 2020

HOUSING – CIVIL PENALTY – Housing Act 2004 – licences for rented property – financial penalty notice – the approach to be taken by courts and tribunals on appeals from decisions taken by a local authority in accordance with a lawful policy

Citations:

[2020] UKUT 35 (LC)

Links:

Bailii

Jurisdiction:

England and Wales

Housing

Updated: 09 December 2022; Ref: scu.651753

F v Responsible Body of School W: UTAA 6 Apr 2020

The appeal is allowed. The decision of the First-tier Tribunal on the papers on 31 October 2019 under reference EH935/1900089 involved the making of an error of law and is set aside. Acting under section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007, I remake the decision in terms that the claim is to be registered including, as free-standing claims, the appellant’s claims based on a failure to make reasonable adjustments

Citations:

[2020] UKUT 112 (AAC)

Links:

Bailii

Jurisdiction:

England and Wales

Discrimination

Updated: 09 December 2022; Ref: scu.651817