Outram and Another v Revenue and Customs (Application That HMRC Be Precluded From Raising An Alternative Argument Set Out In Their Skeleton Argument): FTTTx 2 Feb 2021

Application that HMRC be precluded from raising an alternative argument set out in their skeleton argument that Montpelier acted on behalf of the appellants when considering the 20 year time limit for discovery assessments – skeleton only submitted a fortnight before the hearing of the appeals – Quah, Hicks and Taube considered – application allowed

Citations:

[2021] UKFTT 29 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes Management

Updated: 05 December 2022; Ref: scu.661770

Revenue and Customs v Tooth: SC 14 May 2021

Issues of general importance about the power of Her Majesty’s Revenue and Customs (in this context ‘the Revenue’) to make what is generally known as a discovery assessment.

Judges:

Lord Reed, President, Lord Briggs, Lord Sales,Lord Leggatt, Lord Burrows

Citations:

[2021] UKSC 17

Links:

Bailii, Bailii Press Summary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Citing:

Appeal from (CA) – Revenue and Customs v Tooth CA 15-May-2019
Participation in tax avoidance scheme – carry back of losses. . .
At UTTC – Revenue and Customs v Tooth UTTC 7-Feb-2018
INCOME TAX – discovery assessment – whether ‘discovery’ – whether insufficiency of tax brought about deliberately . .
Lists of cited by and citing cases may be incomplete.

Income Tax

Updated: 05 December 2022; Ref: scu.662467

Bee v Jenson: ComC 21 Dec 2006

The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the plaintiff’s claim. He also said that the insurer should give credit for any commission received by the insurer from the hire company.
Held: The defendant was liable. The arrangements between the claimant and his insurers were not the concern of the defendant. It was necessary to distinguish subrogation to remedy an unjust enrichment, and contractual subrogation which was concerned only with the mutual rights and obligations under the insurance contract and did not affect strangers to the contract. The insurance benefit is not the provision of a car but rather the payment of hire charges. The fact that Mr Bee was the Hirer under the agreement and that there was an express right of subrogation in order to recover Vehicle Hire Costs indicate that DAS were not the providers of the car; they merely reserved the right to nominate the hire company which would be unnecessary were DAS providing the car themselves. Even if it was contemplated that Mr Bee would never pay the hire charge himself, nonetheless he was in receipt of an insurance benefit, namely an indemnity against the cost of hire.

Judges:

Monson J

Citations:

Times 16-Jan-2007, [2006] EWHC 3359 (Comm), [2007] Lloyd’s Rep IR Plus 32

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Castellain v Preston CA 12-Mar-1883
The court emphasised the amplitude of the insurer’s right of subrogation which gave him ‘the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted . .
Cited – Adams v London Improved Motor Coach Builders Ltd CA 1921
The plaintiff successfully sued his employers for wrongful dismissal. The defendant argued it should not pay costs since it was the plaintiff’s union who had retained the solicitors in the case, and it was the union to which the solicitors looked . .
Cited – Yorkshire Insurance Co Ltd v Nisbet Shipping Co Ltd QBD 1961
The assured alone can give a valid receipt and discharge to a third party against whom a judgment has been given following a successful subrogated claim.
Diplock J said: ‘The expression ‘subrogation’ in relation to a contract of marine . .
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Cited – Burdis v Livsey QBD 2001
The several cases claimed the cost of provision by credit hire companies of car hire and repair services to the innocent victims of road accidents. The transactions were ‘res inter alios acta’ – collateral to the commission of the tort. . .
Cited – Dimond v Lovell HL 12-May-2000
A claimant sought as part of her damages for the cost of hiring a care whilst her own was off the road after an accident caused by the defendant. She agreed with a hire company to hire a car, but payment was delayed until the claim was settled.
Cited – Davies v Taylor (No 2) HL 2-Jan-1974
The plaintiff argued that no costs had been incurred by the successful defendant, as he was insured, and the insurance company was bound to pay his costs.
Held: ‘In this case the solicitors, no doubt first instructed by the insurance company, . .
Cited – Banque Financiere De La Cite v Parc (Battersea) Ltd and Others HL 16-Apr-1998
The making of an order for restitution after finding an unjust enrichment by subrogation, is not dependant upon having found any common or unilateral intention of the parties. The House distinguished between contractual subrogation of the kind most . .
Cited – Hobbs v Marlowe HL 1978
The doctrine of subrogation in contracts of insurance operated entirely by virtue of an implied term of the contract of insurance: ‘I take it to be clear beyond all argument that an assured under a policy insuring him against loss of or damage to a . .
Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others IHCS 2000
Lord Rodger: ‘Subrogation works by giving the insurer who indemnifies the assured the right to raise proceedings in his name and, by the very nature of the circumstances in which it comes into play, the proceedings by the insurer must necessarily be . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 05 December 2022; Ref: scu.247978

Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others: HL 7 Feb 2002

Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual requirement, those giving the contractual indemnity must bear the primary liability. The insurer could claim subrogation to the indemnity claim in respect of the same loss.

Judges:

Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Scott of Foscote

Citations:

Times 13-Feb-2002, [2002] UKHL 4, [2002] 1 LLR 553, [2002] Lloyds Rep IR 261, [2002] 1 All ER (Comm) 321, 2002 SLT 278, [2002] CLC 741, 2002 SC (HL) 117, [2002] BLR 139, 2002 SCLR 346, 2002 GWD 6-178

Links:

House of Lords, Bailii

Jurisdiction:

Scotland

Citing:

Cited – Randal v Cockran 17-Jun-1948
An insurer who has fully indemnified an insured against a loss covered by a contract of insurance between them may ordinarily enforce, in the insurer’s own name, any right of recourse available to the insured. . .
Cited – Mason v Sainsbury 19-Apr-1782
A claim was made upon insurance after a riot. The court asked asked ‘Who is first liable?’ This was not an issue of chronology but of establishing where the primary responsibility lay to make good the loss. The Act laid the primary responsibility . .
Cited – London Assurance Company v SainsburyWood Immigration 28-Jun-1783
An insurance office having paid the assured the amount of the loss sustained by him in consequence of a demolishing by rioters, sued the hundredors under the stat. I G. 1, at. 2, e. 5, s. 6, in their own names. HeId by Lord Mansfield and Butler, J. . .
Cited – Yates v Whyte 1838
Plaintiff sued Defendants for damaging his ship by collision : Held, that Defendants were not entitled to deduct from the amount of damages to be paid by them, a sum of money paid to Plaintiff by insurers in respect of such damage. . .
Cited – Dickenson v Jardine CCP 1868
Goods had been insured for the voyage, but were jettisoned on it. The ship completed her voyage, and the owners of the goods became entitled to recover general average contribution from the other interests which had profited from the jettison. . .
Cited – North British and Mercantile Insurance Company v London Liverpool and Globe Insurance Company 1877
In a dispute between insurers as to who should bear the loss, it was held that the loss should be borne by the wharfinger’s insurer because ‘the primary liability’ was that of the wharfinger. The customary strict responsibility of a wharfinger for . .
Cited – Castellain v Preston CA 12-Mar-1883
The court emphasised the amplitude of the insurer’s right of subrogation which gave him ‘the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted . .
Cited – Lord Napier and Ettrick and Another v Hunter and Others; Same v R F Kershaw Ltd HL 3-Mar-1993
Certain insureds sought recovery of a sum which was greater than the sum which had been paid to them by their insurers. The insureds had claimed first on the policies of insurance. Their claims had been met. The insureds then pursued an action in . .
Cited – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Cited – The Iron and Steel Fencing and Buildings Co 1891
The particular use of the goods in question on which the pursuers’ claim for loss was based was a use which was not within the contemplation of the parties to the contract at the time it was made, and therefore the proper level of damages was that . .
Cited – Sickness and Accident Assurance Association v General Accident Assurance Corporation Limited OHCS 1892
An insurance company, after paying to a tramway company a sum due under a policy insuring against loss by accident, raised an action in its own name against another insurance company for contribution on the ground that it had insured the same risk. . .
Cited – Larrinaga Steamship Co Ltd v The King HL 1944
The vessel, discharging at St. Nazaire, was ordered by charterers to return to Cardiff. Despite severely deteriorating weather conditions a Sea Transport Officer instructed the vessel to sail on completion of discharge to Quiberon Bay to join a . .
Cited – Scholefield Goodman and Sons Ltd v Zyngier PC 16-Aug-1985
(Victoria) By a mortgage executed in favour of the bank Mrs Zyngier covenanted to pay to the bank any sums which might be owed to it either by herself or by a named company, including any amounts for or in respect of any bills of exchange on which . .
Cited – Esso Petroleum Co Ltd v Hall Russell and Co Ltd (The Esso Bernicia) HL 1989
Lord Goff of Chieveley said: ‘In normal cases, as for example under contracts of insurance, the insurer will on payment request the assured to sign a letter of subrogation, authorising the insurer to proceed in the name of the assured against any . .
Cited – Hotel Services Ltd v Hilton International Hotels (Uk) Ltd CA 15-Mar-2000
. .
Appeal from – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others IHCS 2000
Lord Rodger: ‘Subrogation works by giving the insurer who indemnifies the assured the right to raise proceedings in his name and, by the very nature of the circumstances in which it comes into play, the proceedings by the insurer must necessarily be . .

Cited by:

Cited – Co-Operative Retail Services Limited and others v Taylor Young Partnership and others HL 25-Apr-2002
Whilst a substantial new building was being constructed, it was damaged by fire caused by the negligence of several contractors. The case concerned apportionment of liability.
Held: The appeal failed. The parties could by agreement vary the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Damages

Updated: 05 December 2022; Ref: scu.167608

Chocosuisse Union Des Fabricants Suisse De Chocolat et Al v Cadbury Ltd: CA 25 Feb 1999

A trade association formed to protect a trading style or name, but which did not itself trade in the goods, had no trade which was capable of being damaged and accordingly had no locus standi to found an action for passing off against the use of the name it set out to defend.

Citations:

Times 15-Mar-1999, [1999] EWCA Civ 856

Jurisdiction:

England and Wales

Citing:

Appeal from – Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited PatC 29-Oct-1997
The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 05 December 2022; Ref: scu.79104

Caradon District Council v Paton; Same v Bussell: CA 10 May 2000

The council had applied for an injunction to restrain the defendants from letting their properties on short term lets for holidaymakers. The houses had been sold by the council under the right to buy schemes, and they remained subject to covenants restraining the use of the property other than as a private dwelling house and not for business use. It now appealed against the refusal of such injunctions.
Held: The appeal succeeded. The use for lettings of one or two weeks at a time were not lettings as a private dwelling house, since they lacked the necessary permanence. The tenants could not be said to be using the properties as a home even for the short period, and the lettings were in breach. The use as a private dwellinghouse required some occupation as a home. That element implied a permanence and intention to reside in the property which was missing from such lets. Lord Justice Latham emphasised that covenants must be construed in their context. The context here was the desire to preserve the availability of housing stock built with public funds. Given this finding it was unnecessary to decide whether the use was in breach of the covenant against use for business

Judges:

Latham LJ, Clarke LJ

Citations:

Times 17-May-2000, Gazette 31-May-2000, [2000] 3 EGLR 57, (2001) 33 HLR 34

Statutes:

Housing Act 1980

Jurisdiction:

England and Wales

Cited by:

Cited – Triplerose Ltd v Beattie and Another UTLC 4-Jun-2020
Short term visitor sublets were breach of lease
Landlord and Tenant – Breach of Covenant – covenant against use of flat other than as a private dwelling house and prohibiting use for trade or business – whether breached by use of flat as serviced apartment advertised on internet booking sites – . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.78885

Azov Shipping Company v Baltic Shipping Co (No 2): ComC 12 Jan 1999

ComC Security for costs.

Judges:

Longmore J

Citations:

[1999] 2 Lloyd’s Rep. 39

Jurisdiction:

England and Wales

Cited by:

Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Mentioned – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 05 December 2022; Ref: scu.225393

Wilhelm Finance Inc v Ente Administrador Del Astillero Rio Santiago: ComC 19 May 2009

The defendant sought to have leave for substituted service to be set aside, saying that it was a state owned entity with immunity under the 1978 Act.

Judges:

Teare J

Citations:

[2009] EWHC 1074 (Comm), [2009] 1 CLC 867

Links:

Bailii

Statutes:

State Immunity Act 1978

Jurisdiction:

England and Wales

Litigation Practice

Updated: 05 December 2022; Ref: scu.346192

Bristol City Council (Local Government): ICO 27 May 2020

The complainant has requested all of the information held by Bristol City Council (the council) that relates to a dispute over a particular barge, and also the council’s proposed purchase of that barge. The council refused to comply with the request on the grounds that it would exceed the cost of compliance to do so (section 12 of the FOIA). The Commissioner’s decision is that the council is entitled to rely on section 12(1) as its basis for refusing to comply with the request. She is also satisfied that the council has met its obligations under section 16 of the FOIA by offering advice and assistance to the complainant. However, the Commissioner has found that the council has breached section 17(1) of the FOIA as it failed to issue a refusal notice within the prescribed 20 working days. The Commissioner does not require the council to take any steps as a result of this decision notice.
FOI 17: Complaint upheld FOI 16: Complaint not upheld FOI 12: Complaint not upheld

Citations:

[2020] UKICO fs50909984

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.653580

West Midlands Ambulance Service NHS Trust (Health): ICO 3 Oct 2022

The complainant has requested information from West Midlands Ambulance Service University NHS Foundation Trust (WMAS) regarding staff dismissals. WMAS provided some information within the scope of the request, but refused to provide the remaining information by virtue of section 40(2) of FOIA – third party personal information. The Commissioner’s decision is that WMAS has correctly relied on section 40(2) of FOIA to refuse to disclose the remaining information. The Commissioner does not require WMAS to take any remedial steps.
FOI 40(2): Complaint not upheld

Citations:

[2022] UKICO 165135

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.683150

Arthur v Clarkson: 25 Apr 1866

A person voluntarily gave his promissory note to trustees for his natural child, and deposited with them the title-deeds for the purpose of carrying into effect his intention as to the promissory note.

Citations:

[1866] EngR 142 (A), (1866) 35 Beav 458

Links:

Commonlii

Jurisdiction:

England and Wales

Trusts

Updated: 05 December 2022; Ref: scu.280853

Eden v OHMI (Judgment): ECFI 27 Oct 2005

Europa Community trade mark – Olfactory mark: Smell of ripe strawberries – Absolute ground for refusal – Sign not capable of being represented graphically – Article 7(1)(a) of Regulation (EC) No 40/94.

Citations:

T-305/04

Jurisdiction:

European

Intellectual Property

Updated: 05 December 2022; Ref: scu.234762

London Borough of Waltham Forest (Local Government) fs50878392: ICO 11 Feb 2020

The complainant requested copies of information about energy charges provided to new residents of specific properties. The London Borough of Waltham Forest provided all the information it held within the scope of the request. The Commissioner’s decision is that London Borough complied with its duty under section 1(1) of the FOIA within 20 working days. It also complied with its section 11 duty to communicate the information it held in the format the complainant had requested. The Commissioner therefore finds that the London Borough did not breach either aspect of the FOIA in responding to the request. However she has made some more general comments in the ‘Other Matters’ section of this notice. As no breach of the Act has occurred, the Commissioner does not require any remedial steps to be taken.
FOI 10: Complaint not upheld FOI 1: Complaint not upheld FOI 11: Complaint not upheld

Citations:

[2020] UKICO fs50878392

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.651427

Blackburn With Darwen Borough Council (Local Government): ICO 25 Oct 2021

The complainant has requested from Blackburn with Darwen Council information relating to specific payments it had made to two parties. The Commissioner’s decision is that the information requested is environmental and therefore the Council should have dealt with the request under the Environmental Information Regulations 2004 and not the FOIA. The Commissioner requires the Council to take the following steps to ensure compliance with the legislation. Reconsider and respond to the complainant’s request dated 2 September 2020 under the EIR. In doing so the Council should have careful regard to the Commissioner’s observations in ‘Other matters.
FOI 39: Complaint upheld

Citations:

[2021] UKICO ic-56983

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.674990

Blaenau Gwent County Borough Council (Local Government): ICO 29 Jun 2020

The complainant requested information relating to subsidies paid in respect of concessionary travel. Blaenau Gwent Council (the Council) refused to provide the requested information in reliance on the exemptions at section 41 and section 43(2) of the FOIA. The Commissioner’s decision is that the exemption at section 41 is engaged. Therefore the Council was entitled to refuse the request. The Commissioner does not require any steps to be taken.
FOI 41: Complaint not upheld

Citations:

[2020] UKICO fs50910405

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.653614

Nhs England (Health): ICO 4 Oct 2019

The complainant has requested information relating to the experiences black and ethnic minority individuals face as a result of being in environments or being brought up or living in areas where mostly everyone is white. Initially, NHS England advised the complainant that it does not hold any recorded information. However, during the Commissioner’s investigation it accepted that it does hold recorded information of the nature specified in the request but considers the cost to comply would exceed the appropriate limit and therefore section 12 of the FOIA applies. The Commissioner’s decision is that NHS England is entitled to rely on section 12 of the FOIA in this case. She has however found NHS England in breach of section 1(1)(a), 10, 17(5) of the FOIA. She has also found NHS England in breach of section 16. This is because it claimed a later reliance on section 12, section 12 triggers a duty to provide advice and assistance and to date NHS England has not complied with this requirement. NHS England is required to provide advice and assistance to the complainant so far as it is reasonable to do so in accordance with its obligations under section 16 of the FOIA.
FOI 17: Complaint upheld FOI 10: Complaint upheld FOI 1: Complaint upheld FOI 12: Complaint not upheld

Citations:

[2019] UKICO fs50819542

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.643503

Ladson Preston Ltd and Aka Developments Greenview Ltd v Revenue and Customs (SDLT): UTTC 15 Nov 2022

Stamp Duty Land Tax – Multiple Dwellings Relief – Whether Buildings In Process of Being Constructed for Use as dwellings – no – effective date of transaction – whether activities undertaken after time of completion of transaction relevant to determining chargeable interest acquired – no – appeal dismissed

Citations:

[2022] UKUT 301 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Stamp Duty

Updated: 05 December 2022; Ref: scu.683489

Cero Navigation Corporation v Jean Lion and Cie: ComC 11 Jan 2000

Whether on the proper construction of clause 28 of a charterparty on the standard form of the Sugar Charterparty 1969 a strike occurring during the running of the laytime interrupted the running of laytime.

Judges:

The Hon Mr Justice Thomas

Citations:

[2000] EWHC 207 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Transport

Updated: 05 December 2022; Ref: scu.201669

Cambridgeshire County Council (Local Government): ICO 10 Nov 2021

The complainant requested information with regards to a complaint. Cambridgeshire County Council (the council) initially refused to provide the information as it considered it to be exempt under section 42(1) of the FOIA (legal professional privilege). During the Commissioner’s investigations it applied section 40(1) of the FOIA to refuse the information – the requestor’s own personal data. The Commissioner’s decision is that section 40(1) is engaged and the council was correct to refuse to provide the information. The Commissioner also found that the council breached section 17(1) of the FOIA as it failed to issue a valid refusal notice. As the Commissioner has found section 40(1) to be engaged, she does not require the council to take any steps. First-tier Tribunal (General Regulatory Chamber) Information Rights appeal EA/2021/0351 under appeal.
FOI 40: Complaint not upheld

Citations:

[2021] UKICO ic-88694

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.675058

Health and Safety Executive (Other) 132799: ICO 7 Jun 2022

The complainant has requested information regarding a tunnel collapse. The Commissioner’s decision is that the Health and Safety Executive has failed to comply with its duties under section 1(1) of FOIA and, to the extent that the information may be environmental, Regulation 5(1) of the EIR. The Commissioner requires the HSE to take the following steps to ensure compliance with the legislation: confirm or deny whether it holds any information falling within the scope of the request; If and to the extent that information is held, either: disclose that information or; issue a refusal notice that complies with section 17 of FOIA or; to the extent that the information is environmental, issue a refusal notice that complies with Regulation 14 of the EIR.
EIR 5(1): Complaint upheld FOI 1: Complaint upheld

Citations:

[2022] UKICO 132799

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.679430

Talbot Underwriting Ltd v Nausch Hogan and Murray: ComC 31 Oct 2005

Judges:

Cooke J

Citations:

[2005] EWHC 2359 (Comm), [2005] 2 CLC 868

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Burnand v Rodocanachi HL 1882
The respondents took valued insurance, including war risks, on a cargo which was later destroyed by the Confederate cruiser Alabama. The underwriters paid to the respondents as on an actual total loss the valued amounts, which were less than the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 05 December 2022; Ref: scu.234539

Re The English, and Co, Rolling Stock Company Lyon’s Case: 2 May 1866

Alteration of the articles of association of a company between an application for shares and their allotment, held not to invalidate the allotment, such alteration being made under the authority of the Companies Act, 1862, and the objects of the company not being thereby altered.

Citations:

[1866] EngR 147, (1866) 35 Beav 646, (1866) 55 ER 1048

Links:

Commonlii

Jurisdiction:

England and Wales

Company

Updated: 05 December 2022; Ref: scu.280858

University Hospital of Derby and Burton NHS Foundation Trust (Health): ICO 31 Oct 2022

The complainant made a multi-part request to the Trust regarding documents supposed to be available to support the Trust’s self-assessment of vascular services. The Trust answered all parts of the request but some confusion remained over whether the Trust had answered part 4 correctly and complied with its obligations under section 1(1) of the FOIA. The Commissioner’s decision is that the Trust has complied with its obligations under section 1(1) of the FOIA and that, on balance, it does not hold the requested information.
FOI 1: Complaint not upheld

Citations:

[2022] UKICO 133645

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.683138

Medicines and Healthcare Products Regulatory Agency (Health) 173197: ICO 5 Oct 2022

The complainant has requested information relating to MHRA’s intention to publish interactive drug analysis profiles (iDAPs) for the COVID-19 vaccines. In particular the complainant asked who the MHRA needs to seek permission from and whether such permission has yet been sought, and, if so, when, or, if not, when it intends to seek it. MHRA explained that the use of the term ‘seek permission’ in the request was incorrect, it explained that decisions of the MHRA are taken by the Secretary of State however it makes relevant bodies such as DHSC aware of when publication will take place. It also explained when publication will take place. The Commissioner’s decision is that MHRA does not hold the information requested under section 1(1)(a) FOIA but breached section 10(1) FOIA as it failed to provide a response within the statutory time for compliance. The Commissioner does not require MHRA to take any remedial steps.
FOI 10: Complaint upheld FOI 1: Complaint not upheld

Citations:

[2022] UKICO 173197

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.683054

Bovill v Goodier: 18 Apr 1866

The distinction in equity is, that where the validity of a patent has not been the subject of any legal proceedings, the patentee must prove its validity at law, before the Court of Equity will protect him ; but having once established its validity, then the Court of Equity will protect any other person until that person proves its invalidity,

Citations:

[1866] EngR 135, (1866) 35 Beav 427, (1866) 55 ER 961

Links:

Commonlii

Jurisdiction:

England and Wales

Intellectual Property, Equity

Updated: 05 December 2022; Ref: scu.280846

Claramoda Ltd v Zoomphase Ltd (T/A Jenny Packham): ComC 13 Nov 2009

The former distribution agent sought to claim under the Regulations. The defendant said that the claim had not been notified as it should, within one year. The agency was for the sale of fashion items. Termination had been informal, stating that it would take place at the end of the season. The defendant argued that the season (Spring/Summer) finished at the end of October, but he defendant said it was still selling the range through January.

Judges:

Simon J

Citations:

[2009] EWHC 2857 (Comm), [2010] 1 All ER (Comm) 830, [2010] ECC 1

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993 17(9)

Jurisdiction:

England and Wales

Citing:

Cited – Mercantile International Group Plc v Chuan Soon Huat Industrial Group Ltd CA 8-Mar-2002
The court was asked whether the claimants were a commercial agent of the defendants under the 1993 regulations.
Held: It is common for agents acting in the sale of financial products, eg many types of insurance policies, to fix its own . .
Cited – Sagal (T/A Bunz UK) v Atelier Bunz Gmbh CA 3-Jul-2009
The court was asked whether the the appellant was a commercial agent of the defendant within the regulations, and so would be entitled to compensation on termination of the agency.
Longmore LJ said: ‘It does not follow that every agent acting . .
Cited – Parks v Esso Petroleum Company Limited CA 23-Jul-1999
The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that . .
Lists of cited by and citing cases may be incomplete.

Agency, European

Updated: 05 December 2022; Ref: scu.379556

Police Service of Northern Ireland (Police and Criminal Justice): ICO 31 Oct 2022

The complainant has requested information about the ballistic history of a weapon used in a specific crime. Police Service Northern Ireland (PSNI) refused to confirm or deny whether it holds the requested information. The Commissioner’s decision is that PSNI is entitled to rely on section 30(3) of FOIA to refuse to confirm or deny that it holds the requested information, and that the balance of the public interest favours maintaining the exemption. However, he finds that PSNI breached section 10(1) of FOIA as it failed to provide its response to the request within the statutory timeframe. The Commissioner does not require PSNI to take any remedial steps.
FOI 10(1): Complaint upheld FOI 30: Complaint not upheld

Citations:

[2022] UKICO 147532

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.683093

Welwyn Hatfield Borough Council (Local Government): ICO 1 Mar 2022

The complainant has requested copies of the minutes of the Town Centre Regeneration Board meetings held by Welwyn Hatfield Borough Council (the council). The council initially withheld the information, citing section 43(2) -commercial interests, and section 36 – effective conduct of affairs, of the FOIA. Following the Commissioner’s intervention, the council confirmed that, given the passage of time, it regarded the public interest to now lie in favour of the release of some of the requested information, and it provided the complainant with a copy of the minutes of the relevant meetings in a redacted format. Following advice from the Commissioner, the council then reconsidered the request under the EIR; however, it maintained its view that the remaining withheld information was exempt from disclosure, now citing regulation 12(5)(e) – confidentiality of commercial or industrial information, regulation 12(4)(e) – internal communications, and regulation 12(5)(f) – interests of the information provider. The Commissioner is satisfied that the council is entitled to rely on regulation 12(5)(e) of the EIR in respect of all the withheld information. However, as the council wrongly handled the request under FOIA, the Commissioner has found there to be a breach of regulation 14 of the EIR. The Commissioner does not require the council to take any steps as a result of this decision notice.
EIR 14: Complaint upheld EIR 12(5)(e): Complaint not upheld

Citations:

[2022] UKICO ic-87369

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.674977

Mariusz Soda v Revenue and Customs (Excise Duty – Assessments for Duty and A Penalty for Importing Cigarettes Through Luton Airport): FTTTx 25 Oct 2022

EXCISE DUTY – assessments for duty and a penalty for importing cigarettes through Luton Airport – HMRC application to strike out duty appeal – application granted – appeal against the penalty dismissed

Citations:

[2022] UKFTT 396 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Customs and Excise

Updated: 05 December 2022; Ref: scu.682693

Attorney General’s Office (Central Government): ICO 1 Nov 2022

The complainant has requested information about the Attorney General’s consent to prosecute in a particular case. The Attorney General’s Office (‘the AGO’) refused the request, citing sections 31 (Law enforcement) and 42 (Legal professional privilege) of FOIA. The Commissioner’s decision is that the AGO was entitled to rely on section 31(1)(c) of FOIA to refuse the request. The Commissioner requires no steps to be taken as a result of this decision.
FOI 31: Complaint not upheld

Citations:

[2022] UKICO 194707

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.683156

Dicconson Group Practice (Health): ICO 18 Jun 2020

The complainant has requested information about complaints from Dicconson Group Practice (DGP), for the years 2009 to 2019. DGP did not release some of the relevant information it holds, it released other information and appeared to advise that it does not hold relevant information for two of the years requested. The Commissioner’s decision is that: DGP’s response to the request breached section 1(1)(a) and 1(1)(b) of the FOIA but it holds no further information falling within the scope of the complainant’s request. DGP’s response breached section 10(1) and section 17(1) as it did not comply with section 1(1) or provide a refusal notice for an element of the request within 20 working days. The Commissioner requires DGP to take the following step to ensure compliance with the legislation: Re-issue to the complainant the ‘Internal Review’ it says it had originally sent to him on 6 October 2019. As well as the two pdf documents, this communication should include the two Excel documents also discussed at paragraph 27 of this notice. Where it is not currently clear, DGP should identify each of the years the complaints information included across the two Excel documents covers.
FOI 17: Complaint upheld FOI 10: Complaint upheld FOI 1: Complaint upheld

Citations:

[2020] UKICO fs50853607

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.653635

Harrington v Harrington: FC 21 Jul 2020

Whether the judgment handed down within the financial remedy proceedings between the parties should be published identifying the parties

Judges:

District Judge Hudd

Citations:

[2020] EWFC 99

Links:

Bailii

Jurisdiction:

England and Wales

Family

Updated: 05 December 2022; Ref: scu.683242

Castellain v Preston: QBD 4 Apr 1882

Judges:

Chitty J

Citations:

(1881-1882) 8 QBD 613, [1882] UKLawRpKQB 60

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Castellain v Preston CA 12-Mar-1883
The court emphasised the amplitude of the insurer’s right of subrogation which gave him ‘the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 05 December 2022; Ref: scu.683595

NHS Commissioning Board (NHS England) (Health) FS50799203: ICO 3 May 2019

The complainant has requested information associated with public information campaigns from NHS England (‘NHSE’). NHSE released some information and has withheld the value of fees paid to particular celebrities under section 43(2) of the FOIA (commercial interests). The Commissioner’s decision is that NHSE is entitled to rely on section 43(2) to withhold the disputed information and the public interest favours maintaining the exemption. The Commissioner does not require NHSE to take any remedial steps.
FOI 43: Complaint not upheld

Citations:

[2019] UKICO fs50799203

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 05 December 2022; Ref: scu.638713

Castellain v Preston: CA 12 Mar 1883

The court emphasised the amplitude of the insurer’s right of subrogation which gave him ‘the advantage of every right of the assured, whether such right consists in contract, fulfilled or unfulfilled, or in remedy for tort capable of being insisted on or already insisted on, or in any other right, whether by way of condition or otherwise, legal or equitable . . The second right vested in the insurer by the doctrine of subrogation is to claim from the assured any benefit conferred on the assured by third parties with the aim of compensating the assured for the loss in respect of which the insurer has indemnified him. The right is usually exercised by an insurer claiming from the assured a sum equivalent to any sum of damages paid to the assured by a third party legally liable for the loss. The right is wider in scope than that, however, and the insurer is entitled to moneys paid to the assured ex gratia to diminish his loss unless intended by the donor to benefit the assured to the exclusion of the insurers.’ The doctrine of subrogation is based on the fact that a contract of insurance is a contract of indemnity, and that the insurer is placed in the shoes of the insured in respect of claims whereby the insured loss is diminished

Judges:

Brett LJ

Citations:

(1883) 11 QBD 380, [1883] UKLawRpKQB 69, (1882-1883) 11 QBD 380

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

Cited – Castellain v Preston QBD 4-Apr-1882
. .

Cited by:

Cited – Caledonian North Sea Ltd v London Bridge Engineering Ltd and Others HL 7-Feb-2002
Substantial personal injury claims had been settled following the Piper Alpha disaster. Where a contractual indemnity had been provided under a contract, and insurance had also been taken out, but the insurance had not been a contractual . .
Cited – Bee v Jenson ComC 21-Dec-2006
The defendant objected to paying the plaintiff the costs of a replacement hire car after the accident for which he was liable. He said that the plaintiff was in any event insured to recover that cost, and the insurance company were subrogated to the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 05 December 2022; Ref: scu.191161

C and Others v A and Another (Disability Discrimination and Practice and Procedure): EAT 22 May 2020

The EAT decided that where there was no evidence that demonstrated that an employee was suffering from a disability at the time the alleged act of discrimination occurred, the ET was entitled to consider evidence of disability more generally and to infer from that evidence that the disability existed at the relevant time. The E.A.T. further decided that when the EJ had to decide a question that was to a large extent a medical question, the E.A.T. should not be swift to overturn such a decision provided it was clear that all evidence relevant to the issue had been placed before the EJ and the EJ had considered the relevant material.

Citations:

[2020] UKEAT 0023 – 20 – 2205

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 December 2022; Ref: scu.661649

T W White and Sons Ltd v White (Practice and Procedure): EAT 26 Mar 2021

There is a mandatory requirement pursuant to rule 72(1) of the Employment Tribunal Rules 2013 for an employment judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party’s response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined for the purposes of rule 72(2).
The employment judge did not err in law by refusing permission to the respondent to call expert evidence. Expert evidence can only be relied upon with the permission of the employment tribunal and should be limited to that reasonably required to resolve the issues.
In the circumstances of this case, the employment judge did not err in refusing to stay orders to prepare for the reconsideration and the remedy hearing, pending determination of the appeal.

Citations:

[2021] UKEAT 0022 – 21 – 2603

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 December 2022; Ref: scu.661707

Graphlon (Trade Mark: Opposition): IPO 23 Oct 2019

Sections 5(1), 5(2) and 5(3) Earlier Trade Marks – Identical marks
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 – Identification of
Sections 5(1), 5(2) and 5(3) Average Customer – Different consumer groups
Procedural Issues – Decisions in other jurisdictions

Citations:

[2019] UKIntelP o63219

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 04 December 2022; Ref: scu.661135

Elliott v Dorset County Council (Disability Discrimination): EAT 9 Apr 2021

The Employment Judge erred in law in the approach adopted to considering whether an admitted impairment had a substantial adverse effect on the ability of the Claimant to carry out day-to-day activities. The term ‘substantial’ is defined by Section 212 EqA 2010 as ‘more than minor or trivial’. If this statutory definition is met, on a consideration of the ordinary meaning of the words, that takes precedence over the Guidance and Code, including the reference to the ‘general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people’. The tribunal has to consider whether the Claimant is affected to a more than minor or trivial extent in carrying out day-to-day activities (which may include work activities) as a result of the impairment in comparison to what the situation would be if the Claimant did not have the impairment.

Citations:

[2021] UKEAT 0197 – 20 – 0904

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Discrimination

Updated: 04 December 2022; Ref: scu.661710

Millennium Cash and Carry Ltd v Revenue and Customs (Alcoholic Liquor Duty – Alcoholic Liquor Wholesaling): FTTTx 25 Jan 2021

ALCOHOLIC LIQUOR DUTY – Part 6A Alcoholic Liquor Duties Act 1979 – Alcoholic Liquor Wholesaling – penalty for contravention of s88F (wholesale purchase from unapproved seller) – meaning of ‘sold wholesale’ – ‘incidental sale’ exception – one-off purchase of 840 bottles of gin on special offer from authorised retailer – was it proved that the sale was not ‘incidental’ to seller’s authorised retail sales? – held: no – contravention of s88F not proved – appeal allowed

Citations:

[2021] UKFTT 16 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Customs and Excise

Updated: 04 December 2022; Ref: scu.661743

Kennedy v Revenue and Customs (Capital Gains Tax – Entrepreneurs Relief): FTTTx 5 Jan 2021

CAPITAL GAINS TAX – entrepreneurs’ relief – section 169I TCGA 1992 – whether Condition A satisfied – whether throughout the period of one year ending with the disposals the appellant was an employee of the company – existence of an employment – whether the employment was terminated prior to disposal – appeal dismissed

Citations:

[2021] UKFTT 3 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Capital Gains Tax

Updated: 04 December 2022; Ref: scu.661741

Bosco (Trade Mark: Opposition): IPO 29 Oct 2019

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) Dilution Cases – Reputation

Citations:

[2019] UKIntelP o65719

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property

Updated: 04 December 2022; Ref: scu.661120

Levy v 34 and Co Ltd (Practice and Prcoedure, Contract of Employment and Unlawful Deduction Wages): EAT 12 Feb 2021

An Employment Tribunal did not err by not considering an uplift under section 38 of the Employment Act 2002 when making an award for an unlawful deduction from wages, where the Respondent did not have notice of the application and where the facts, on further investigation, would not have justified the uplift.

Citations:

[2021] UKEAT 0033 – 20 – 1202

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 04 December 2022; Ref: scu.661696