Latest Cases

Immigration – Entry clearance – Judicial review – Human rights – Time bar. Court of Session: Refusing a judicial review petition in which a husband, wife and two sons sought declarator that the Home Secretary infringed their rights under art 8 of the European Convention on Human Rights by refusing to grant the wife entry clearance to settle in the UK as the spouse of a British citizen in the period between 15 February and 14 May 2012, and also sought damages by way of just satisfaction, the court held that the petition was time-barred and indicated that it would have refused it in any event. 

Practice – Hearing. The Court of Appeal, Civil Division, gave guidance on the circumstances in which the First-tier Tribunal (General Regulatory Chamber) could lawfully adopt a closed material procedure in which a party and his legal representatives were excluded from the hearing or part of it when it was hearing an appeal against a decision of the Information Commissioner. It held that the features most comprehensively spelt out in British Union for the Abolition of Vivisection v Information Commissioner and another ([2011] UKFTT EA_2010_0064 (GRC)) fully justified the approach taken in the present case, in which the maximum candour possible had been achieved. 

Unfair Dismissal – Constructive Dismissal. The employment tribunal had rejected the employee's claim for unfair constructive dismissal in circumstances where he had given seven months' notice of termination following the alleged breach of contract. The employee's appeal to the Employment Appeal Tribunal raised a short question of law in relation to s 95(1)(c) of the Employment Rights Act of 1996 as to whether the common law concept of affirmation applied in circumstances where an employee resigned giving notice exceeding the contractual minimum period of notice. 

Personal injury – Liability. Court of Session: In an action in which the pursuer sought damages for an injury sustained when she fell onto steps after a seagull swooped at her outside a building owned, occupied and operated by defenders, the court held that the pursuer had failed to prove on the balance of probabilities that the gull which attacked her came from the defenders' building, and in any event her case under the Occupiers' Liability (Scotland) Act 1960 fell on the first hurdle of reasonable foreseeability and her statutory cases under regs 5 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 also failed. 

Unfair Dismissal – Right not to be unfairly dismissed. The Employment Appeal Tribunal (EAT) allowed the employee's appeal against a decision of the employment tribunal that the employer's letter terminating the employee's employment on the basis that he had reached retirement age had complied with the relevant provisions of the Employment Equality (Age) Regulations 2006, SI 2006/2408. The EAT decided that the letter had not complied with those provisions and that the form for request of extension of employment beyond retirement age which had accompanied that letter had also failed to comply with those provisions. 

Indemnity – Negligence. Following a flood at a recently constructed block of flats, the building owner commenced proceedings against the main contractor which led to a series of claims against the chain of sub-contractors. The judge found that the mechanical sub-sub-sub-contractor (Robson) had been liable for two defects in workmanship which had been the principal cause of the flood with the result that the Robson was liable under the indemnity clause contained in the agreement by which it had been engaged by HSE. The Court of Appeal, Civil Division, upheld that decision and found that HSE's failure to inspect the work properly, even when the breaches should have been detected upon a reasonable inspection of the work, had not shut out its claim under the indemnity. It could not have been presumed that the parties had intended to confine the indemnity clause only to workmanship breaches which had been invisible upon reasonable inspection. 

Practice – Pre-trial or post-judgment relief. The claimant pharmaceutical company brought a claim against the defendant laboratories in relation to the repackaging of imported pharmaceutical products from abroad without the relevant license. The defendant put in a defence regarding the involvement of a sister company. The Queen's Bench Division held that on the evidence it was arguable that some of the pharmaceutical products were invoiced and supplied to the sister company, which were then delivered by the claimant to the defendant laboratories for repackaging. The court gave the defendant conditional leave to defend. 

Financial services – Financial Conduct Authority (FCA). The Financial Conduct Authority (FCA) issued a Decision Notice against the applicant director of a mortgage and insurance company stating that it had decided to: (a) withdraw his approval to perform controlled functions in relation to the company; and (b) make a prohibition order against him. The applicant contested the FCA's decision and referred the Decision Notice to the Upper Tribunal (Tax and Chancery Chamber). The tribunal dismissed the reference, deciding that although the applicant had not been deliberately dishonest, he had lacked integrity in his business dealings and his dealings with the FCA. 

Injunction – Interim injunction. The claimant was the freehold owner of a piece of empty land (the adjoining plot) immediately adjacent to a property in Holland Park, which was owned by the defendant management company. The defendant sought an interim injunction to prevent the claimant from applying for planning permission to build a house which she proposed to build on the adjoining plot. The Chancery Division, refusing the application, held that that difference in the risk of unquantifiable damage pointed firmly in favour of not granting the injunction, in particular, having regard to various undertakings which the claimant had offered. 

Reparation – Negligence – Duty of care. Court of Session: In an action in which the pursuers sought damages in respect of loss caused by fire in a farmhouse and outbuildings they owned, averring that the fire damage was caused as a result of fault and negligence of the defenders, firefighters having concluded that they had extinguished a fire at the farm but the fire having re-ignited after their departure, the court concluded that the pursuers had pled a relevant case which entitled them to proof before answer.