Latest Cases

European Union – Employment. The Court of Justice of the European Union ruled that art 7(1) of Directive (EC) 2003/88 of the European Parliament and of the Council (concerning certain aspects of the organisation of working time) should be interpreted as precluding national legislation and practice under which a worker whose remuneration consisted of a basic salary and commission, the amount of which was fixed by reference to the contracts entered into by the employer as a result of sales achieved by that worker, was entitled, in respect of his paid annual leave, to remuneration composed exclusively of his basic salary. 

Pleading – Amendment. The defendant company sought to amend its CPR Pt 20 breach of contract claim against the third party company to include a negligence claim. The Queen's Bench Division, in allowing the application, held that, although the claim was statute-barred, the new claim framed in negligence arose out of the substantially the same facts. The factors against the exercise of discretion to amend were outweighed and the defendant would be permitted to amend, pursuant to CPR 17.4(2). 

Solicitor – Disciplinary proceedings. The appellant in-house solicitor for a newspaper appealed against the finding of the Solicitors' Disciplinary Tribunal (the SDT) that he was guilty of failing to act with integrity and knowingly allowing the judge to be misled in the conduct of litigation. The Divisional Court, in allowing the appeal in part, held that the judge had been misled. The SDT, having disavowed making any finding of dishonesty, could not properly proceed to make a finding that the appellant had knowingly allowed the judge to be misled. However, it was inevitable that the SDT would have found him guilty on the basis that he had recklessly allowed the judge to be misled. 

Marriage – Foreign marriage. The Court of Appeal, Civil Division, allowed a wife's appeal against a declaration that her marriage by way of Nikah in Pakistan had been valid. On the new evidence presented, the decree absolute that had purported to end her previous marriage had been void as issued less than six weeks after the decree nisi. In any event, the amended date of decree absolute meant that the marriage had not been dissolved for the three month period required by Sharia law before a woman could re-marry. The matter would be remitted to consider whether the fact that her previous marriage had been a nullity due to the husband's bigamy had any impact upon the validity of the parties' marriage. 

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. 

Immigration – Detention. The claimant immigration detention charity issued judicial review proceedings, challenging the lawfulness of the defendant Secretary of State's policy and practice in the operation of the detained fast track (DFT) for the detention of some asylum seekers while their asylum claims were determined. The Administrative Court held that the various shortcomings in the DFT process required the early instruction of lawyers absent from the process. That was sufficiently significant that the DFT carried too high a risk of unfair determinations for those who might be vulnerable applicants. 

Criminal Law – Importation of prohibited goods. The Court of Appeal, Criminal Division, held that a sentence of six years' imprisonment for conspiracy to evade a prohibition on the importation of a controlled drug of Class A, contrary to s 1(1) of the Criminal Law Act 1977, had been unduly lenient. Despite the offender's limited involvement in the conspiracy, the judge ought to have scaled up the sentence to reflect the massive quantities involved within the operation. The offender's sentence would be quashed and substituted for a sentence of eleven years' imprisonment. 

Solicitor – Disciplinary proceedings. The appellant in-house solicitor for a newspaper appealed against the finding of the Solicitors' Disciplinary Tribunal (the SDT) that he was guilty of failing to act with integrity and knowingly allowing the judge to be misled in the conduct of litigation. The Divisional Court, in allowing the appeal in part, held that the judge had been misled. The SDT, having disavowed making any finding of dishonesty, could not properly proceed to make a finding that the appellant had knowingly allowed the judge to be misled. However, it was inevitable that the SDT would have found him guilty on the basis that he had recklessly allowed the judge to be misled. 

Company – Director. The claimant Secretary of State issued proceedings, relying on certain transactions as demonstrating that the defendant's conduct as a director of a company made him unfit to be concerned in the management of a company, within s 6 of the Company Directors Disqualification Act 1986. The Chancery Division held that, due to the defendant's untrue representations, he was unfit to be concerned in the management of a company and would be disqualified for a period of seven years. 

Medical practitioner – Professional misconduct. The appellant registered nurse appealed against the decision of a panel of the Conduct and Competence Committee of the respondent Nursing and Midwifery Council (the panel), finding that his fitness to practice was impaired by reason of misconduct and suspending his registration for 12 months. The Administrative Court, in allowing the appeal, held that the panel had failed to conduct a careful balancing exercise in admitting the witness statements of absent witnesses and had failed to consider their credibility or reliability. Further, the findings in respect of a third witness could not stand and the decision would be quashed with no direction for a rehearing.