Latest Cases

European Union – Social security. The Court of Justice of the European Union gave a preliminary ruling, deciding that art 13(2)(a) of Regulation No 1408/71, read in conjunction with art 13(1) of that regulation, should be interpreted, in circumstances such as those in the main proceedings, as not precluding a migrant worker, who was subject to the legislation of the state of employment, from receiving, by virtue of national legislation of the member state of residence, an old-age pension and family benefits from the latter state. 

Consumer credit – Agreement. The claimant brought mortgage possession proceedings against the defendant, pursuant to the terms of a written loan facility agreement. A money judgment was given for the claimant. The defendant appealed, contending that the judge had erred in law in enforcing the contractual liability by a money judgment, because the facility was a regulated agreement under s 8(3) of the Consumer Credit Act 1974 and, since its form and content were not as prescribed by the Act and regulations made thereunder, it could only be enforced by an enforcement order. The Court of Appeal, Civil Division, allowed the appeal. It rejected the claimant's submission that the defendant was estopped by her declaration in the facility from denying that the agreement had been unregulated and, in the circumstances, there was no injustice in permitting the defendant to take that point of law for the first time on appeal. 

Practice – Summary judgment. The claimants brought a claim for damages in defamation against the defendant following a broadcast on television. The defendant defended the claim. The claimant applied to either strike out the defence or for summary judgment. The Queen's Bench Division found that the defence was incoherent and failed to disclose any reasonable basis for defending the claim. Accordingly, the summary judgment application was allowed. 

Equity – Breach of confidence. The claimant sought summary judgment in his action for breach of confidence and misuse of private information, concerning the disclosure of information of a sexual nature. The Queen's Bench Division, in granting summary judgment, held that the defendant had no real prospect of successfully defending the claim on its merits, or showing that a court would withhold the grant of a permanent injunction or other compelling reason why the claim should be resolved at trial. It further granted the defendant permission to amend his application notice so as to seek permission to bring an application to commit the claimant to prison for contempt of court. 

Practice – Pre-trial or post-judgment relief. CPR 45 provided for a fixed percentage by which the amount of a legal representative's fee could be increased in accordance with a conditional fee agreement ('CFA') which provided for a success fee. Section III dealt with road traffic accident claims. The defendant appealed from an order of which held that for the purpose of CPR 45.16 and 45.17 the trial of the action had commenced and accordingly the claimant was entitled to recover a success fee of 100% on base costs. The Queen's Bench Division, in allowing the appeal, held that the master had erred in treating the start of a hearing related to the liability issue as the start of the contested hearing of that issue. 

Insolvency – Cross-Border insolvency. The proceedings concerned a Japanese company, which had been engaged in insolvency proceedings in Japan for the purpose of effecting a reorganisation. Those proceedings had been recognised in England as the foreign main proceedings in respect of the company, but they had later come to an end. The company and its director applied, under art 17(4) of Sch 1 to the Cross Border Insolvency Regulations 2006 (CBIR), for the continued recognition of the director's status as foreign representative of the company, and, under art 21(2) of Sch 1 to the CBIR, for payment to the company of the funds held in the English court, pursuant to orders made in the Admiralty Court in England, following the sale of the company's vessel. An interested party had filed a request for a caution against the release of the proceeds in the sum of US$3.85m. The Companies Court, among other things, rejected the applicants' submission that the main proceedings had only partly ceased to exist because the implementation of the reorganisation plan was ongoing. The fact that the plan had not been fully implemented did not serve to render the Japanese proceedings ongoing. Further, leaving the funds in court in England seemed likely to tolerate, if not encourage, delay, which was itself a hallmark of injustice. 

Judgment – Default judgment. The claimant brought a professional negligence claim against the defendant firm of accountants. Judgment in default was entered in favour of the claimant and the defendant's appeal against that judgment was dismissed. The Chancery Division, allowing the defendant's appeal, held that, whilst it had been open to the district judge to find that the application to set aside the judgment had not been made promptly, the lack of promptness in all the circumstances of the case would not make it just to dismiss the application to set aside the judgment in default. There had been nothing in the district judge's judgment to suggest that he had evaluated all the circumstances of the case, including those specifically mentioned in CPR 3.9, and his evaluation of the circumstances mentioned in the judgment had been flawed. 

Divorce – Ancillary relief. The Court of Appeal, Civil Division, dismissed an appeal by the trustees of a post-nuptial settlement against an order varying that settlement by way of ancillary relief following a divorce. 

Limitation of action – Negligence. The claimant had retained the defendant firm of solicitors and barrister in respect of a clinical negligence claim. They advised her that she did not have a viable claim. Consequently, she did not pursue the action. She was subsequently advised that her claim had been viable and so she issued proceedings alleging professional negligence. The claim was dismissed on grounds of liability and as being statute barred. The Court of Appeal, Civil Division, dismissed the appeal, but differed from the judge in finding that she had had constructive, not actual, knowledge that she had had a viable claim against the lawyers. 

Mental health – Court of Protection. The parents of MN, who lacked capacity, appealed against the judge's decision that the Court of Protection should not embark upon a best-interests analysis of a hypothetical possibility. The Court of Appeal, Civil Division, in dismissing the appeal, gave reasons why the Court of Protection should not embark upon a best-interests analysis of a hypothetical possibility. It then concluded that the judge had been right in all respects and essentially for the reasons she had given. Further, she had correctly found that a human rights claim had to be clearly identified and properly pleaded.