Latest Cases

Claim form – Service. The defendant applied to strike out a claim concerning a procurement challenge, on the ground that the claim form had not been served within seven days of issue, as prescribed by reg 47F(1) of the Public Contracts Regulations 2006, SI 2006/5. The Technology and Construction Court, in refusing the application, held, inter alia, that the claimant had served the claim form within seven days of starting proceedings, but had not served it in accordance with the rules of court, in that it was unsealed and without the claim number. However, in the circumstances, it was fair and proportionate to cure that irregularity so that the proceedings could be regarded as having been properly brought. 

Sentencing – Competency. High Court of Justiciary: In an appeal against sentence in which the principal point taken was whether it was within the sentencing judge's competence or jurisdiction to make an order under s 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of a sentence imposed by a court in England and Wales, the two judge court concluded that the issues called for consideration by a larger bench but set out what appeared to it to be some relevant considerations affecting the competency point raised by the appeal. 

Criminal evidence – Rape – Consent – Sufficiency of evidence. High Court of Justiciary: Refusing an appeal against a conviction for rape, the court rejected a contention that the trial judge had erred in failing to sustain a no case to answer submission because there was insufficient evidence, both of lack of consent and of lack of reasonable belief of consent, holding that proof of the complainer's distress was capable of corroborating her testimony of testimony of lack of consent and was available as proof that the appellant had no reasonable belief that she was consenting. 

Practice – Pre-trial or post-judgment relief. The claimant was the wife of the deceased who had died from mesothelioma. The defendant had been a fourth former employer of the deceased. The claimant brought a claim against the defendant in respect of the deceased's death. The defendant resisted the claim on the grounds that it was an abuse of process and/or that it was past its limitation date. The Queen's Bench Division held that it was not an abuse of process and although it was past its limitation date, s 33 of the Limitation Act 1980 applied and the claim against the defendant was to proceed. 

Solemn procedure – Sheriff's charge – Assault – Provocation. High Court of Justiciary: Allowing an appeal against conviction by an appellant who was convicted of assault to severe injury, the court, after holding that the lack of directions about provocation had resulted in a miscarriage of justice, substituted a conviction in identical terms but with the rider 'under provocation' and substituted for the extended sentence of 8 years imposed, a custodial sentence of 3 years, together with a one‑year supervised release order. 

Landlord and tenant – Forfeiture of lease. The district judge had made a declaration that a head lease held by the defendants be forfeited following the lapse of a stay that had been granted in respect of earlier possession proceedings. The defendants' appeal was allowed by the Court of Appeal, Civil Division. It held that that judge had made a number of errors in his judgment and, in the circumstances, the defendants breaches of the covenants in the head lease had been remedied so it would be unjust and disproportionate to deprive them of their property. However, the defendants were ordered to pay certain costs in respect of the premises and head lease. 

Family proceedings – Orders in family proceedings. Care proceedings were commenced in respect of a child, JC. The issue at trial was as to the level of the risk posed to the mother and JC by the father and whether such risk could be managed. The judge held that the risk could not be safely managed and made care and placement orders in respect of JC. The Court of Appeal, Civil Division, in dismissing the mother and father's appeal, held that the judge had had all necessary information with which to reach the conclusions she had. 

Adoption – Practice. An application had been made by a British citizen to adopt her cousin, a Pakistan national. The application was made before his eighteenth birthday, but the present proceedings took place after that birthday. The Family Court held that the court would rarely make an adoption order when it would confer no benefits upon the child during its childhood but gave a right of abode for the rest of its life. That was not inconsistent with s 1(2) of the Adoption and Children Act 2002. In the present case, where the only benefit to adoption would be the grant of citizenship, the application was dismissed. 

Conflict of laws – Jurisdiction. The claimant sought declarations of non-liability in respect of claims which the first defendant, Petromena, had brought against it in Norway. Petromena appealed against an order refusing a declaration that the English court had no jurisdiction over the claim. The Court of Appeal, Civil Division, upheld the order on the ground that the English court had jurisdiction under art 24 of the Lugano Convention, by reason of Petromena's appearance by filing a second acknowledgment of service. 

European Union – Value added tax. The Court of Justice of the European Union gave a preliminary ruling, deciding, amongst other things, that art 168 of Council Directive (EC) 2006/112 (on the common system of value added tax), as amended, had to be interpreted as meaning that, where the exemption from VAT provided for by national law was incompatible with the VAT Directive, art 168 did not permit a taxable person both to benefit from that exemption and to exercise the right to deduct.