Latest Cases

European Union – Freedom of movement. The Court of Justice of the European Union ruled that legislation of a member state which did not permit a non-resident taxpayer who had received in that state commercial income generated by shares in a business which had been transferred to him by a relative in the course of a gift by way of anticipated succession to deduct from that income the annuities which he had paid to that relative in consideration for that gift, whereas that legislation allowed a resident taxpayer to make such a deduction, infringed the principle of free movement of capital, contrary to art 63 of the Treaty on the Functioning of the European Union. 

Criminal evidence – Appeal – Fresh evidence. High Court of Justiciary: Allowing an appeal by an appellant who was convicted, inter alia, of murder by smothering and attempting to defeat the ends of justice, the court held that potentially significant fresh evidence was available from a neuropathologist, offering for the first time moderate head injury as a positive contributing cause of the deceased's death—ie as direct alternative to smothering; that a reasonable explanation of why that evidence was not heard at the trial had been made out; and that had the new evidence been available at the trial there would have been a real possibility of a different verdict being returned. 

European Union – Trade marks. The General Court of the European Union dismissed the action brought by Pangyrus Ltd (Pangyrus), established in York (United Kingdom), for annulment of the decision of the Fourth Board of Appeal for the Office for Harmonisation in the Internal Market (Trade Marks and Designs) concerning opposition proceedings between RSVP Design Ltd, established in Brookfield (United Kingdom) and Pangyrus, regarding the application by Pangyrus for registration of the word sign 'COLOURBLIND' as a Community trade mark. 

Practice – Striking out. The claimant issued proceedings against the defendants for damages for misrepresentation and breach of contract. The defendants sought to strike out the claims against the first defendant and security for the costs of both defendants. The Queen's Bench Division, in allowing the application, held that the claimant's claims were barred, including by limitation. An order for security for costs would be made, but its amount would be moderated. 

Trade mark – Infringement. Following a judgment in the main proceedings, in which it had been held that a claim for infringement of the claimant's trade mark had been made out with regard to the defendants' acts within the United Kingdom, the Chancery Division held that an injunction would be granted in general form to restring the infringement, and that the remedies would be confined to the UK and would not extend throughout the European Union. 

Town and country planning – Planning authority. The claimant developer applied, under s 113 of the Planning and Compulsory Purchase Act 2004, to quash and, alternatively, remit to the defendant local planning authority, parts of its development plan. The Planning Court, in dismissing the application, held that the inspector had been entitled, on the evidence, to find that the full housing need of the authority had been objectively assessed in accordance with the National Planning Policy Framework and the National Planning Policy Guidance. Further, the authority and the inspector had considered market signals and other market indicators, as they had been required to do by national guidance. 

Family proceedings – Orders in family proceedings. The proceedings concerned an eight month old baby, A. The local authority contended that A should be placed in the care of her maternal grandmother, who was already looking after her older sister, and the children's guardian contended that she should be adopted. The Family Court held that the evidence in the present case did not achieve the level of cogency that would be required to justify the ultimate conclusion that there was no alternative to adoption. Having taken all factors into account, the better outcome for A was to be placed with her grandmother. 

European Union – Immigration. The Court of Justice of the European Union ruled, amongst other things, that art 9(2)(b) and (c) of Directive (EC) 2004/83 should be interpreted as meaning that, in circumstances such as those in the main proceedings, it did not appear that the measures incurred by a soldier because of his refusal to perform military service, such as the imposition of a prison sentence or discharge from the army, could be considered, having regard to the legitimate exercise, by that state, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of those provisions. It was, however, for the national authorities to ascertain whether that was indeed the case. 

Gender – Gender recognition. The claimant post-operative male-to-female transsexual applied for an order that s 3(3) of the Gender Recognition Act 2004, containing the evidential requirements for a gender recognition certificate, was incompatible with the European Convention on Human Rights. The Administrative Court, in dismissing the application, held that there was no incompatibility with art 8 of the Convention, as the provision of the details of the treatment required by s 3(3) of the Act was necessary and proportionate to the legitimate aim. Further, there was no discrimination against the claimant, under art 14 of the Convention, on the grounds of sex or 'other status', as a post-surgery transsexual person. 

Immigration – Asylum/humanitarian protection – Fresh claim. Court of Session: In judicial review proceedings by a failed Pakistani asylum seeker, who challenged a decision that his further submissions did not amount to fresh claim, the court pronounced an order reducing the decision letter complained of, holding that the respondent had failed to satisfy the requirement of anxious scrutiny and it had not been demonstrated on her behalf that the petitioner would inevitably fail before any further adjudicator.