Latest Cases

European Union – Citizenship. The concept of a 'direct descendant' of a citizen of the EU referred to in art 2(2)(c) of Directive (EC) 2004/38, amending Regulation (EEC) No 1612/68 and repealing certain other Directives, had to be interpreted as not including a child who had been placed in the permanent legal guardianship of a citizen of the Union under the Algerian 'kafala' system, because that placement did not create any parent-child relationship between them. However, it was for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to art 3(2)(a) of that directive, read in the light of arts 7 and 24(2) of the Charter of Fundamental Rights of the European Union. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the refusal of the Entry Clearance Officer, UK Visa Section, to grant the applicant child entry clearance for the territory of the UK as an adopted child of a national of the European Economic Area.

European Union – Public procurement. Article 10(h) of Directive (EU) 2014/24 should be interpreted as meaning that the exclusion from the application of the public procurement rules that it laid down, covered the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic, covered by CPV code 75252000‑7 (rescue services) and transport by qualified ambulance covered by CPV code 85143000‑3 (ambulance services), provided that, as regards transport by qualified ambulance, it was in fact undertaken by personnel properly trained in first aid and, second, it was provided to a patient whose state of health was at risk of deterioration during that transport. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings concerning the direct award of a contract for emergency services in the respondent state.

Sale of land – Repudiation of contract. The first appellant as vendor had been under an express obligation to convey eight lots to the defendant, with good marketable title and, if that had required planning permission for sub-division, he had needed to obtain it so as to be able to perform his primary obligation under the agreement for sale. The Privy Council, in dismissing the appellants' appeal, further held that the first appellant had committed a repudiatory breach of the contract by transferring the lots to his sister and the respondent had been entitled to substantial damages.

Employment – Discrimination. The Employment Appeal Tribunal (the EAT) had erred in, among other things, holding that the Employment Tribunal (the ET) had engaged in an unjustified leap of reasoning in finding that the failure by the respondent NHS foundation Trust to follow its grievance procedure had amounted to less favourable treatment for the purpose of s 13 of the Equality Act 2010. Accordingly, the Court of Appeal, Civil Division, allowed the appellant general surgeon's appeal against the decision of the EAT and restored the order of the ET, thereby allowing his claims for direct race discrimination, victimisation and unfair dismissal.

Police – Complaint against police. The proper discharge of the statutory functions which the respondent Police Service Commission had had required it to make further inquiries into the complaints it had received against a superintendent before recommending him for promotion to the rank of senior superintendent. Accordingly, the Privy Council humbly advised Her Majesty to allow the appellant human rights organisation's appeal against the rejection of its application for judicial review of the decision to recommend the officer for promotion.

Easement – Water. The claimants' action against the Environment Agency for interference with their quasi-easements over an artificial watercourse was dismissed. The Upper Tribunal (Lands Chamber) held that although the basic principle was that there was no natural right to water in an artificial watercourse, there were, however, various cases in which riparian rights had been held to exist in respect of an artificial channel, such as that at issue in the present proceedings. However, on the evidence, there had been no interference with the claimants quasi-easements and accordingly, their claim for compensation failed.

European Union – Consumer protection. Articles 6 and 7 of Council Directive (EEC) 93/13 should be interpreted, first, as precluding an accelerated repayment clause of a mortgage loan contract that had been found to be unfair from being maintained in part, with the elements which made it unfair removed, where the removal of those elements would be tantamount to revising the content of that clause by altering its substance, and, second, as not precluding the national court from compensating for the invalidity of such an unfair term by replacing that term with the new wording of the legislative provision on which it had been based, subject to certain conditions. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the conclusions to be drawn from the finding that an accelerated repayment clause set out in a loan agreement secured by a mortgage concluded between two parties was unfair.

Negligence – Clinical negligence action. The claimant's claim against the defendant GP, alleging clinical negligence concerning a vasectomy, which had resulted in the claimant suffering from chronic scrotal pain, was dismissed. The Queen's Bench Division held that, on the balance of probabilities, the claimant had been adequately informed of a small risk of chronic pain, and of the range of severity and possible effect on lifestyle if it materialised. Accordingly, he had given informed consent for the procedure.

Practice – Pre-trial or post-judgment relief. The claimants' application for summary judgment succeeded, in a claim concerning alleged breaches of trust in a project to purchase property. The Commercial Court held that the first defendant company had no real prospect of successfully defending the claim against it. There was no other reason why the claim for breach of trust should be permitted to go to trial.

Sentence – Fine. The correct categorisation for the likelihood of level A harm arising from outbreaks of legionella in and amongst the defendant company's employees and local population around its place of business in a densely populated urban area was 'medium', and the judge's categorisation of 'high' could not be sustained in the light of the statistical evidence. Accordingly, the fine for those counts would be reduced from £800,000 to £380,000, which together with a fine of £800,000 relating to the explosion in a flocking machine, did not offend against the principle of totality.