Latest Cases

Environmental protection – Road and adjacent land – Litter abatement order. Sheriff Court: In an action in which the pursuer asked the court to make a litter abatement order in relation to an 6.8-mile stretch of the A96 dual carriageway in Aberdeenshire, the court was not satisfied that the pursuer had proved his case with regard to the area to which his complaint related, namely the entire 6.8-mile stretch of road and on that basis it refused his crave for a litter abatement order: and in any event the defenders had proved that it was not practicable for them to comply with their duties under s 89(1) and (2) of the Environmental Protection Act 1990 with regard to the entirety of that stretch of road at all times.

Financial Conduct Authority – Decision Notice. On the evidence, there was no reason to cast any doubt on the reasonableness of the Financial Conduct Authority's (the FCA) decision to refuse the applicant company's application for to carry on the consumer credit regulated activities of debt adjusting and debt counselling. Bearing in mind, among other things, the applicant's approach during the course of the application and thereafter, the FCA had been fully justified in concluding that it had been unable to ensure that the applicant had satisfied the Threshold Conditions set out in Sch 6 to the Financial Services and Markets Act 2000. Consequently, the Upper Tribunal (Tax and Chancery Chamber) dismissed the applicant's reference.

Family proceedings – Orders in family proceedings. The father's challenge to 12 findings of fact, which had been made in connection with cross-applications for child arrangements and specific issue orders relating to his children, was unsuccessful. The Family Division held that the recorder had conducted an extremely thorough and detailed evaluation of the evidence, including an allegation of the sexual abuse of one of the children (S), and he had also identified the father's case that S had, in effect, been sent into interviews with a script of lies in order to discredit him. The court held that there was no evidence that the recorder had failed to take account of material evidence or that he had given undue weight to an area of evidence.

European Union – Freedom of movement. The provisions of the Agreement between the European Community and its Member States and the Swiss Confederation on the free movement of persons should be interpreted as precluding a tax regime of a member state which, in a situation where a natural person who was a national of a member state and who pursued an economic activity in the territory of the Swiss Confederation transferred his domicile from the member state whose tax regime was at issue to Switzerland, provided for the collection, at the time of that transfer, of the tax payable on unrealised capital gains with respect to shares owned by that national, whereas, if domicile was retained in that member state, the collection of the tax took place only at the time when the capital gains were realised, namely, on a disposal of the shares concerned. The Court of Justice of the European Union so held in a preliminary ruling in proceedings between the applicant and the German tax authority.

Environment – Waste. The screening of debris from sludge prior to storage was not an activity comprised within the exemptions set out in para 3 of s 2 of Ch 5 of Sch 3 to the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154. Accordingly, the Court of Appeal, Civil Division, dismissed the claimant company's application for judicial review of the defendant Environment Agency's guidance, stating that screening of sewage sludge without a suitable permit was an offence.

Building contract – Adjudication. An employer who was subject to an immediate obligation to discharge the order of an adjudicator based on the failure of the employer to serve either a payment notice or a pay less notice had to discharge that immediate obligation before he would be entitled to rely on a subsequent decision in a true value adjudication. Accordingly, the Technology and Construction Court disposed of the defendant employers' application to rely on a true value adjudication by way of set off or counterclaim and granted summary judgment for the claimant contractor to enforce an adjudicator's award in the sum of £106,160.84 plus interest.

Extradition – Fugitive. The appellant had been deliberately absent from his trial, he had waived his right to attend or had chosen not to attend whenever it might be and whatever the consequences might be, and there was no breach of art 6 of the European Convention on Human Rights in his extradition. Accordingly, the Administrative Court dismissed his appeal against orders for his extradition to Poland to serve all but one day of eight months' imprisonment for two offences of assault.

Mental health – Capacity. A woman in her 30s with learning disabilities was found to lack capacity, within the meaning of the Mental Capacity Act 2005, in a number of respects, including in relation to her ability to consent to sexual relations, and concerning her decisions to use social media for the purposes of developing or maintaining connections with others. The Court of Protection, in so ruling, made, or proposed to make, various declarations and interim declarations in line with its findings.

Extradition – Private and family life. The judge's appraisal of the significance of the delay had been wrong and further evidence showed that the impact on the appellant's children would be significantly more severe than he had allowed for. Accordingly, the Administrative Court allowed the appellant's appeal against orders for his extradition to Poland to serve activated suspended sentences of one year and six months for a commercial burglary, and two years' imprisonment for four further commercial burglaries.

Costs – Discretion. It would be incongruous if a court, tribunal or the individual holder of a judicial post was potentially liable for the costs of an application for judicial review of a refusal of permission to appeal, but not for the costs of any other challenge to his decisions. The Court of Appeal, Civil Division, in dismissing the parties' appeal, further held that the judge's order, that the costs of the claimant's Cart claim be treated as costs of the appeal, had been principled and a just resolution of the costs issue.