Insolvency – Petition. There was no trace of any retrospectivity in the provisions relating to applications for permission under Extended Civil Restraint Orders (ECRO) The Chancery Division held, relying on previous case law, that an application made without permission under an ECRO could not be validated retrospectively, so that for the purposes of s 267(2)(d) of the Insolvency Act 1986 there remained an outstanding application.
Criminal law – Trial. An individual adjudged unfit to be tried was not competent to appeal in person and could not be invited to waive privilege, the standard form NG applicable to all proposed appeals against conviction or sentence was not apposite in all respects and legal costs of an appeal should be paid out of central funds. The Court of Appeal, Criminal Division, further held that there were no available substantive grounds of appeal against the finding that the unfit to be tried defendant had committed the acts in respect of two offences of meeting a child following sexual grooming which were realistically arguable.
Company – Shareholder. The claimant shareholders had been entitled to a declaration that resolutions that they had passed at a general meeting convened to consider those resolutions, which had been passed after the chairman had announced that the resolutions would not be considered and the meeting closed, were effective. The Chancery Division so determined holding, amongst other things, that whilst the board had been entitled to refuse to allow a meeting to be convened if a particular resolution was not intended to be moved, or if it might not properly be moved, once a general meeting had been convened to consider the resolutions, the only people who could then consider the proposed resolutions included in the notice convening the meeting were the members of the company.
European Union – Copyright. Articles 2(a) and 3(1) of Directive (EC) 2001/29 should be interpreted as constituting measures of full harmonisation of the scope of the exceptions or limitations which they contained. Article 5(3)(c), second case, and (d) of that Directive should be interpreted as not constituting measures of full harmonisation of the scope of the relevant exceptions or limitations. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings concerning publication by the applicant media company of certain documents 'classified for restricted access' drawn up by the German government.
Family proceedings – Costs. FPR 28 did not prohibit the making of a retrospective order where no order had been made and whether a court would make such an order depended upon the circumstances of the case, and where costs had not been mentioned in the original order, an application would necessarily be considered by the court against the backdrop of CPR 44.10(1)(a) that, as a general rule, the party seeking the order for costs was not entitled to an order. However, the Court of Appeal, Civil Division, held that the costs figure awarded by the judge had been unreasonable in amount pursuant to CPR 44.4(1)(b)(ii) and the global figure would accordingly be reduced.
Criminal law – Assault. In 'potting' cases – a prisoner either throwing at or smearing a prison officer with urine, faeces or both – it was for the judge to rule as a matter of law whether the substance, in the quantity and manner in which it was shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome, and if so, it was for the jury whether it was satisfied that it had been a noxious thing. The Court of Appeal, Criminal Division, also gave guidance as to the appropriate level of sentencing in 'potting' cases.
Loan – loan agreement. The claimants had made out a compelling case for the grant of specific performance of a loan agreement by the execution of a registrable second charge over a property in their claim against the defendants. The Chancery Division further granted the claimants an injunction, and ordered the provision of information about development works and the taking of accounts of the net profit.
Family – Financial remedies. The terms of r 9.17 of the Family Procedure Rules 2010, SI 2010/2955, which stated that a judge hearing an in-court family dispute resolution appointment (the FDR) 'must have no further involvement' was a strict rule to be obeyed by judges and could not be waived even in circumstances where both or all parties had agreed to the waiver. The Family Division so held in proceedings concerning applications, among other things, to vary a financial remedies order, during the course of which it had been discovered various enforcement and variation applications had been made that the judge hearing those applications had been the judge who had conducted the FDR.
Financial services – Securitisation. The steps taken by the first defendant, Greencoat Investments (GIL), together with the other defendants, to take control of the securitisation structure issued by the claimant Business Mortgage Finance 6 (BMF6) were invalid and of no effect. The Chancery Division, also granted an injunction as there remained a strong probability that, unless restrained by an order of the court, GIL would continue to interfere with the securitisation structure irrespective of whether it had the requisite standing to do so
Financial services – Financial Conduct Authority. The decision by the Financial Conduct Authority to cancel the limited permission to carry on consumer credit activities including credit broking given to North London Van Centre Ltd (NLVC) under Pt 4A of the Financial Services and Markets Act 2000 (FSMA 2000) had not been outside the bounds of reasonable decisions open to it. Consequently, the Upper Tribunal (Tax and Chancery Chamber) dismissed the reference made to it by NLVC concerning the FCA's Decision Notice.
Employment – Equal Pay. If an employer was going to seek to justify a pay disparity based on a factor such as the comparator's promotion or superior merit or market forces, it had to be able to explain with particularity what those factors meant and how they were assessed, and how they had applied in the circumstances of the case. Accordingly, the Court of Appeal, in allowing the claimant's cross-appeal against the decision of the Employment Appeal Tribunal, held that the employer had been unable to do that because of its chaotic and non-transparent employment system.
Criminal law – Victim of trafficking. The defendant was a victim of trafficking, and there was a clear nexus of compulsion between his production of a controlled drug of class B, namely cannabis, and the trafficking. Accordingly, the Court of Appeal, Criminal Division, held that the defendant's conviction had been unsafe and quashed it.
Employment – Remuneration. The Employment Appeal Tribunal (the EAT) had held that the Working Time Regulations 1998, SI 1998/1833, made no provision for pro-rating of annual leave in circumstances where the respondent teacher did not have normal working hours within the meaning of the Employment Rights Act 1996. They simply required the straightforward exercise of identifying a week's pay in accordance with the provisions of ss 221-224 of that Act and multiplying that figure by 5.6. The Court of Appeal, Civil Division, having considered the relevant EU and domestic law, agreed with the EAT and dismissed the appeal by the Harpur Trust against the EAT's decision.
Negligence – Contributory negligence. It was no answer to the defendant's breach of duty, resulting in a road traffic collision, to say that the claimant, by reason of his excessive speed, had fallen outside its scope. However, the Queen's Bench Division, found that the proper apportionment was 70/30 in favour of the defendant, as the claimant had been racing in a way that had been dangerous and irresponsible.
Practice – Pre-trial or post-judgment relief. The first defendant's application to vary a previous freezing order to enable payment to be made to a property company would be permitted. The Chancery Division held, amongst other things, that the sum sought was not a large sum in the scale of the litigation. On the facts, it was to be made in order to preserve a planning position and was in no way untoward, but was instead entirely reasonable, and a payment that the court ought to permit.
Extradition – Private and family life. Balancing the factors in favour and against extradition, and taking the best interests of the appellant's son as a paramount consideration, her extradition was compatible with the art 8 of the European Convention on Human Rights rights engaged. Accordingly, the Administrative Court dismissed the appellant's appeal against judge's decision to order her extradition to Lithuania for offences related to heroin.
Criminal law – Costs. The appellant solicitor's clients had not become parties to contempt proceedings in seeking disclosure of certain material relating to those proceedings and the contempt proceedings had not been 'criminal proceedings'. Accordingly, the Court of Appeal, Criminal Division, in allowing the appellant's appeal against a wasted costs order, held that no order under s 19A of the Prosecution of Offences Act 1985 could be made.
Medical practitioner – Disciplinary committee. The Medical Practitioners Tribunal (the MPT) had been entitled to rule that, in proceedings before it, adverse inferences from silence or a failure of a charged registered practitioner to give evidence were permissible. The Divisional Court, in dismissing the applicant registered medical practitioner's judicial review action challenging that decision, held that it was open to the MPT to draw adverse inferences from the failure of a charged registered practitioner to give evidence, including in an appropriate case, the inference that he had no innocent explanation for the prima face case against him, subject to such an inference not being procedurally unfair.
Criminal law – Costs. The present was not a case where the appellant counsel's observations on the procedure in s 28 of the Youth Justice and Criminal Evidence Act 1999 and the complainant's sexual behaviour in his closing speech had called for the discharge of the jury, as they could have been dealt with by appropriate directions. Accordingly, the Court of Appeal, Criminal Division, allowed the appellant's appeal against a wasted costs order.
Lending and security – Calling-up of security. Sheriff Appeal Court: Allowing an appeal against a sheriff's decision that the respondents had validly served a calling-up notice in respect of their security, a standard security over the appellant's property, the court held that the respondents' service of the calling-up notice on the Extractor of the Court of Session was invalid as it did not follow on from any of the three conditions referred to in s 19(6) of the Conveyancing and Feudal Reform (Scotland) Act 1970: as the calling-up notice was not served strictly in accordance with the provisions of s 19(6) it rendered the subsequent procedure inept, and the respondents' summary application incompetent.