Immigration – Entry clearance. For the purposes of para 320(7B)(d) of the Immigration Rules, submitting a false document would only be deception if the applicant submitted the document knowing that it was false and the Upper Tribunal (Immigration and Asylum Chamber) had erred in its conclusion that it did not matter if it had been the dishonesty of the applicant or a third party. However, the Court of Appeal, Civil Division, held that it had been patently open to the Secretary of State to conclude, on the balance of probabilities, that the appellant had knowingly submitted false documents.
Sentence – Custodial sentence. The defendants' contention, that an immediate custodial sentence was never appropriate for a non-violent crime committed as part of peaceful protest as a matter of domestic law and would breach art 10 of the European Convention of Human Rights, was rejected. However, the Court of Appeal, Criminal Division, in allowing their appeals, held that an immediate custodial sentence for public nuisance had been manifestly excessive and, given they had served a sentence equivalent to six weeks, a conditional discharge for two years was appropriate.
Divorce – Petition. Decree nisi would be pronounced on the wife's petition for divorce on the basis of the husband's admitted adultery, rather than on the husband's petition based on the wife's behaviour which he said was unreasonable for him to be expected to live with. The Family Court found overwhelming evidence that the husband had been committing adultery for over twenty years, unknown to the wife until 8 May 2017, but the wife had not behaved in the way alleged by the husband.
European Union – Equal treatment in employment. European Union law, in particular the principle of primacy of EU law, should be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a national body established by law in order to ensure enforcement of EU law in a particular area lacked jurisdiction to decide to disapply a rule of national law that was contrary to EU law. The Court of Justice of the European Union so held in proceedings concerning the jurisdiction of the Workplace Relations Commission (Ireland) to decide to disapply provisions of national law that were contrary to EU law.
Capital gains tax – Exemptions and reliefs. The taxpayer's residence in the property did not have sufficient 'quality' for the property to qualify as an 'only or main residence' for the purposes of principal private residence (PPR) relief pursuant to s 222 of the Taxation of Chargeable Gains Act 1992. Accordingly, the First-tier Tribunal (Tax Chamber) dismissed the taxpayer's appeal against the Revenue and Customs Commissioners' decision not to grant him PPR and lettings relief.
Bankruptcy – Trustee in bankruptcy. The appellant bankrupt unsuccessfully appealed against the dismissal of his application under r 18.35 of the Insolvency Rules (England and Wales) 2016, SI 2016/1024, which allowed a bankrupt, with the permission of the court, to make an application on the grounds that the remuneration or expenses charged by a trustee were excessive. The liabilities of the bankrupt's estate were relatively modest, around £16,622 in total. However, the total amount required to discharged the liabilities, including the trustee's costs, among others, was around £285,089. The Chancery Division ruled that the deputy district judge of the county court had not erred in considering that the question to be asked on the application was whether the appellant could show that the trustee's costs could be reduced below the net realisation figure of £98,000, and in concluding that that was not likely. The deputy district judge had not erred in exercising his discretion by dismissing the application for permission. In so ruling, the court considered the relevant test for granting permission under r 18.35.
Divorce – Financial provision. On the basis that the financial arrangements embodied in an Egyptian divorce agreement were not the subject of a formal order in the Egyptian divorce proceedings, the future security of the parties' child, A (and that of the applicant wife as his primary carer) required an order for financial relief to be made under the Matrimonial and Family Proceedings Act 1984, Pt 3. The Family Division so ruled, and, among other things, ordered that the wife's occupation of a flat in London, that was part owned by the first respondent husband, be extended until A was 18 years old, or until he had completed his secondary education.
Immunity – State immunity. The appellant company's appeal failed. The Privy Council held that certain shares were not immune from any process of enforcement under the State Immunity Act 1978 as extended to Jersey by the State Immunity (Jersey) Order, 1985 (the SIA 1978). The application of s 13(2)(b) of the Act turned on the straightforward question of whether the property against which enforcement was sought was property of a state. In the present case, all that was relied on was mere control, which was not property in that sense.
Practice – Stay of proceedings. A stay of proceedings imposed by the court applied to the service of the claim form, as well as to any other procedural step that would otherwise have been required to be taken during the period of the stay. Accordingly, the Court of Appeal, Civil Division, in allowing the appellant's appeal, held that his claim form had been served within four months of its issue, once proper allowance was made for the full period of the stay imposed by the court
Employment – Whistleblower detriment. It was open to an employee to bring a claim, under the s 47B(1A) of the Employment Rights Act 1996, against an individual co-worker for subjecting him to the detriment of dismissal and to bring a claim of vicarious liability for that act against the employer under s 47B(1B). The Court of Appeal, Civil Division, in dismissing the appellants' appeals, further rejected the submission that the second appellant could not be liable to the respondent in relation to any instruction to dismiss him because the first appellant had given the instruction to dismiss.
Family proceedings – Orders in family proceedings. The judge's decision to make a secure accommodation order for six months concerning the appellant, aged 15-and-a-half, had been correct, given that she had a history of absconding that had placed her at severe risk. The Court of Appeal, Civil Division, in dismissing her appeal, further held that the risk of significant harm to the appellantfrom unsafe behaviour was still real and the length of the order had been appropriate in the circumstances.
Parent and child – Children's hearing – Participation in children's hearing – 'Relevant person' – Sibling. Court of Session: Refusing a reclaiming motion and allowing cross appeals in judicial review proceedings challenging two decisions of a children's hearing on the basis that the petitioner, who was the full sibling of the child about whom decisions were taken at those hearings, was not able to participate in them, notwithstanding his established family life with his sibling, the court held that neither the Human Rights Convention nor case law required that the petitioner be afforded relevant person status, nor the opportunity to apply for such, in relation to the children's hearings concerning his sibling; there had been no violation of his art 8 procedural rights in respect of the decisions taken and there was no need to read down the provisions of s 81(3) of the Children's Hearings (Scotland) Act 2011 in the way the Lord Ordinary had done: her interlocutor to that effect would be recalled but the court adhered to her refusal of the orders sought in the petition.
Parent and child – Children's hearing – Participation in children's hearing – 'Relevant person' – Half-sibling. Court of Session: Refusing an appeal from a sheriff's decision upholding a decision of a children's hearing that the appellant, then a boy aged 12, was not to be deemed a 'relevant person' in terms of s 81(3) of the Children's Hearings (Scotland) Act 2011 in respect of his then 4-month-old half-sister, the court held that the sheriff did not err when he determined that the decision not to deem the appellant to be a relevant person was justified: the appellant's contention that his legitimate interests, including his rights under art 8 of the European Convention on Human Rights, could only be protected by the conferment of deemed relevant person status was unfounded.
Judicial review – Public inquiry – Undercover policing – Human Rights. Court of Session: In judicial review proceedings in which the petitioner challenged a decision of the UK government refusing to amend the terms of reference of an inquiry into undercover policing so as to cover the activities of English police forces in Scotland and the activities of Scottish police forces, and a decision of the Scottish Government not to direct that there be public inquiry in relation to those matters, the court rejected contentions that the decisions were incompatible with certain of the petitioner's Convention rights, that they were unlawful because the reasons given for each were inadequate, and that they were irrational.
Employment tribunal – Jurisdiction. The decision on the sufficient connection question was an evaluative judgment to be made on the underlying facts, which was a question of law, but an appellate tribunal would not usually interfere with a first instance evaluative judgment of the kind. The Court of Appeal, Civil Division, in dismissing the appeals, further held that the existence of an English choice of law clause could be considered on the sufficient connection issue.
Negligence – Causation. The claimant administratrix succeeded in a claim against the defendant hospital trust for damages, following the death of her 77-year old father. He had initially complained of having flu-like symptoms, but had later died from anoxic brain injury, respiratory and cardiac arrest and severe acute epiglottitis. The Queen's Bench Division held that a preliminary diagnosis of pharyngitis by the defendant's doctor, who had seen the deceased at the hospital, had been unreasonable and that his failure to read the patient report form and triage notes, and to admit the deceased, instead of sending him home with oral antibiotics, amounted to a breach of duty. Accordingly, damages in the agreed sum of £75,000 were awarded.
Practice – Evidence. In a claim arising from the defendant NHS Trust's negligent performance of a laparoscopic cholecystectomy, the need for the formal introduction of expert comment by way of CPR 35 permission was not needed to prove what had been agreed by the parties. Accordingly, the Queen's Bench Division dismissed the claimant's application to have permission to rely on neurosurgical evidence. The court also gave guidance to applicants in relation to CPR 35 applications.
Bankruptcy – Bankrupt's estate. A former bankrupt's claim against the first defendant former trustee in bankruptcy (the first trustee) and the second defendant, his successor, failed. The claims concerned the first trustee's seizure and sale of equipment which the claimant, a motor technician, alleged did not form part of the bankruptcy estate, but fell within the exception in s 283(2) of the Insolvency Act 1986, as being necessary for his personal use in his employment, business or vocation. In dismissing the claims for conversion and for an account, the Chancery Division considered, among other things, the proper approach to be applied in respect of the s 283(2) exception, and the effect of s 299(5) of the Act, in particular, whether the discharge of a trustee in bankruptcy operated as an absolute bar to liability.
Doctor – Negligence. The second defendant doctor was liable in negligence for the psychiatric damage which the claimant had sustained and its consequences by virtue of the religious practices and religious doctrines he had imposed on her. However, the Queen's Bench Division, in dismissing the claim against the first defendant surgery proprietors, held that they were not vicariously liable for that conduct, as religious proselytisation could not fairly be regarded as a reasonably incidental risk to the business of carrying on a doctors' surgery.
Mental health – Medical treatment. The applicant NHS Trust was successful in its application for permission to administer a treatment on the respondent, who had been diagnosed with Creutzfeldt-Jakob Disease but lacked capacity to make decisions regarding his treatment. The Court of Protection found that it would be in the respondent's best interests to receive the treatment, despite it being new and untested.