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.
Bankruptcy – Sequestration. Sheriff Court: Granting a petition in which the trustee under a trust deed originally granted by the respondent in 2006 sought an award of sequestration of the respondent's estate, the court held that the legislation provided a route for creditor trustees, on the basis of a simple averment that an award of sequestration would be in the best interest of the creditors, to seek and obtain as of right, such an award without the requirement to prove the truth of that averment: the legislation was Human Rights Convention compliant and there was therefore no basis on which it could or should be read down.
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.
Probate – Wills. The judge, refusing to exercise power under s 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to permit the appellant to commence proceedings under s 2 to challenge the distribution of her late husband's estate, had erred in applying a robust approach and holding that the court had to be satisfied that the claim was arguable and there were good reasons justifying the delay. The Court of Appeal, Civil Division, held that, when determining whether a claim should be brought outside the six-month period, the court had to consider all of the relevant circumstances of the case and it was necessary to decide whether the applicant's claim had a real prospect of success rather than a fanciful one, and if the claim had no real prospect of success; the court would not entertain a claim with no merit which was commenced outside the six-month time limit merely because the delays could not be explained and no one was prejudiced.
Criminal law – Driving offences. Using a hand-held mobile telephone or device for the purposes of s 41D of the Road Traffic Act 1988 and reg 110 of the Road Vehicles (Construction and Use) Regulations 1986, SI 1986/1078, was restricted only to the use of an interactive communication function. Accordingly, the Divisional Court held that the Crown Court had been correct to conclude that the respondent's conduct, in filming an accident scene as he drove past it using the camera on his mobile phone, had not amounted to 'using' a hand-held mobile telephone or device for the purposes of s 41D and reg 110.
Company – Scheme of arrangement - Meeting of creditors. The application by Syncreon Group BV and Syncreon Automative (UK) Ltd for an order pursuant to s 896 of the Companies Act 2006 convening meetings of certain classes of creditors for the purpose of considering, and if thought fit approving, schemes of arrangement proposed to be made pursuant to Pt 26 of that Act, was allowed. The Chancery Division held that: (a) the two classes for each of the two schemes were properly constituted; (ii) and there were no 'roadblock' issues which made it obvious that the court had no jurisdiction or should otherwise refuse to exercise its discretion to sanction the schemes.
Proceeds of crime – Confiscation order. High Court of Justiciary: Refusing an appeal by an appellant who pled guilty to a charge of formulating a fraudulent scheme whereby HMRC were induced to pay to claimants £50, 981 not due to them, and of which she received £15,294, the court held that the sheriff had not erred in making a confiscation order in terms of the Proceeds of Crime Act 2002 in which the appellant's benefit from her criminal conduct was identified as £50, 981 rather than £15,294.
Contract – Construction. In determining whether the respondents were liable to pay tax following the sale by them of the second appellant company to the first appellant, the Court of Appeal, Civil Division held, agreeing with the trial judge, that as no notice of a Tax Claim had been made within 7 years of the completion date of the sale, such a claim was therefore barred and that the respondents were entitled to summary judgment on the issue.
Practice – Adjournment of proceedings. None of the orders made in the claimant's favour on its applications for further disclosure and to amendment its particulars of claim provided any ground to support its adjournment application. The Commercial Court further held that there were no other sufficiently compelling reasons to order the adjournment of that trial date and dismissed the adjournment application.
Sentence – Murder. The sentence of imprisonment for life, with a minimum term of 20 years, less days spent on remand, imposed on the defendant for murder had been severe, but not manifestly excessive. The Court of Appeal, Criminal Division, in dismissing the defendant's appeal, held that account was taken of the mitigating features, but they had been limited and wholly insufficient to outweigh the gravity of the aggravating features.
Damages – Accident. The injury sustained by the claimant while disembarking from the airline was an 'accident' within the meaning of the art 17(1) of the Montreal Convention 1999. The Queen's Bench Division, held, that the claimant was entitled to general damages related to the pain, suffering and loss of amenity as a result of the shoulder, pelvic and knees injuries he sustained, in the sum of £39,250.
Trade union – Certification as independent trade union. The respondent Certification Officer had correctly rejected the appellant trade union's application to be entered on to the list of Trade Unions maintained by the respondent. The applicant was not an organisation consisting 'wholly or mainly of workers' within the meaning of s 1 of the Trade Union Labour Relations (Consolidation) Act 1992: a 'worker', for those purposes, being an individual who worked under a contract. Consequently, the Employment Appeal Tribunal dismissed the appellant's appeal against the employment tribunal's decision to uphold the respondent's decision.
Libel and slander – Identification of claimant as person defamed. The Privy Council held that for two statements made by the same person, but published at different times, to be aggregated for the purpose of giving rise in conjunction to a completed cause of action in defamation, in the mind of the reasonable reader there had to be created a sufficient nexus, connection or association between the two of them, so that (where one was defamatory and the other identified the subject) there came a moment in time at which, in the mind of that reader, the claimant was identified as the subject of the defamatory accusation.
Immigration – Appeal. The Upper Tribunal (Immigration and Asylum Chamber) (the UT) had been unclear on what basis the adjudicator had made findings that the respondent had tortured and killed people as part of the Taliban and the UT had been entitled to depart from those findings and make its own assessment. Accordingly, the Court of Appeal, Civil Division, dismissed the appellant Secretary of State's appeal against the UT's decision allow the respondent's appeal against the Secretary of State's decision to cancel his indefinite leave to remain.
Extradition – Private and family life. Even if fresh evidence concerning the serious and enduring mental health problems of the appellant's partner and the special needs of the couple's young daughter had been admitted, the factors in the appellant's favour fell a good way short of outweighing the factors which favoured extradition. Accordingly, the Administrative Court dismissed the appellant's appeal against the decision to order his extradition to Poland to serve the remaining 2 years, 5 months, 28 days of a sentence of 2 years, 6 months' imprisonment for ten criminal damage offences.
Company – Scheme of arrangement. The applicant company's application for sanction of a transfer scheme was allowed. The Chancery Division held that the jurisdictional threshold had been crossed and accordingly, the approved scheme fell to be considered for sanction. Having considered the applicable legal principles and the relevant issues, the court decided that although the opposition to the scheme by a minority shareholder had some weight and merit, the scheme should be sanctioned and there was no ground upon which sanction of the scheme could be withheld on discretionary grounds.
Practice – Family proceedings. In making findings of fact that the appellant had been controlling and had raped the respondent mother, the judge had erred by failing to consider all the evidence when making findings about the credibility of the parties. The Court of Appeal, Civil Division, allowing the appellant's appeal, held that the judge's findings could not withstand scrutiny when examined against the backdrop of the whole of the evidence.
Extradition – Extradition order. The district judge had been wrong to find that the appellant was a fugitive. Accordingly, his conclusions on both s 14 of the Extradition Act 2003 and art 8 of the European Convention on Human Rights were fundamentally undermined. The Administrative Court so ruled, in allowing the appellant's appeal against the district judge's decision, ordering her extradition to France in respect of a conviction in 2001 on five charges of buying, possessing, trafficking, importing and smuggling 1400 doses of LSD from the Netherlands. In so doing, the court considered the proper approach to determining whether a person was a 'fugitive'.
Food and drugs – Food unfit for human consumption. The Supreme Court referred two questions to the Court of Justice of the European Union, in a dispute concerning the available means of challenging a decision that a slaughtered carcass was unfit for human consumption. The questions were: (i) whether Regulation (EC) 854/2004 and Regulation (EC) 882/2004 precluded a procedure whereby, pursuant to s 9 of the Food Safety Act 1990, a Justice of the Peace decided on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements; and (ii) whether Regulation (EC) No 882/2004 mandated a right of appeal in relation to a decision of an official veterinarian, under art 5.2 of Regulation (EC) No 854/2004, that the meat of a carcass was unfit for human consumption and, if it did, what approach should be applied in reviewing the merits of the decision taken by the OV on an appeal.
Company – Registration. The defendant company's appeal against the findings of an arbitrator failed, in a dispute concerning the effects on the contract between the parties of the striking-off of the claimant company from the register of companies. The Commercial Court held that the arbitrator had been correct to conclude that the defendant's termination did not fall to be re-assessed retrospectively.