EU

European Union – Environment. The 'waste hierarchy' principle, as expressed in art 4 of the Directive (EC) 2008/98, read in the light of art 13 thereof, should be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which classified waste incineration facilities as 'strategic infrastructure and installations of major national importance', as long as that legislation was compatible with the other provisions of that directive which laid down more specific obligations. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings concerning an action seeking the annulment of an Italian Decree concerned, among other things, with the identification of the overall treatment capacity of facilities for the incineration of municipal and similar waste in service or authorised at national level.

Insolvency – Statutory demand. The deputy judge had correctly concluded that the third-party charges provided by the respondents for the indebtedness of a company (of which they were directors and shareholders) to the creditor company were security in respect of the debt upon which the statutory demands had been based, within the meaning of r 6.5(4)(c) of the Insolvency Rules 1986, SI 1986/1925, interpreted in accordance with its underlying rationale and purpose. Accordingly, the Chancery Division dismissed the creditor's appeal against the deputy judge's decision to set aside the statutory demands served by the creditor against the respondents.

European Union – Customs and excise. Article 9(4) of Regulation (EU) 2016/1036 stated that where the facts as finally established show that there had been dumping and injury caused thereby, and the Union interest called for intervention, a definitive anti-dumping duty was to be imposed by the Commission. Further, art 14(1) of that Regulation provided that the anti-dumping duties were to be imposed by regulation. It followed that, in that the Implementing Regulations at issue referred to arts 9 and 14 of Regulation 2016/1036, they had a legal basis that empowered the European Commission to re-impose the anti-dumping duties imposed by the Regulations declared to be invalid. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings between the taxpayer company and the Revenue and Customs Commissioners, UK, in relation to a request by that company for repayment of anti-dumping duties paid on the import of footwear with uppers of leather into the EU.

European Union – Consumer protection. Article 3(3) of Directive (EC) 1999/44 should be interpreted as meaning that the member states remained competent to establish the place where the consumer was required to make goods acquired under a distance contract available to the seller, for them to be brought into conformity in accordance with that provision. That place had to be appropriate for ensuring that they could be brought into conformity free of charge, within a reasonable time and without significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer had required the goods. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings by the applicant purchaser concerning a claim for reimbursement of the purchase price of a tent, made by the applicant in the exercise of his right to rescind the sale contract.

Sentence – Sexual offences. The defendant's appeal against a total sentence of 15 months' imprisonment for breach of a sexual harm prevention order and failing to comply with notification requirements was dismissed. The Court of Appeal, Criminal Division, held that, on the facts and having regard to the sentencing guidelines, the judge had been entitled, in principle to activate, in full, a suspended sentence, imposed for the underlying sexual offences, and that the total term of 15 months' imprisonment, while stern, was not manifestly excessive.

Family proceedings – Orders in family proceedings. In respect of a child (A), who was the subject of an interim care order, the only realistic option was for him to go to live with his father. Accordingly, the local authority's proposal for such a transition was approved. However, the Family Division ruled that the position in relation to A's sibling required further assessment of family members and of the mother which, it held, would be the subject of further consideration.

Family proceedings – Orders in family proceedings. Re X (A Child); Re Y (A Child) [2016] All ER (D) 48 (Sep) was not authority for the bare proposition that a child could be placed, without more, in a placement in Scotland which was not approved as secure accommodation by the Scottish Ministers, pursuant to an order authorising the deprivation of the child's liberty, and made pursuant to the inherent jurisdiction of the English High Court. Rather, it was authority for the proposition that, while the English court had the power to make such an order, unless the Inner House of the Court of Session in Scotland agreed to invoke the nobile officium in respect of such a course of action, such placement might be without legal authority in Scotland. Insofar as the Family Court Practice suggested otherwise, it was not correct. The Family Divisions so ruled, among other things, in allowing a local authority's application for an adjournment to permit it to petition the Inner House of the Court of Session in Scotland for orders finding and declaring that measures ordered by the English High Court in respect of the third respondent child, who was currently accommodated in a placement in Scotland, should be recognised and enforceable there. The court further granted the authority interim relief under the inherent jurisdiction, pending the determination of that petition.

Employment – Remuneration. The respondent ambulance service workers brought a claim against their NHS Trust employer for unlawful deductions from their holiday pay. The Court of Appeal, Civil Division, held that the Employment Appeal Tribunal had been correct to find in favour of the respondents and hold that over-time was to be considered part of pay for the purposes of calculating holiday pay.

Costs – Taxation. The appellant appealed against HMRC's decision to issue it an information notice under the Finance Act 2008, which HMRC subsequently withdrew. The Court of Appeal, Civil Division, held that HMRC had not acted unreasonably in its conduct of proceedings such as to engage the costs jurisdiction under the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.

European Union – Trade marks. Article 4(1)(b) of Directive (EC) 2008/95 had to be interpreted as precluding national legislation making provision for a disclaimer whose effect would be to exclude an element of a complex trade mark, referred to in that disclaimer, from the global analysis of the relevant factors for showing the existence of a likelihood of confusion within the meaning of that provision, or to attribute to such an element, in advance and permanently, limited importance in that analysis. The Court of Justice of the European Union so held in proceedings concerning the refusal to register the word sign 'ROSLAGSÖL' as a national trade mark.

Immigration – Appeal. In assuming that they had taken the appellant's case 'at its highest' both the Upper Tribunal (Immigration and Asylum Chamber) and the Secretary of State were operating under a misapprehension about the case. The Court of Appeal, Civil Division, held, accordingly that the case was not an appropriate one for certification with the consequence that the Secretary of State's decision refusing her asylum claim and certifying it as clearly unfounded should have been quashed and set aside.

Bankruptcy – Petition. The applicant's application for a stay, and to re-impose an earlier order in the relevant bankruptcy proceedings, failed. The Chancery Division held that the circumstances did not justify a general stay of the order. Further, the balance came down in favour of refusing to exercise the discretion in r 10.32(5) of the Insolvency Rules 2016 to order that there be no notification of the bankruptcy order to the Land Registry or publication in the Gazette.

Costs – Change in funding. The appellant's personal injury claim, arising from a brain injury, was eventually settled. He appealed against the master's decision that the appellant's additional liabilities were not recoverable from the respondent. The Queen's Bench Division, in dismissing the appeal, held that the master had correctly directed himself as to the relevant principles of law in finding that neither of the reasons put forward by the appellant's solicitors had justified a change in funding (from legal aid to a conditional fee agreement basis, in conjunction with ATE insurance), and in concluding that the appellant's additional liabilities were not recoverable from the respondent.

Barrister – Pupillage. The respondent Bar Standards Board's decision to refuse the appellant's application for a complete exemption from the non-practising period (the first six months) of pupillage as a whole had been one well within the discretion of the panel. The Administrative Court, in dismissing the appellant' appeal against that decision, held that it was not wrong, but wholly justifiable and right.

Practice – Costs. The claimants had been entitled to their costs of judicial review proceedings that had been discontinued following consent orders reached with HMRC because, although the proceedings had sought interim relief against HMRC's refusal to approve the claimants as wholesale suppliers of alcohol, which HMRC had not been in a position to grant, the claimants had had to start the proceedings in order to have had any chance of obtaining interim protection for as long as it had been needed. The Court of Appeal, Civil Division, dismissing HMRC's appeal, held that the judges had been entitled to find that the claimants had effectively been successful in gaining what they had sought in the judicial review proceedings.

Practice – Personal injury. Where a claimant's injury had not itself impacted on life expectancy, permission to rely on that category of evidence would not be given, unless there was clear evidence to support the view that the individual was atypical and would enjoy longer or shorter expectation of life. Bespoke life expectancy evidence from an expert in a particular field should be confined to cases where the relevant clinical experts could not offer an opinion at all or stated that they required specific input from a life expectancy expert. Accordingly, following a case management conference, concerning the claimant's personal injury claim, the Queen's Bench Division dismissed the defendants' application for permission to rely on expert evidence on the claimant's life expectancy.

Costs – Order for costs. The applicant housing trust succeeded in its application for judicial review of the order made by the defendant magistrates' court awarding prosecution costs against the applicant in the sum of £21,052.80 in favour of the interested party's solicitors following settlement of proceedings against the applicant for the alleged failure to abate a statutory nuisance pursuant to s 82 of the Environmental Protection Act 1990. The Administrative Court held that the magistrates had erred by not considering the individual items that the applicant had challenged and, if they had considered any of those points, by failing to give reasons for any decision they had reached in relation to them. Consequently, the magistrates' decision was quashed and the matter was remitted back to the magistrates to be heard by a differently constituted Bench.

European Union – Consumer protection. The application by a trader of a model for concluding contracts for the supply of telecommunications services under which the consumer had to take the final transactional decision in the presence of a courier who delivered the standard-form contract, without being able freely to take cognisance of the content of that contract while the courier was present, did not constitute a practice that could be classified as an aggressive commercial practice in all circumstances. The Court of Justice of the European Union so held, among other things, in proceedings concerning the classification of a commercial practice as an 'aggressive commercial practice' for the purposes of arts 8 and 9 of Directive (EC) 2005/29.

Judicial review – Application for judicial review. The Supreme Court of Mauritius had been entitled to find that the decisions of the appellant Government Ministries had been open to challenge by way of judicial review, but had erred in finding that their decisions not to complete a contract with the respondent had been unreasonable. The Privy Council, allowing the Ministries' appeal held that they had been entitled to make a decision that the respondent had not complied with the pre-contract requirements for the provision of a comfort letter and that the respondent had had no legitimate expectation that, despite that non-compliance, its comfort letter would either be accepted or that further debate was an option.

European Union – Employment. Clause 2.6 of the framework agreement on parental leave, set out in the Annex to Council Directive (EC) 96/34, as amended by Council Directive (EC) 97/75 should be interpreted as precluding, where a worker employed full-time and for an indefinite duration was dismissed at the time he was on part-time parental leave, the compensation payment for dismissal and the redeployment leave allowance to be paid to that worker being determined at least in part on the basis of the reduced salary being received when the dismissal took place. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the method for calculating compensation for dismissal and for the redeployment leave allowance which was paid to the applicant employee in the context of her dismissal on economic grounds which had taken place during her part-time parental leave.