Human Rights

Income tax – Tax avoidance scheme. The capital contracts arrangements that the taxpayer company was involved in were 'notifiable' arrangements within the meaning of s 306 of the Finance Act 2004. However, the taxpayer's activities did not fall within s 307(1)(a)(ii) or (iii) and accordingly, it was not a promoter of those arrangements within s 307(1)(b) of that Act. Consequently, the First-tier Tribunal (Tax Chamber) dismissed the Revenue and Customs Commissioners' application for an order, pursuant to s 314A of the Act, that those arrangements were 'notifiable' arrangements.

European Union – Value added tax. European Union law precluded national legislation which provided for the application of a measure derogating from art 193 of Council Directive (EC) 2006/112, as amended by Council Directive (EU) 2013/43, before the EU act authorising that derogation had been notified to the member state which had requested it, despite the fact that that EU act did not mention the date of its entry into force or the date from which it applied, even if that member state had expressed the wish for that derogation to apply with retroactive effect. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the payment of VAT by a taxable person who had been supplied with services subject to VAT.

European Union – Employment. Article 2(2)(b) of Directive (EC) 2000/78 should be interpreted to the effect that a measure which, as of a specific date, provided for the application on the recruitment of new teachers of a salary scale and classification on that scale which were less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date did not constitute indirect discrimination on the grounds of age within the meaning of that provision. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the lawfulness of a national measure applied, from a certain date, to newly recruited public servants, including teachers in national schools, which provided for a salary scale and classification on that salary scale upon recruitment which were less advantageous than that applicable to teachers already employed as such.

European Union – Data protection. Article 9 of Directive (EC) 95/46 should be interpreted as meaning that factual circumstances such as those of the case in the main proceedings, namely, the video recording of police officers in a police station, while a statement was being made, and the publication of that recorded video on a video website, on which users could send, watch and share videos, could constitute a processing of personal data solely for journalistic purposes, within the meaning of that provision, in so far as it was apparent from that video that the sole object of that recording and publication thereof was the disclosure of information, opinions or ideas to the public, that being a matter which it was for the referring court to determine. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in circumstances where the defendant had allegedly infringed Latvian national law by publishing a video, filmed by him, on the internet site www.youtube.com of the statement he had made in the context of administrative proceedings involving the imposition of a penalty in a station of the Latvian national police.

Nuisance – Flats. The claimants' claim in nuisance and under the Human Rights Act 1998 (the HRA 1998) failed. The claimants owned flats in a block which, they alleged, was looked into by visitors to the neighbouring Tate Modern Museum (the Tate). The Chancery Division held that the Tate had not been exercising a governmental function, and hence the claim under the HRA 1998 failed. With regard to nuisance, while the law of nuisance was capable, in an appropriate case, of operation to protect the privacy of a home as against another landowner, the claimants had been occupying a particularly sensitive property, but they had been operating in a way which had increased that sensitivity.

Family proceedings – Orders in family proceedings. Where a judge in earlier proceedings had found that a child (R) had suffered, and was likely to suffer, significant emotional harm as a result of the actions of the mother, that finding, was contrary to the local authority's conclusion that the threshold for public law intervention had not been met. Having made that finding prior to finally determining the private law applications and before, in particular, the contact applications, the parties and the court should have considered the further role the authority might have been required to play in fulfilment of their statutory obligations to R. The Family Division so ruled in allowing a father's appeal (in part) against, among other things, the decision that R should have no direct contact with him. The court held that, in the circumstances, the judge should not have proceeded to a final determination that there should be no contact where there were still potential steps that could be taken to promote such contact.

Contract – Breach of Contract. The defendant was liable to the claimants for breach of contract for failing to complete the purchase of the claimants' property after the parties had exchanged contracts. The Court of Appeal, Civil Division, held that the contract was valid and enforceable despite the payment of a fee by the claimants to the defendant's purported agent without the defendant's knowledge.

Negligence – Medical negligence. Following the lifting of interim anonymity provisions by a consent order, the present judgment of the previously anonymised version ([2018] All ER (D) 151 (Nov)) was handed down. In allowing the appellant doctor's appeal against the award of damages for his admitted negligence, the Court of Appeal, Civil Division, held that the judge was required to apply the 'scope of duty test' as set out in South Australian Asset Management Corportation v York Montague Ltd (SAAMCO). The SAAMCO test required there to be an adequate link between the breach of duty and the particular type of loss claimed and accordingly the appellant although liable for the costs associated with the respondent's sons haemophilia, was not liable for the cost's associated with his autism.

Police – Informer. The claimant confidential human intelligence source's contractual claim for damages against the defendant Chief Constable's police force, for failure to pay him what was agreed between them under alleged contractual arrangements and for other losses, failed. The Queen's Bench Division held that there had never been any binding contract between him and the Chief Constable as pleaded or as alleged in his evidence.

Extradition – Prohibition of torture. The Divisional Court held that it needed further information in order to have objective, reliable, specific and properly updated evidence of the conditions in which the appellants would be held in prison in Turkey, before it could decide whether there was a real risk that they would be subjected to inhuman or degrading treatment. Accordingly, it adjourned the appellants' appeal against orders for their extradition to Turkey for offences described as plunder, torment and restriction of freedom of person by using coercion, threat or deceit imputed on the suspect pending receipt of answers to specified questions.

Personal injury – Workplace stress – Police officer – Duty of care – Foreseeability – Causation. Court of Session: In an action in which a former police officer sought damages for psychiatric injury caused by a failure to afford her fair treatment in carrying out an investigation into her conduct and performance and in moving her to another department, the court held that the defender was responsible for any act or omission giving rise to a breach of duty which the pursuer might establish as a matter of fact, the pursuer had established a breach of duty, her psychiatric injury was reasonably foreseeable, and there was a causal link between the breach complained of and the psychiatric injury she sustained.

Negligence – Duty of care – Pure economic loss – Search of public register. Sheriff Appeal Court: In an appeal in an action by the holders of an inhibition over property, which was properly registered in the Register of Inhibitions and Adjudications, against searchers instructed to carry out a search on behalf the sellers prior to the purchase of the property, the defenders searches not having disclosed the inhibition, which was not discharged before the sale, and the purchasers' title having been registered in the Land Register without qualification, the court held that the sheriff reached the correct decision on the principal issue, ie that a firm of professional searchers, instructed by the seller of heritable subjects to carry out a search in the Register of Inhibitions and Adjudications, owed a duty of care to a creditor who had registered an inhibition in that register; however, the sheriff went too far in fixing a proof and in repelling the pleas that he did; the remaining questions of law as regards good faith and loss were best resolved after a proof before answer.

Lien – Equitable lien. The appeal of the claimant solicitors' firm (Bott) against a finding that it was not entitled to an equitable lien failed. Bott carried out work processing claims against airlines, including the defendant company (Ryanair). The Court of Appeal, Civil Division, held that where Bott simply wrote a letter of claim or assisted a client to complete the on-line form, and the claim was paid in response to the letter or the form, it was not entitled to an interest in the compensation that equity would protect. Further, Ryanair's process for compensation did not appear any more difficult to operate than Bott's method of receiving instructions.

Immigration – European Economic Area nationals. Regulation 8(2)(c) of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, was limited to those who had joined an EEA national in the UK and continued to be dependent upon the EEA national. The Court of Appeal, Civil Division, in dismissing the appellants' appeal, further held that the Upper Tribunal (Immigration and Asylum Chamber) had correctly found that there was no evidence that, if the second and third appellants were to leave the EU territories, their British citizen brother and cousin would be discouraged from exercising his rights to freedom of travel within those territories.

Company – Winding up. The Chancery Division allowed an application by the company and the second applicant former director for the rescission of the winding up order. The company operated a hangar at Stansted Airport. There had been a material change in the circumstances, including that the court that had made the winding up order had had no evidence whatsoever of the reasons for the position the first applicant company had found itself in, or as to its ability to fund its business. Accordingly, rescission would be on the basis that the company appointed an additional director within three months of the order, to ensure that the problems of the past did not recur.

Extradition – Private and family life. There had been nothing new or surprising about Polish Judicial Authority v Celinski and other cases ([2016] 3 All ER 71), which had laid down essentially the same test as HH and another v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority ([2012] 4 All ER 539). Accordingly, the Divisional Court dismissed the appellant's appeal against orders for his extradition to Poland to serve activated sentences of six months' imprisonment for breaking into an allotment shed and one year's imprisonment for stealing three aluminium work platforms worth £425.

Immigration – Deportation. The Upper Tribunal (Immigration and Asylum Chamber) had been wrong to find that the respondent Secretary of State had not been shown to have acted unlawfully in making a deportation order against the appellant Somali national. The Court of Appeal, Civil Division, further held that the deportation order had been void ab initio and, therefore, had not invalidated the appellant's existing leave to remain, such that the appellant's application for indefinite leave to remain had to be determined.

Road traffic – Private hire vehicle. The display of the respondent Uber driver's vehicle on a smartphone App did not constitute an invitation to book the respondent's vehicle or an invitation to book an Uber vehicle in the vicinity, even if it were not the respondent's. The Divisional Court, in dismissing the appellant local authority's appeal, further held that the judge had not erred in law in finding that the prosecution had not proved that the respondent had been plying for hire without a licence to do so, contrary to s 45 of the Town Police Clauses Act 1847.

Family proceedings – Orders in family proceedings. There was no presumption against a ward giving evidence in criminal or civil proceedings merely because those proceedings took place in another jurisdiction. In allowing an application for permission for a 12-year-old boy (who was a ward of the court) to travel to India to give evidence at his mother's trial for the alleged murder of his father, the Family Division ruled that a balancing exercise was necessary, and that the essential test was whether justice could be done to all the parties without further questioning of the child. The court held that, while giving evidence in his mother's criminal trial was not a risk-free course for the child, it did not outweigh the advantages to him of doing so. In so ruling, it considered the principles to be applied by the court when making a decision about a ward giving evidence in a trial outside the jurisdiction of England and Wales.

Practice – Pre-trial or post judgment relief. The part of the judge's order which required the defendant to pay £1m into court, or to provide security in a like sum, and provided that if the defendant failed to do so, there would be judgment for the claimant, would be set aside. The Court of Appeal, Civil Division, substituted an order that the defendant had permission to rely on a witness statement.