Practice Management

Construction – Dwellings. The claimant's claim against the fourth defendant building control inspector, that it had breached its duty owed under s 1(1) of the Defective Premises Act 1972 in respect of the faulty construction of premises, had been rightly struck out on the basis that s 1(1) did not apply to building control inspectors. The Court of Appeal, Civil Division, so held, finding that the focus of s 1(1) was on the doing of positive work which had related to the provision of a dwelling, whereas in certifying, or refusing to certify, plans and works, the building inspector was not engaged in the positive role of the provision or creation of the relevant building.

Employment – Redundancy. The Central Arbitration Committee (the CAC) had correctly decided that in exceptional circumstances affecting employees' interests, where para 8 of Sch 1 to the Transnational Information and Consultation of Employees Regulations 1999, SI 1999/3323, as amended, applied, the employer did not have to wait for a European Works Council (the EWC) to give an opinion on the employer's proposed actions, provided that the employer had given the EWC the necessary information on its proposals and had engaged in consultation. The Employment Appeal Tribunal in dismissing the EWC's appeal against the CAC's decision, held that there was no prohibition in either those Regulations nor the Transnational Information and Consultation Directive (EC) 2009/39 on the employer taking or implementing its decision after it had consulted but before the EWC had produced an opinion. Nor could the Regulations be construed to have that effect.

Air traffic – Airport. The defendant Civil Aviation Authority had not misinterpreted or failed to comply with s 70 of the Transport Act 2000, nor had it reached irrational conclusions. Accordingly, the Administrative Court dismissed the claimant gliding club's application for judicial review of its decision to permit the introduction of air traffic controls in airspace around an airport, which was largely uncontrolled.

Practice – Pre-trial or post-judgment relief. The Employment Tribunal (ET) in refusing to make a cost order against the appellant, who had been partially successful, had not erred in law. The Administrative Court in refusing the appellant's appeal reiterated that the power to award costs in the ET was a disciplinary power, not a compensatory one, and further by withdrawing an allegation it could not be said that he respondent had acted unreasonably in his conduct of the proceedings.

Income tax – Investigation. The Administrative Court held that the statutory scheme was such that the defendant Revenue and Customs Commissioners' functions included, not only opening an enquiry into a return under s 9A of the Taxes Management Act 1970 during the enquiry window, but also checking returns without opening a s 9A enquiry, including after the enquiry window had closed, with a view to ascertaining if there was ground to issue a discovery assessment, and that such checking could include, not just re-reading the file, but carrying out investigations and enquiries to see if any further information could be obtained that could shed light on the question.

Value added tax – Input tax. The defendant Revenue and Customs Commissioners' (HMRC) decision, upholding its rejection of a claim for repayment of significant amounts of under-recovered VAT input tax made exactly ten years earlier, was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Accordingly, the Administrative Court quashed the decision and ordered HMRC to pay the claim (to the extent its quantum had been accepted).

Stamp duty – Repayment. The Revenue and Customs Commissioners (HMRC) had correctly decided that the whole of the property owned by the taxpayers was residential property for the purposes of stamp duty land tax (SDLT) and accordingly, that tax had been correctly paid on that basis. The First-tier Tribunal (Tax Chamber) so held in dismissing the taxpayers' appeal against HMRC's decision to reject their claim for refund of SDLT. The FTT took the view that for SDLT purposes, 'residential property' meant a building that was used as a dwelling and land that was or formed part of the garden or grounds of the dwelling including a building on such land. 'Grounds' had, and was intended to have, a wide meaning.

Family proceedings – Orders in family proceedings. The mother's appeal against findings of fact made against her in care proceedings, made on the basis of fresh evidence that suggested that her account of events had been plausible, was dismissed. The Court of Appeal, Civil Division, held that the family court had the statutory power under s 31F(6) of the Matrimonial and Family Proceedings Act 1984 to review its findings of fact, and it would generally be more appropriate for the significance of the further evidence to be considered by the trial court rather than by way of an appeal.

Animal – Dog. The claimant's application for judicial review of the Crown Court's decision upholding an order for the destruction of the claimant's pit bull type dog was dismissed. The Divisional Court rejected submissions that the Crown Court's decision on dangerousness had wrongly failed to take into account mandatory conditions of exemption which required particular controls (including neutering and use of muzzle/lead when in public) over a dog of such type, and held that it had applied the right test and had reached its conclusions on all the evidence in a manner that could not be impeached.

Trust and Trustee – Gift. The payment of a sum of money by the claimant to the first defendant estate agent for the benefit of a third party, C, was a conditional and incomplete gift. The Queen's Bench Division, held, that, in the absence of further instructions from the claimant, (which there had not been any) a resulting trust of the £42,000 arose upon the transfer of the money into the first defendant's client account, with the first defendant as the trustee and the claimant, as the transferor. The claimant, accordingly, was entitled to the sum of money back at her request.

Criminal law – Murder. The way in which a jury note had been answered had not been inadequate and the first defendant's murder conviction was not unsafe. The Court of Appeal, Criminal Division, further held that the defendants' sentences of life imprisonment, with a minimum term of 30 years for murder, concurrent to five years and six months for doing an act tending or intended to pervert the course of public justice for attempting to dispose of the body by fire, had not been either wrong in principle or manifestly excessive, in particular, the starting point of 30 years in setting the minimum term for murder.

Employment Tribunal – Procedure. Giving permission for the instant decision to be cited in future case, applications for permission to appeal a decision of the Employment Appeal Tribunal (the EAT), setting aside a decision of the employment tribunal to the effect that an already anonymised judgment should not go on the register, were refused, and the EAT's decision that its judgment and that of the tribunal go on the register were upheld. The Court of Appeal, Civil Division, in so deciding, held that, putting aside national security, there was no explicit power in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 1237/2013, to prohibit publication of a judgment altogether.

Sentence – Goodyear indication. It was clear that the defendant had not pleaded guilty in response to the Goodyear indication within a reasonable period, such that the indication had ceased to have effect. Accordingly, the Court of Appeal, Criminal Division, held that sentence of 53 months' imprisonment for two burglary counts, to run concurrently, 2 months' imprisonment concurrent for the assault occasioning actual bodily harm and 4 months' imprisonment concurrent for the assault by beating had not been manifestly excessive or wrong in principle.

Planning – Development. The first part of para 172 of the National Planning Policy Framework (the NPPF), in relation to development in an AONB, national park or the Broads, qualified as a policy falling within the scope of the presumption in favour of sustainable development for decision-taking to be applied under limb (i) of para 11(d) of the NPPF; it was also capable of sustaining a freestanding reason for refusal in general development control in AONBs, national parks and the Broads. The Planning Court, in dismissing the claimant company's application, further set out a practical summary to assist practitioners in the field.

European Union – Copyright. Article 2(c) of Directive (EC) 2001/29 should, in the light of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the phonogram producer's exclusive right under that provision to reproduce and distribute his or her phonogram allowed him to prevent another person from taking a sound sample, even if very short, of his or her phonogram for the purposes of including that sample in another phonogram, unless that sample was included in the phonogram in a modified form unrecognisable to the ear. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings concerning the use, in the recording of the song 'Nur mir', composed by the second and third applicants and produced by the first applicant company, of an approximately 2-second rhythm sequence from a phonogram of the group Kraftwerk, of which the first respondent and another were members.

European Union – Copyright. Article 5(3)(c), second case, and (d) of Directive (EC) 2001/29 should be interpreted as not constituting measures of full harmonisation of the scope of the exceptions or limitations which they contained. The Court of Justice of the European Union so held, among other things, in a preliminary ruling in proceedings concerning the applicant company's publication on its website of a manuscript by the respondent and of an article published in a book, and the respondent's challenge to the making available of complete texts of that manuscript and that article on the applicant's website.

Practice – Pre-trial or post-judgment relief. Although a re-trial of a 13-day Commercial Court trial would place a heavy burden of costs and additional stress on the parties, the Court of Appeal, Civil Division, held that it was the correct approach to take. The judgment had failed properly to analyse the witness and documentary evidence on a number of critical issue, failed to address issues that had arisen at trial and had given limited reasoning.

Fire brigade – Governance. To show that a proposal was 'in the interests of economy, efficiency and effectiveness', within s 4A(5) of the Fire and Rescue Services Act 2004, it was necessary to show that it was in the interest of each of those objectives, and those three matters could not be considered 'in the round'. The Administrative Court held that, although the defendant Secretary of State had applied the wrong test in deciding to approve a proposal to transfer the governance of the claimant Fire and Rescue Services to the interested parties, it was inevitable she would have come to the same conclusion had she applied the correct test.

Damages – Measure of damages. The first and second claimants would be each awarded £155,000, and the third claimant £104,000 in damages for malicious prosecution and misfeasance in public office. In particular, the Queen's Bench Division, held that exemplary damages were required to highlight and condemn the egregious and shameful behaviour of a senior and experienced police officer who had been de facto prosecutor.

Education – Local education authority. The respondent Welsh Minister, as part of fulfilling his powers and duties under Learning and Skills Act 2000, published a policy (the Policy) setting out how placement decisions would be taken for young people with learning difficulties at specialist educational establishments. The Court of Appeal, Civil Division, held, that the policy was not unlawful and had not acted as an unlawful fetter of the discretion of the Welsh Minister when making decisions about the appellant's (a young adult with severe and complex learning difficulties) education needs.