Latest Cases

Registration of land – Land Register – Rectification of register – 'Proprietor in possession'. Court of Session: Refusing an appeal against a decision of the Lands Tribunal which found that there was an inaccuracy in the Land Register which should be rectified in favour of the respondent by removing a disputed area of land from the appellants' title, the court rejected a contention that the appellants did not have title and interest to pursue the appeal but held that they were not 'proprietors in possession' of land in terms of s 9(3) of the Land Registration (Scotland) Act 1979, thus preventing any rectification in the absence of their consent.

Value added tax – Claim to recover overpaid output tax – Taxable amount. Court of Session: Allowing an appeal by HMRC in a case in which a taxpayer which charged a fee for participation in bingo sessions recalculated its liability to tax in accordance with a business brief published by HMRC and made a retrospective claim for overpayment of tax, HMRC rejected the claim but the First-tier Tribunal upheld the taxpayer's appeal and the Upper Tribunal refused HMRC's appeal against that decision, the court held that the taxpayer's claim to recover overpaid VAT beyond the 4-year period permitted by s 80 of the Value Added Tax Act 1994 was based ultimately on the rights conferred by reg 38 of the Value Added Tax Regulations 1995 and reg 38 did not apply to the taxpayer's claim: in relation to that claim all that was involved was a readjustment of the manner in which the taxpayer calculated its VAT, and that could not be considered to be a 'decrease in consideration for a supply' within the meaning of reg 38.

Local government – Valuation – Valuation for rating – Alterations to valuation roll. Court of Session: Allowing an assessor's appeal in a case in which a ratepayer had appealed to a valuation appeal committee, maintaining that the entry in the 2010 valuation roll for its canal undertaking should be altered because it contained error of measurement and the Committee had rejected that submission but allowed the appeal on a basis not argued for, namely that there was a clerical or arithmetical error in the entry, the court held that the Committee's decision was procedurally unfair, however as the ratepayer conceded that there was no clerical or arithmetical error the problem the procedural unfairness gave rise to was no longer a live issue; the ratepayer should not be allowed to argue that the Committee erred in rejecting its error of measurement argument as the answers to the grounds of appeal provided no indication that it challenged any aspect of the Committee's decision; and in any event the merits of the proposed ground of challenge were ill-founded.

Nuisance – Noise. The judge could not be faulted in his findings of fact, including that a floor laid as part of renovation works to the first defendant leaseholder's flat was not a suitable floor to prevent the transmission of noise and was worse than the floor which had been there before the works. Accordingly, the Chancery Division dismissed the first to third defendants' appeal against an order that, among other things, awarded damages against the first defendant for breach of contract and the first to third defendants for nuisance arising from noise disturbance to the claimant leaseholder's flat.

Criminal law – Private prosecution. It had not been irrational for a properly directed and informed Crown Prosecution decision-maker to take over the claimant's private prosecution of the interested party, under s 5 of the Public Order Act 1986, and discontinue it. Accordingly, the Divisional Court dismissed the claimant's challenge to the defendant Director of Public Prosecutions' decision, based on the view that the words the interested part had used were not 'abusive', within the meaning of s 5, so that a prosecution was more likely than not to fail.

Restraint of trade by agreement – Employer and employee. The claimant company (Freshasia) was granted a limited injunction until trial, prohibiting the defendant former employee from soliciting the custom of, selling or delivering to any person who had been: (i) a Freshasia customer to whom the defendant had personally sold and/or delivered Freshasia's products on its behalf; or (ii) whom the defendant had introduced to Freshasia or approached on Freshasia' behalf. However, the Chancery Division declined to make an order in respect of a separate non-compete provision.

Medical practitioner – Professional conduct committee. Matters concerning the claimant general practitioner's probity had plainly amended the existing allegation of impairment as to record-keeping and had not amounted to a new allegation. Accordingly, the Administrative Court dismissed the claimant's application for judicial review of the decision of the defendant General Medical Council's Investigation Committee, considering that it was in its powers to admit new evidence and that it was fair to adduce it, even though it had not formed the basis of a letter or the claimant's response.

European Union – Value added tax. The First-tier Tribunal (Tax Chamber) had been right to hold that the single supply of services to the appellant taxpayer of an integrated trading, portfolio management and risk reporting software application amounted to fund management, within the meaning of that term for the purposes of art 135.1(g) of Council Directive (EC) 2006/112. However, the case law of the Court of Justice of the European Union (the CJEU) was not clear on the issue of whether the consideration for those services could be apportioned in circumstances where they were used to manage both special investment funds and other investment funds. Accordingly, the Upper Tribunal (Tax and Chancery Chamber) stayed the appeal on the basis that the parties should seek to agree both the question or questions to be referred to the CJEU.

Income tax – Taxpayer notice. The judge had been correct to decide that the defendant Revenue and Customs Commissioners (HMRC) had been entitled to argue that all questions of validity of a taxpayer notice had been determined by an agreement under s 54 of the Taxes Management Act 1970 and could not be revisited by the claimant. Accordingly, it dismissed the claimant's appeal against the judge's decision, dismissing its application for judicial review of HMRC's refusal to provide or delete any information, analysis and work product derived from the material provided pursuant to the notice.

Personal injuries – Expert evidence. Both parties would be granted permission to rely on expert life expectancy evidence in the claimants' personal injury claim against the defendant following his traumatic brain injury and orthopaedic injuries. The Queen's Bench Division held that there was a basis for concluding that such evidence might assist the trial judge in the case, given the number of potential co-morbid factors in issue and given that consultant neurologists had not so far felt able to address them all.