Latest Cases

Family proceedings – Orders in family proceedings. The appellant father's appeal against findings of a district judge at a case management conference failed. The Family Court held that the district judge had not misapplied the revised FPR PD12J. She had not erred in deciding not to hear an oral application, and to list it for a proper hearing before another judge. Given the time constraints, that could not be said to have been wrong.

Deed – Purchase of property. Following the breakdown of her marriage to her then husband (the respondent), the appellant sought a declaration that she was the beneficial owner of certain property, and relied on a deed made by the parties in 2001. The respondent argued unsuccessfully before the judge that the 2001 deed was inadmissible because it had been obtained by undue pressure. The judge found that an earlier deed (the purchase deed), which recorded the respondent as the purchaser of the property, was tainted by illegality. The Court of Appeal of Mauritius allowed the respondent's appeal and held that the 2001 deed was not a valid 'contre lettre' and that the purchase deed was not tainted with illegality. The Privy Council, in allowing the appellant's appeal, held that nothing in the Court of Appeal's decision had impugned the factual basis on which the judge had found that the purchase of the property had been tainted by illegality, and that the Court of Appeal had been wrong to decide otherwise. Accordingly, the appeal was allowed and the judge's order for the sale of the property was restored.

Extradition – Prohibition on torture. There was a very strong probability that, if extradited to the relevant region of the Russian Federation, the appellant would be held in conditions which involved serious violations of art 3 of the European Convention on Human Rights and the absence of any effective independent monitoring of prison conditions in the area further increased that probability. Accordingly, the Divisional Court allowed the appellant's appeal against the judge's decision to send his case to the Secretary of State to decide whether he was to be extradited to face allegations of three offences of fraud.

Misrepresentation – Negligent misrepresentation. The claimant company's claim failed, in a dispute concerning the provision of advice by the defendant bank. The Commercial Court held that there had been no misrepresentation by the bank's representative (B) in a conversation following which the claimant had entered into a new hedging agreement with the bank. Further, B had not acted negligently.

Insolvency – Cross-border insolvency. It would be wrong to use the powers in art 21(1)(a) and (b) of Sch 1 to the Cross-Border Insolvency Regulations 2006, SI 2006/1030, or other provisions of the UNCITRAL Model Law, to circumvent the English law rights of the English creditors under the rule in Gibbs & Sons v Société Industrielle Et Commerciale Des Métaux ([1886-90] All ER Rep 804). Accordingly, the Court of Appeal, Civil Division, in dismissing the appellant foreign representative's appeal, held that it had no power to direct that the claims of the English creditors should continue to be stayed indefinitely, even after restructuring had come to an end.

Criminal law – Entrapment. There was no arguable case of entrapment on the facts, and no arguable case that there was any material difference between English law and the European Court of Human Rights jurisprudence such as to cast any doubt on R v Looseley; Attorney General's Reference (No 3 of 2000) ([2001] 4 All ER 897) complying with art 6 of the European Convention on Human Rights. Accordingly, the Court of Appeal, Criminal Division, dismissed the applicant's application for leave to appeal against his conviction for preparation of terrorist acts, but granted permission to cite the case.

Extradition – European arrest warrant. The changes to the European arrest warrants did not alter their status as valid warrants and the provision of further information provided clarification, rather than uncertainty. Accordingly, the Administrative Court allowed the appellants' appeals against orders for their extradition to Germany to be tried for offences related to a revenue fraud only in respect of those offences for which the respondent judicial authority had made clear surrender was no longer sought.

Criminal evidence and procedure – Rape – Judge's charge – Distress – Corroboration of lack of reasonable belief of consent. High Court of Justiciary: Refusing an appeal against a conviction for rape in a case in which the appellant maintained that intercourse was consensual and the complainer that it took place whilst she was so intoxicated that she was incapable of consent, the court rejected a contention that the trial judge misdirected the jury on distress: her directions were erroneous in a number of respects, notably on both absence of reasonable belief and the need to provide corroborated evidence of that absence but those directions were entirely in the appellant's favour and the jury's verdict, based on the complainer's intoxication, would have been almost inevitable standing the state of the proof.

Personal injuries – Limitation of actions – Time bar – Discretion to allow action to proceed. Court of Session: In an action in which relatives of persons killed when a bin lorry driven by the defenders' employee collided with pedestrians sought reparation from the defenders, who pled that the claims in that action were time-barred, the instance of an earlier action raised within the triennium having fallen as the summons was not called within 3 months and a day of its passing signet, the court was in no doubt that the balance of the equities came down in the pursuers' favour and that it should exercise its power under s 19A of the Prescription and Limitation (Scotland) Act 1973 to allow their claims to proceed.

Immigration – Judicial review – Curtailment of leave to remain – Tier 1 (Entrepreneur) visa – Working in breach of conditions. Court of Session: Refusing a reclaiming motion in judicial review proceedings in which a Nigerian national challenged the Home Secretary's decision to curtail his leave to remain for working in breach of the conditions of his Tier 1 (Entrepreneur) visa, the court rejected contentions that the Lord Ordinary, in refusing the petition, had erred, firstly by proceeding on the basis that in order for the petitioner to comply with the conditions of his leave to remain there required to be a connection between the nature of the work he did and the nature of the work he had proposed to do when applying for leave, and secondly by refusing to explore the true nature of the petitioner's employment status.