Latest Cases

European Union – Reference to European Court. The Court of Justice of the European Union considered a request for a preliminary ruling concerning the interpretation of the provisions of the Sixth Council Directive (EEC) 77/388, as amended by Council Directive (EC) 95/7. The request arose during proceedings between the applicant in the main proceedings and the French Minister for Economic Affairs and Finance, concerning the refusal to refund to the applicant the value added tax which it had paid in France for work which had been carried out in France. 

Immigration – Asylum seeker. The First-tier Tribunal (Immigration and Asylum Chamber) (the FTT) assessed the claimant asylum seeker as a minor, but the High Court in distinct judicial review proceedings found that he was not a minor. The Upper Tribunal (Immigration and Asylum Chamber) (the UT) found error in the FTT's decisions and placed considerable weight on the High Court's decision in finding the claimant an adult. The claimant appealed. The Court of Appeal, Civil Division, in dismissing the appeal, held that the UT had not been bound by the High Court's decision, but had been entitled to attach considerable weight to it. However, the UT had not regarded itself as bound by the High Court's decision and had not fundamentally erred. 

Shipping – Cargo. The Commercial Court determined preliminary issues concerning a claim by the claimant owner of a vessel to enforce the terms of a letter of undertaking, which had been provided by defendant time charterer of the vessel to the owners by way of security for the potential liability of cargo interests in general average. 

European Union – Customs and Excise. The Court of Justice of the European Union ruled that art 9(1) of Council Directive (EEC) 92/12, as amended, read in conjunction with art 7 of that directive, should be interpreted as allowing a member state to designate as liable to excise duty a person who held for commercial purposes, on the fiscal territory of that state, products subject to excise duty that had been released for consumption in another member state, in circumstances such as those of the case before the referring court, even though that person had not been the first holder of those products in the member state of destination. 

Family proceedings – Orders in family proceedings. The court dismissed the father's application to discharge care orders in respect of two children, E and N, and granted a placement order in respect of N. Prior to the hearing, the judge had declined to order an addendum report from the psychologist. The father appealed. The Court of Appeal, Civil Division, in dismissing the appeal, held, inter alia, that the refusal of a further report was well within the discretion of the judge and, further, it had not been demonstrated that the judge's conclusion as to the children's best interests had been wrong on the material available. 

Damages – Inquiry as to damages. The claimant, Jodie Henderson, was a singer, songwriter and musician. In earlier proceedings, the court had held that she was entitled to damages from the defendant for the infringement of her performer's rights in respect of a track called 'Heartbroken'. The Intellectual Property Enterprise Court conducted an inquiry as to damages and held that the claimant was entitled to total damages of £35,000. 

Passing off – Descriptive name. The claimant made and sold hair oil under the name 'Moroccanoil' and the defendant sold hair oil, 'Miracle Oil'. The claimant issued proceedings against the defendant for passing off. The Intellectual Property Enterprise Court, in dismissing the claim, held that the evidence did not lead to the conclusion that members of the public were likely to assume either that Miracle Oil and Moroccanoil were the same thing, that they came from the same manufacture or were otherwise linked in trade. Accordingly, the claimant had failed to establish passing off because the evidence had not supported any likelihood of a misrepresentation by the defendant. 

Adoption – Application. The applicant de-facto step-father, who was in a close personal relationship with the mother, applied to the court to adopt her two children. Each child had a different father. The trial judge refused the application and the father appealed. The Court of Appeal (Civil Division) allowed the appeal and held that the judge had fallen into substantial error in his evaluation of the balance of rights under art 8 of the European Convention on Human Rights and, hence, the overall proportionality of making adoption orders. In addition the judge appeared to have misinterpreted the statutory regime under the Adoption and Children Act 2002 and the requirements that it had placed upon him. 

Employment tribunal – Procedure. The employment tribunal refused the employee permission to amend his claim of detrimental treatment due to trade union activities to include a claim of victimisation because, inter alia, the employee had been unable to provide a legal basis for the claim. The Employment Appeal Tribunal held, inter alia, that there was a clear legal basis for the amendment and the tribunal's refusal had been vitiated by error of law. Accordingly, the employee's appeal would be allowed and permission to amend would be granted. 

Solicitor – Negligence. The claimants purchased a yacht, which developed severe problems shortly after purchase. They were assured by the defendant solicitor's firm that a warranty given by the sellers was backed by a personal guarantee, which was not the case. The solicitors accepted negligence but denied that it had had any causative effect. The Commercial Court held that although the claimants had succeeded on liability, they had suffered no loss and were therefore entitled to judgment for only nominal damages.