Latest Cases

Contract – Breach of contract. The claimant, Credit Suisse, brought proceedings, claiming €83,196,829 from the defendant company as money allegedly due under an International Swaps and Derivatives Association (ISDA) 2002 agreement (the master agreement) in respect of 11 transactions it had allegedly entered with the defendant. The claimant contended that it had duly terminated the master agreement after the defendant had failed to provide security due under a credit support annex. The Commercial Court held that, notwithstanding that three of the contracts, comprising six of the disputed transactions, had been outside the defendant's capacity and therefore invalid, because of warranties in additional representations in the master agreement, that did not affect Credit Suisse's rights or the defendant's obligations under the master agreement. Alternatively, the claimant was entitled in damages for breach of the warranties to the amount that they could have recovered under the master agreement if all the agreements were valid and binding on the defendant. 

Mental health – Human rights. Court of Session: Allowing a reclaiming motion in judicial review proceedings by a patient who was detained indefinitely in the State Hospital, challenging a decision to implement a comprehensive ban on smoking there, the court held that the Lord Ordinary had erred in holding that the respondents did not have the power to implement the prohibition on smoking under the National Health Service (Scotland) Act 1978, and in holding that art 8 of the European Convention on Human Rights was engaged, or, if it was, that there had been disproportionate interference with the petitioner's rights. 

Costs – Employment tribunal. The employee's claims were struck out and the tribunal judge ordered that he should pay the whole of the employer's costs of the proceedings, to be assessed by the county court. The employee appealed, submitting that the judge had taken into account the substantial bill of costs incurred by the employer's in-house solicitor. The Employment Appeal Tribunal, in dismissing the employee's appeal, held, inter alia, that a receiving party could claim costs where he was legally represented by a qualified employee and that the definition within rule 38(3) of the Employment Tribunal Rules of Procedure 2004 had not placed any artificial restriction on such a claim. 

Solicitor – Disciplinary proceedings. The appellant in-house solicitor for a newspaper appealed against the finding of the Solicitors' Disciplinary Tribunal (the SDT) that he was guilty of failing to act with integrity and knowingly allowing the judge to be misled in the conduct of litigation. The Divisional Court, in allowing the appeal in part, held that the judge had been misled. The SDT, having disavowed making any finding of dishonesty, could not properly proceed to make a finding that the appellant had knowingly allowed the judge to be misled. However, it was inevitable that the SDT would have found him guilty on the basis that he had recklessly allowed the judge to be misled. 

Mental health – Court of Protection. The patient suffered a stroke which left him incapacitated and unable to manage his own affairs. There were two applicants to the court of protection who sought to manage his affairs. The Court of Protection chose the candidate proposed by a support network of friends and neighbours, who represented the status quo in terms of being the persons in whom the patient had placed trust and confidence immediately before he became incapacitated. 

Medical treatment – Withdrawal of treatment. The applicant NHS Foundation Trust sought authority to provide, in the exercise of its clinical discretion, life-sustaining treatment to the first respondent 52 year old man, TH, in a minimally conscious state. The Court of Protection held that the correct course was to adjourn the issue concerning the withdrawal of nutrition and hydration to provide for a structured clinical assessment. It considered TH's views and found that the weight to be given to those views and how they were to be balanced should await the conclusion of that assessment. 

European Union – Rules on competition. The Court of Justice of the European Union (the Court) dismissed the appeal by FLS Plast A/S (FLS Plast) in which FLS Plast had asked the Court to set aside the judgment of the General Court of the European Union in Plast v European Commission (Case T‑64/06) by which the General Court had dismissed in part its action for annulment of Commission Decision C(2005) 4634 final relating to a proceeding pursuant to art 81 EC or, in the alternative, for reduction of the fine which had been imposed upon FLS Plast by that decision. 

Costs – Order for costs. In a personal injury claim brought by the claimant against the defendant doctor in respect of the deceased, the claimant's husband, the claimant was successful in respect of some issue and not in respect of others. Nevertheless the claimant submitted that she was entitled to all of her costs. The Queen's Bench Division taking all matters into account, including the absence of a part 36 offer on the part of the defendant and a later re-amendment by the claimant found that the claimant should have 75% of her costs. 

Human rights – Privacy. The applicant, who lived in the United Kingdom, had severely limited mobility. She had complained to the European Court of Human Rights (the ECHR), alleging that, following the reduction by a local authority of the amount allocated for her weekly care, there had been a violation of her right to respect for private and family life contrary to art 8 of the European Convention on Human Rights. The ECHR upheld the applicant's complaint in respect of the period between 21 November 2008 and 4 November 2009 because the interference with her rights during that period had not been in accordance with domestic law. However, the complaint concerning the period after 4 November 2009 was inadmissible on the ground that the interference with the applicant's rights during that latter period had been 'necessary in a democratic society', pursuant to art 8(2) of the Convention. 

Children's hearing – Right to challenge decision of children's hearing. Court of Session: In appeal against a sheriff's refusal of an appeal to her against a decision of a children's hearing as incompetent, the court held that the sheriff was fully entitled on the facts found by her to hold that the appellant was not a 'relevant person' within the meaning of s 93(2)(b) of the Children (Scotland) Act 1995, and thus did not have the right to challenge the decision of a children's hearing through an appeal to the sheriff and, ultimately, to the Court of Session.