Latest Cases

Medical practitioner – Disciplinary committee. The Medical Practitioners Tribunal (the MPT) had been entitled to rule that, in proceedings before it, adverse inferences from silence or a failure of a charged registered practitioner to give evidence were permissible. The Divisional Court, in dismissing the applicant registered medical practitioner's judicial review action challenging that decision, held that it was open to the MPT to draw adverse inferences from the failure of a charged registered practitioner to give evidence, including in an appropriate case, the inference that he had no innocent explanation for the prima face case against him, subject to such an inference not being procedurally unfair.

Practice – Pre-trial or post-judgment relief. The first defendant's application to vary a previous freezing order to enable payment to be made to a property company would be permitted. The Chancery Division held, amongst other things, that the sum sought was not a large sum in the scale of the litigation. On the facts, it was to be made in order to preserve a planning position and was in no way untoward, but was instead entirely reasonable, and a payment that the court ought to permit.

Lending and security – Calling-up of security. Sheriff Appeal Court: Allowing an appeal against a sheriff's decision that the respondents had validly served a calling-up notice in respect of their security, a standard security over the appellant's property, the court held that the respondents' service of the calling-up notice on the Extractor of the Court of Session was invalid as it did not follow on from any of the three conditions referred to in s 19(6) of the Conveyancing and Feudal Reform (Scotland) Act 1970: as the calling-up notice was not served strictly in accordance with the provisions of s 19(6) it rendered the subsequent procedure inept, and the respondents' summary application incompetent.

Criminal law – Driving offences. Using a hand-held mobile telephone or device for the purposes of s 41D of the Road Traffic Act 1988 and reg 110 of the Road Vehicles (Construction and Use) Regulations 1986, SI 1986/1078, was restricted only to the use of an interactive communication function. Accordingly, the Divisional Court held that the Crown Court had been correct to conclude that the respondent's conduct, in filming an accident scene as he drove past it using the camera on his mobile phone, had not amounted to 'using' a hand-held mobile telephone or device for the purposes of s 41D and reg 110.

Criminal law – Costs. The present was not a case where the appellant counsel's observations on the procedure in s 28 of the Youth Justice and Criminal Evidence Act 1999 and the complainant's sexual behaviour in his closing speech had called for the discharge of the jury, as they could have been dealt with by appropriate directions. Accordingly, the Court of Appeal, Criminal Division, allowed the appellant's appeal against a wasted costs order.

Company – Scheme of arrangement - Meeting of creditors. The application by Syncreon Group BV and Syncreon Automative (UK) Ltd for an order pursuant to s 896 of the Companies Act 2006 convening meetings of certain classes of creditors for the purpose of considering, and if thought fit approving, schemes of arrangement proposed to be made pursuant to Pt 26 of that Act, was allowed. The Chancery Division held that: (a) the two classes for each of the two schemes were properly constituted; (ii) and there were no 'roadblock' issues which made it obvious that the court had no jurisdiction or should otherwise refuse to exercise its discretion to sanction the schemes.

Bankruptcy – Sequestration. Sheriff Court: Granting a petition in which the trustee under a trust deed originally granted by the respondent in 2006 sought an award of sequestration of the respondent's estate, the court held that the legislation provided a route for creditor trustees, on the basis of a simple averment that an award of sequestration would be in the best interest of the creditors, to seek and obtain as of right, such an award without the requirement to prove the truth of that averment: the legislation was Human Rights Convention compliant and there was therefore no basis on which it could or should be read down.

Income tax – Self-assessment. The appellant taxpayer had authorised his accountant to act as his agent in his tax matters using Form 64-8, which was downloaded from the respondent Revenue and Customs Commissioners (HMRC) website, which had provided a link to information that stated that certain notices had to be issued direct to a taxpayer. The Upper Tribunal (Tax Chamber) had erroneously held that Form 64-8 had given the taxpayer's agent authority to receive a notice under s 9A of the Taxes Management Act 1970. The Court of Appeal, Civil Division, so held, finding that, interpreting Form 64-8 together with the linked HMRC website page, HMRC had been acknowledging that a formal notice of enquiry was a form that had to be sent to the taxpayer instead of the agent.

Probate – Wills. The judge, refusing to exercise power under s 4 of the Inheritance (Provision for Family and Dependants) Act 1975 to permit the appellant to commence proceedings under s 2 to challenge the distribution of her late husband's estate, had erred in applying a robust approach and holding that the court had to be satisfied that the claim was arguable and there were good reasons justifying the delay. The Court of Appeal, Civil Division, held that, when determining whether a claim should be brought outside the six-month period, the court had to consider all of the relevant circumstances of the case and it was necessary to decide whether the applicant's claim had a real prospect of success rather than a fanciful one, and if the claim had no real prospect of success; the court would not entertain a claim with no merit which was commenced outside the six-month time limit merely because the delays could not be explained and no one was prejudiced.

Proceeds of crime – Confiscation order. High Court of Justiciary: Refusing an appeal by an appellant who pled guilty to a charge of formulating a fraudulent scheme whereby HMRC were induced to pay to claimants £50, 981 not due to them, and of which she received £15,294, the court held that the sheriff had not erred in making a confiscation order in terms of the Proceeds of Crime Act 2002 in which the appellant's benefit from her criminal conduct was identified as £50, 981 rather than £15,294.