Employment – Discrimination. The Employment Appeal Tribunal (the EAT) had erred in, among other things, holding that the Employment Tribunal (the ET) had engaged in an unjustified leap of reasoning in finding that the failure by the respondent NHS foundation Trust to follow its grievance procedure had amounted to less favourable treatment for the purpose of s 13 of the Equality Act 2010. Accordingly, the Court of Appeal, Civil Division, allowed the appellant general surgeon's appeal against the decision of the EAT and restored the order of the ET, thereby allowing his claims for direct race discrimination, victimisation and unfair dismissal.
Police – Complaint against police. The proper discharge of the statutory functions which the respondent Police Service Commission had had required it to make further inquiries into the complaints it had received against a superintendent before recommending him for promotion to the rank of senior superintendent. Accordingly, the Privy Council humbly advised Her Majesty to allow the appellant human rights organisation's appeal against the rejection of its application for judicial review of the decision to recommend the officer for promotion.
Easement – Water. The claimants' action against the Environment Agency for interference with their quasi-easements over an artificial watercourse was dismissed. The Upper Tribunal (Lands Chamber) held that although the basic principle was that there was no natural right to water in an artificial watercourse, there were, however, various cases in which riparian rights had been held to exist in respect of an artificial channel, such as that at issue in the present proceedings. However, on the evidence, there had been no interference with the claimants quasi-easements and accordingly, their claim for compensation failed.
European Union – Consumer protection. Articles 6 and 7 of Council Directive (EEC) 93/13 should be interpreted, first, as precluding an accelerated repayment clause of a mortgage loan contract that had been found to be unfair from being maintained in part, with the elements which made it unfair removed, where the removal of those elements would be tantamount to revising the content of that clause by altering its substance, and, second, as not precluding the national court from compensating for the invalidity of such an unfair term by replacing that term with the new wording of the legislative provision on which it had been based, subject to certain conditions. The Court of Justice of the European Union so held in a preliminary ruling in proceedings concerning the conclusions to be drawn from the finding that an accelerated repayment clause set out in a loan agreement secured by a mortgage concluded between two parties was unfair.
Negligence – Clinical negligence action. The claimant's claim against the defendant GP, alleging clinical negligence concerning a vasectomy, which had resulted in the claimant suffering from chronic scrotal pain, was dismissed. The Queen's Bench Division held that, on the balance of probabilities, the claimant had been adequately informed of a small risk of chronic pain, and of the range of severity and possible effect on lifestyle if it materialised. Accordingly, he had given informed consent for the procedure.
Practice – Pre-trial or post-judgment relief. The claimants' application for summary judgment succeeded, in a claim concerning alleged breaches of trust in a project to purchase property. The Commercial Court held that the first defendant company had no real prospect of successfully defending the claim against it. There was no other reason why the claim for breach of trust should be permitted to go to trial.
Sentence – Fine. The correct categorisation for the likelihood of level A harm arising from outbreaks of legionella in and amongst the defendant company's employees and local population around its place of business in a densely populated urban area was 'medium', and the judge's categorisation of 'high' could not be sustained in the light of the statistical evidence. Accordingly, the fine for those counts would be reduced from £800,000 to £380,000, which together with a fine of £800,000 relating to the explosion in a flocking machine, did not offend against the principle of totality.
Practice – Stay. The proceedings arose from the first applicant tax office's and the second applicant bank's appeals against the decision of the respondent joint special administrators to reject their respective proofs of debt in relation to a company in administration. The Chancery Division held that the first applicant's application to stay its appeal in order to allow the underlying claim, which formed the subject of the proof, to be resolved by the specialist German tax or fiscal courts, would be allowed. It further held that the second applicant's applications for a stay would be declined.
Practice – Summary judgment. The claimant bank's application for summary judgment succeeded, in a claim concerning the alleged failure of the first defendant company (Assam) to pay sums owing under an amended facility agreement (the AFA). The Commercial Court held that, on the evidence, Assam had no realistic prospect of successfully denying at a trial that the disputed four categories of payment had been contractually owed. Consequently, the allegation that the bank had made a misrepresentation as to the principal sum owed, which had induced Assam to enter into the AFA, fell away.
Injunction – Interim. In conspiracy to injure by unlawful means proceedings brought by the respondent cyber-security business against the appellants, that included a rival business, the judge had been correct to grant an injunction restraining the appellants from carrying on penetration testing in-house. However, the scope of the injunction had been too wide insofar as it prevented the appellants from carrying on penetration testing and red teaming by outsourcing, as that was their existing business. Accordingly, the Court of Appeal, Civil Division, dismissed the appellants' appeal against the grant of a springboard injunction in favour of the respondents, save to the extent that the injunction was too wide in its scope.
Income tax – Earnings from employment. There was nothing either in the wording of the Income Tax (Earnings and Pensions) Act 2003 or in the external material on which the taxpayer companies relied that supported their construction of the definition of a 'managed service company' (MSC) provider in s 61B(1)(d) of that Act. Consequently, the Upper Tribunal (Tax and Chancery Chamber) had correctly decided that the company which had set up the taxpayers was an MSC provider, so that the taxpayers were MSCs. Accordingly, the Court of Appeal, Civil Division, dismissed the taxpayers' appeal against the tribunal's decision.
Practice – Contempt of Court. The appellant's contempt of court in breaching a Worldwide freezing orders designed to provide payment to investors by the Financial Conduct Authority was plainly so serious that no sanction other than a significant term of imprisonment could be justified. The sentence of six months had been imposed as punishment for the past breaches, taking into account the admissions made (not at the earliest opportunity) by the appellant. The Court of Appeal, Civil Division, held that on that basis, it could not be said that a term of six months was outside the range reasonably open to the judge.
Environment – Site of special scientific interest. It was accepted that Natural England had a duty under s 28G of the Wildlife and Countryside Act 1981 to take reasonable steps to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which a site of special scientific interest (SSSI) was of special scientific interest. The s 28G duty applied when Natural England made decisions on badger control licences. However, the Administrative Court held, among other things, that in the present proceedings, only some of the sites at issue had special features. Consequently, the claimant's case that in assessing the risks in those sites, Natural England had omitted relevant interest features which could be adversely affected by operations under those licences, had limited success.
Solicitor – Practice. Following an intervention into a solicitor's practice by the Law Society for dishonesty, it could not be said that the words 'all sums of money held by or on behalf of the solicitor or his firm in connection with … his practice or former practice' in para 6(2)(a) in sch 1 of the Solicitors Act 1974 included the right to recover loans made by the errant solicitor from his client account to third parties, prior to the intervention. The Court of Appeal, Civil Division, accordingly allowed the defendant solicitor's appeal.
Damages – Personal injury. The claimant unsuccessfully brought a claim against his GP (the defendant) for damages for alleged clinical negligence. The claimant had contended that, if the treatment provided by the defendant at a consultation had been of a proper standard, the claimant would have been referred urgently to the local NHS mental health services, with the result that he would not have tried to commit suicide or suffered serious neurological injury. The Queen's Bench Division held that the claim failed on breach of duty and causation. It ruled that, on the balance of probability, the claimant had not disclosed current suicidal thoughts and planning to the defendant on the day of the consultation.
Company – Scheme of arrangement. The applicant company's application for the approval of a scheme of arrangement succeeded. The aim of the scheme was to transfer company assets to Ireland, to protect them from the adverse effects of Brexit. The Chancery Division held that the scheme would be sanctioned and the reduction of capital approved.
Practice – Pre-trial or post-judgment relief. The defendant's challenge to the jurisdiction of the English court failed, in a dispute between two Russian businessmen. The Commercial Court held that the claimant had established a good arguable case that the defendant was domiciled in England, the courts of which accordingly had jurisdiction over all of his claims, both in contract and tort.
Divorce – Decree nisi. The Queen's Proctor applied to set aside a decree nisi granted to the parties by the county court, which had later been made absolute, contending that both decrees were void, by reason of non-compliance with s 1(2)(d) of the Matrimonial Causes Act 1973. The application had been made in circumstances where errors had been made by the court staff and the court, and where the parties had, on the strength of the decrees, remarried. The Family Court ruled that the decrees were voidable (not void), that neither decree would be set aside, with the consequence that the decree absolute remained valid and in force, and that the decree nisi should be varied in accordance with FPR 4.1(6) to reflect an amendment to the divorce petition.
Extradition – Specialty. The judge had not made the wrong decision in ordering the appellants' extradition to Poland to be prosecuted for robbery with violence. The Administrative Court rejected the appellants' arguments that the judge had erred in concluding that their surrender: (i) did not contravene s 17 of the Extradition Act 2003; (ii) was not an abuse of process; (iii) was not unjust or oppressive by virtue of passage of time; and (iv) would not be disproportionate in light of their rights under art 8 of the European Convention on Human Rights.