December 2015

Regina v Harvey (Jack) [2015] UKSC 73; [2015] WLR (D) 539

CRIME — Sentence — Confiscation order

It would amount to a breach of the right to protection of property protected by article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedom for a court to include VAT, which had been accounted for to the revenue as output tax, within the sums “obtained” by a defendant who was subject to a confiscation order under section 76(4) of the Proceeds of Crime Act 2002.

Thevarajah v Riordan and others [2015] UKSC 78; [2015] WLR (D) 540

PRACTICE — Case management orders — Relief from sanctions

When a party was subject to a debarring order for failing to comply with an “unless” order to do something within a specified period because relief from sanctions had been refused at a time when he had been in default, the mere fact that he had subsequently complied with the unless order could not amount to a material change of circumstances entitling him to make a second application for relief from sanctions.

Regina (Roberts) v Commissioner of Police of the Metropolis and another (Liberty intervening [2015] UKSC 79; [2015] WLR (D) 536

POLICE — Powers — Stop and search

Section 60 of the Criminal Justice and Public Order Act 1994, which in specified circumstances permitted a police officer to stop and search any person for offensive weapons whether or not he had any grounds for suspecting that the person was carrying such a weapon, was compatible with the right to privacy under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Regina (Yam) v Central Criminal Court [2015] UKSC 76; [2015] WLR (D) 526

HUMAN RIGHTS – Access to courts – European Court of Human Rights

A trial judge had a discretionary power to prohibit an applicant, who complained that his trial on criminal charges had been unfair, disclosing to the European Court of Human Rights evidence which had been deployed in camera at his trial.

Societe Cooperative de Production SeaFrance SA v Competition and Markets Authority (Groupe Eurotunnel SA intervening) [2015] UKSC 75

COMPETITION — Restriction or distortion of competition — Relevant merger situation

The merger control provisions of the Enterprise Act 2002 were not limited to the acquisition of a business as a going concern. Therefore it did not necessarily follow from the cessation of the ferry service between Dover and Calais that the ferry operator no longer had “activities” so as to constitute an “enterprise” which, when acquired, created a relevant merger situation which lessened competition in the cross-Channel ferry market.

Trump International Golf Club Scotland Ltd and another v Scottish Ministers [2015] UKSC 74; [2015] WLR (D) 524

CONTRACT — Construction — Conditions

The granting of a consent under section 36 of the Electricity Act 1989 for the construction of an electricity generating station was not restricted to holders of a electricity generation licence or persons exempted from holding such a licence.

Although a court would exercise great restraint in implying terms into public documents which had criminal sanctions there was no principled reason for excluding implication altogether.

Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd and another [2015] UKSC 72; [2015] WLR (D) 501

LANDLORD AND TENANT — Lease — Construction

A term would only be implied into a detailed commercial contract if its implication were necessary to give business efficacy to the contract or so obvious that went without saying. Rent payable in advance was not apportionable in time at common law or under statute and, therefore, it would be wrong, save in a very clear case, to attribute to a landlord and a tenant an intention that the tenant should be able, upon termination of the lease under a break clause, to recover rent payable and paid in advance which was attributable to the period after the break date.

Eclairs Group Ltd v JKX Oil & Gas plc [2015] UKSC 71; [2015] WLR (D) 497

COMPANY — Director — Shares

Where a company’s board of directors was entitled under the company’s articles of association to issue a disclosure notice against a shareholder, pursuant to section 793 of the Companies Act 2006, and further entitled, in the event that they knew or had reasonable cause to believe that the statements given in response were incorrect, to restrict the shareholder’s right to attend or vote at any general meeting of the company, any such restriction would be invalid if the board’s purpose in making the restriction had been to prevent the shareholder voting at the meeting.

November 2015

In re J (A Child) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 70; [2015] WLR (D) 486

CHILDREN — Custody rights — Jurisdiction

The jurisdiction conferred by article 11 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) provided additional protection in cases of urgency and its exercise required a holistic approach; although not all child abduction cases were urgent, it was difficult to envisage a case where the court should not consider it to be so and go on to assess whether it was appropriate to exercise that jurisdiction.

Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another (Attorney General for Northern Ireland and others intervening) [2015] UKSC 69; [2015] WLR (D) 487

HUMAN RIGHTS — Life — State’s duty to investigate death

The Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence were not required to hold a public inquiry or similar investigation into the killing, by British soldiers on patrol, of 24 unarmed civilians in 1948 in the State of Selangor, then a British protected state in Malaya.

Regina (Bibi) v Secretary of State for the Home Department (Liberty intervening) [2015] UKSC 68

HUMAN RIGHTS — Respect for family life — Interference with

The requirement in the Immigration Rules for a foreign spouse or partner of a British citizen, who was not a national of one of a number of specified majority English-speaking countries and who did not qualify for certain other exemptions, to produce a certificate of knowledge of the English language to a prescribed standard prior before entry, was lawful, albeit the suitability of the guidance issued in relation to the operation of that rule was open to question.

Cavendish Square Holding BV v El Makdessi [2015] UKSC 67; [2015] WLR (D) 439

CONTRACT — Penalty — Enforceability

There was no justification for abolishing, restricting or extending the rule that a contractual penalty clause was unenforceable.

A contractual clause was penal if it was a secondary obligation which imposed a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation.

Menelaou v Bank of Cyprus plc [2015] UKSC 66; [2015] WLR (D) 438

RESTITUTION — Unjust enrichment — Subrogation

Where a person was given a property by her parents bought with money from the sale of the family home, made possible by a bank having agreed to release its charges over the family home (securing the parents’ borrowing) to allow it to be sold, in return for receiving a lump sum payment out of the proceeds of sale to reduce the borrowing and a fresh charge over the new property to secure the remaining indebtedness, but— because the person had not been told of the fresh charge and it had been defectively executed— the new charge was void, the bank had an equitable interest in the new property to the extent of the value of the purported charge, which it could enforce by means of subrogation to an unpaid vendor’s lien.

October 2015

British American Tobacco Switzerland SA v Exel Europe Ltd [2015] UKSC 65; [2015] WLR (D) 430

CARRIAGE BY LAND — International carriage of goods by road — Jurisdiction

The fact that the English court had jurisdiction under article 31.1 of the Convention on the Contract for the International Carriage of Goods by Road (“CMR”), set out in the Schedule to the Carriage of Goods by Road Act 1965, to entertain an action against one of a series of carriers of the same goods did not enable successive carriers of those goods, in respect of whom the court did not otherwise have jurisdiction under article 31.1, to be joined in the same proceedings.

United States of America v Nolan [2015] UKSC 63; [2015] WLR (D) 441

EMPLOYMENT — Redundancy — Consultation

There was no exception for a foreign state when acting in a iure imperii capacity from the obligation to consult representatives of its employees in England about proposed collective redundancies pursuant to section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 in amending section 188 of the 1992 Act were not ultra vires, but came within section 2(2) of the European Communities Act 1972.

Regina v McGeough [2015] UKSC 62; [2015] WLR (D) 424

CRIME – Evidence – Admissibility

Information which was provided by a person to Swedish authorities in the course of an unsuccessful application for asylum could subsequently be used in evidence in criminal proceedings against that person in the United Kingdom.

Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] WLR (D) 414

IMMIGRATION  — Leave to remain — Points based system

Where a foreign national student’s application for an extension of leave to remain in the United Kingdom under the Tier 4 (general) points system was deficient solely because he had been required to send to the UK Border Agency bank statements showing a specified minimum bank balance for a 28-day period before the application (as proof of funds) but the statement sent in covered only a 22-day period, albeit showing that there was a preceding statement in existence with sufficient funds, the agency should have given him an opportunity to supply the necessary additional statement before dismissing his application.

Shahid v Scottish Ministers [2015] UKSC 58; [2015] WLR (D) 409

PRISONS — Prisoners’ rights — Segregation

On the plain meaning of rule 94(5)(6) of the Prisons and Young Offenders Institutions (Scotland) Rules 2006, decisions imposing segregation orders beyond the initial period of 72 hours could only be made where the ministers’ authority to extend segregation had been given prior to the expiry of the 72 hour period. Failure to observe that requirement rendered such a decision and any subsequent renewals based on it unlawful.

Sharland v Sharland [2015] UKSC 60; [2015] WLR (D) 408

HUSBAND AND WIFE — Financial provision — Consent order

A court in matrimonial proceedings cannot make a consent order without the valid consent of the parties, but if there were a good reason which vitiated a party’s consent that might be good reason for setting aside a consent order. The non-disclosure of a material fact which undermined the whole basis on which a consent order had been made was a vitiating factor which was ground for setting aside the order. A party who had practised deception with a view to a particular end which had been attained by it, could not be allowed to deny its materiality.

Gohil v Gohil (No 2) [2015] UKSC 61; [2015] WLR (D) 407

HUSBAND AND WIFE — Financial provision — Disclosure of material facts

When a judge, through no fault of his, had heard both admissible and inadmissible evidence when allowing a wife’s application to set aside a consent order on the grounds of material non-disclusre by the husband it was necessary to consider whether on the admissible evidence which had been before the judge he would still properly have granted the wife’s application.