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In previous posts (here and here) we reviewed the then available permission decisions for Michaelmas Term 2009. In this post we consider the permission decisions in Hilary Term in which permission to appeal was granted by the Supreme Court.
The Supreme Court now provides its own lists of permission decisions: there are, so far, three of these: October 2009 to February 2010; February to March 2010 and March to April 2010. The lists are, unfortunately, not in date order and lists show some substantive appeals as two permission decisions.
These lists are not very user friendly. Is it not possible to have a “live list” of cases in date order – including links to the “Current Cases” and the neutral citation of the decision being appealed against? It would also be helpful if a “Current Case” entry was created every time permission was given. As it is there are some cases where permission has been given and the appeal listed but no “Current Case” entry has been created.
According to the lists there were 59 permission decisions in Hilary Term, with permission refused in 32 cases and granted in 27 (46%). There are two pairs of cases in there were two permission decisions in appeals which were heard together (LB Brent v Risk Management, R v McInerney/R v Rollins and and and one case in which there are three permission decisions (Baker v Quantum Clothing). In other words, the permission decisions related to 55 cases in total.
The cases in which permission has been granted are as follows (criminal cases are marked with an *) – we have not included the case of W (Children) in which permission was given on 17 February 2010, with the hearing on 1 and 2 March, with judgment on 3 March 2010 ([2010] UKSC 12):
Brent LBC v Risk Management Partners [2009] EWCA Civ 490, granted 2 February 2010 (there are two permission decisions here) – the Court held that that Brent Council had power to become a member or participating member of London Authorities Mutual Limited or to make payments or to enter into commitments to make payments to this company.
*R v Rollins; R v McInerney [2009] EWCA Crim 1941; [2010] 1 Cr App R 14 granted 2 February 2010 – the Court held that the Financial Services Authority has power to prosecute offences of money laundering contrary to sections 327 and 328 of the Proceeds of Crime Act 2002.
Joseph v Spiller [2009] EWCA Civ 1075; granted 2 February 2010 listed for hearing , 26 and 27 July 2010. This is an appeal concerning the defence of “fair comment”. We have already posted about the permission application.
R (Electoral Commission) v City of Westminster Magistrates, [2009] EWCA Civ 1078 granted 4 February 2010. This case concerns donations to UKIP by an individual who was not on the electoral roll. We have already posted about the grant of permission in this case.
Baker v Quantum Clothing Group [2009] EWCA Civ 499; granted 24 February 2010 (this comprises three separate decisions). On giving the employers permission to appeal Lords Phillips, Rodger and Kerr ordered that they should pay the costs of the appeal in any event (without uplift or ATE premium). A copy of the Supreme Court’s Order granting permission to appeal can be found here. This is an industrial noise test case on the liability of textile employers in Nottinghamshire and Derbyshire should be held liable in respect of noise induced hearing loss as a result of low level noise. The Court of Appeal allowed the claimant’s appeal and held the employers liable. There was also an unsuccessful application for the recusal of Sedley LJ ([2009] EWCA Civ 566) and an order that two of the respondents bear their own costs regardless of the outcome of the appeal ([2008] EWCA Civ 823). These are not the subject of appeals. The issue on the appeal is whether there is liability under section 29 of the Factories Act 1961. We understand that the matter is listed for 4 days, 23 to 26 November 2010. The claimant’s solicitor, Chris Fry, featured as the “Times” Lawyer of the Week after the successful appeal to the Court of Appeal. We thank Mr Benjamin Pell for his researches into the background to this appeal.
Patmalniece v Secretary of State for Work and Pensions [2009] EWCA Civ 621; granted (oral hearing) 3 March 2010. The case concerns Art 3 of Regulation 1408/71 and the Right to Reside Test and whether the UK provision that all UK and Irish Nationals automatically pass the Right to Reside Test whereas EEA nationals have to be workers, family members of workers etc is discriminatory on the basis of nationality and therefore contrary to Art 3.
Secretary of State for Home Department v AP [2009] EWCA Civ 731; granted 4 March 2010. This is a control order case. The Court of Appeal held that although a 16-hour curfew imposed under a control order could amount to a deprivation of liberty but in the circumstances of the case there was no deprivation. The Court has posted Case Details. The case is listed for hearing on 5 and 6 May 2010.
Southern Pacific Personal Loans v Walker [2009] EWCA Civ 1176 granted 5 March 2010 – the Court held that the credit agreement made between the parties on 20 April 2005 was not unenforceable on the ground of non-compliance with a requirement of the consumer credit legislation. The Court has posted Case Details. The case listed for hearing 13 May 2010.
Child Poverty Action Group v Secretary of State for Work and Pensions [2009] EWCA Civ 1058 granted 5 March 2010. The Court of appeal held that the Secretary of State for Work and Pensions could not resort to common law to recover social security benefit which had been overpaid by mistake.
Willmore v Knowsley MBC [2009] EWCA Civ 1211; granted 4 March 2010. The Court of Appeal held that it was not enough to eliminate one source of exposure to asbestos if another remained in place as there was no safe dose of asbestos. Once exposure above a minimal level was found, a risk of harm was established. As a result the local authority was liable.
Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159; granted 4 March 2010. The Court of Appeal that in a claim for damages for death due to mesothelioma it was sufficient to show that the tortious exposure materially increased the risk of contracting mesothelioma in the sense that the risk was more than minimal.
Farstad v Enviroco [2009] EWCA Civ 1399; granted 5 March 2010. The Court of Appeal considered the meaning of subsidiary in the Companies Act 1985 s.736 in the context of a claim by a contractor that it was entitled to rely on an indemnity clause contained in a charterparty in respect of vessel which had sustained damage.
Global Process Systems v Syarikat Takaful Malaysia [2009] EWCA Civ 1399; granted 5 March 2010. The Court of Appeal held (allowing an appeal from Blair J) that the cause of the loss of the legs of a jack-up rig being towed on a barge round the Cape of Good Hope was not inherent vice but “perils of the sea”.
Revenue and Customs Cmrs v DCC Holdings [2009] EWCA Civ 1165; [2010] STC 80; granted 5 March 2010. The case concerned five repurchase transactions in gilts under which the taxpayer received more than it had paid and held that these did not give rise to an entitlement to relief in respect of a non-trading deficit.
Oceanbulk Shipping v TMT Asia Ltd [2010] EWCA Civ 79 granted 23 March 2010. The case concerned the operation of the “without prejudice rule”. The court had to decide whether the logic of the without prejudice rule required the exclusion of the evidence in question. On the facts, it was more important to preserve the without prejudice principle than to allow it to be breached so as to permit the admission of background facts arguably relevant to construction of a settlement agreement.
KC (South Africa) v Secretary of State for the Home Department [2009] EWCA Civ 630, on 15 March 2010,the Supreme Court remitted the case to the Upper Tier of the Immigration and Asylum Chamber, so that they can determine the issues. The Court of Appeal had held that the Nationality, Immigration and Asylum Act 2002 s.72 had to be interpreted as creating rebuttable presumptions in relation to the relevant requirements of the Convention relating to the Status of Refugees 1951 (United Nations) art.33(2). The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 was ultra vires, as it specified offences which could not sensibly be regarded as particularly serious. The Court has posted Case Details.
Belmont Park Investments v BNY Corporate Trustee Services [2009] EWCA Civ 1160 permission granted on 26 March 2010. The case concerned contractual provisions in the terms of issue of certain loan notes and in joint venture and licence agreements. It was held these were not invalidated by the so-called anti-deprivation rule which operated to prevent a person’s property being transferred and taken away from his creditors on bankruptcy.
Duncombe v Secretary of State for Children [2009] EWCA Civ 1355 – permission granted on 26 March 2010. It was held that an employment tribunal had been right to hold that the inclusion, in employment contracts for teachers in European schools, of the nine-year rule imposed by the Regulations for Members of the Seconded Staff of the European Schools 1996 was not objectively justified by the relevant regulations. But the tribunal was wrong to hold that a teacher in a European school in Germany could not bring an unfair dismissal claim because he worked outside the United Kingdom.
JA (Ivory Coast) v Secretary of State for the Home Department [2009] EWCA Civ 1353 permission granted 26 March 2010. The case concerned the refusal of the Secretary of State to renew the leave to remain of a foreign national who had lawfully entered the United Kingdom and was then diagnosed as HIV-positive. The Court held that Article 8 applied and the question to whether deportation was proportionate had to be considered.
Jones v Kaney permission granted 6 April 2010. “Leap frog” appeal from [2010] EWHC 61 (QB). This was a claim for negligence against an expert witness. Blake J held that as the decision in Stanton v Callaghan [2000] QB 75 was binding on the court and could not be distinguished, there was a defence of witness immunity, and the claim had to be struck out.
Mills v HSBC Trustee (CI) Ltd, (referred to in the list of permission decisions as In the matter of Kaupthing Singer and Friedlander Limited (in administration)) leap frog appeal from [2009] EWHC 3377 (Ch), permission granted 7 April 2010. The issue was whether the administrators were entitled rely on the rule in Cherry v Boultbee (that is, the rule that a person cannot take a share out of a fund unless he first brings into the fund what he owes) in respect of a claim for the payment of an intercompany debt. The Chancellor, Sir Andrew Morritt, held that the administrators were entitled to rely on the rule. Permission was granted for a “leapfrog” appeal. An announcement about the case can be found on the administrators’ website.