The court, in dealing with a challenge to jurisdiction and summary judgment application, has clarified the test to apply when determining whether a defendant is resident in the jurisdiction such that there has been valid service. The court will look at the quality of the defendant's use and occupation of the property such that it can properly be regarded as a home, notwithstanding that the principal home may be in another country. The court also reiterated the principles that apply when determining whether a claimant can be granted summary judgment within 14 days of a defendant’s failed challenge to jurisdiction.

Overview of challenges to Egyptian court jurisdiction This Practice Note sets out the legal grounds for challenging the jurisdiction of Egyptian courts. The jurisdiction of Egyptian courts is defined by Articles 28–35 of the Law of Civil and Commercial Procedures (hereinafter the ‘LCCP’). The basis of such jurisdiction is a geographical one where the courts apply the internationally recognised principle of the domicile or residence of the defendant except for in rem disputes relating to interests in property. In rem jurisdiction: if the subject of the action concerns a property, the action must be filed with the court in whose geographical jurisdiction the property is located because it is such court that has the power to seize and hold the property for legal purposes. Therefore, Egyptian courts have jurisdiction over any defendant, whether national or foreigner, who lives or is domiciled in Egypt. See Cour de Cassation, Challenge No. 145 for judicial year 62 (Decision 15 May 2000); and Cour de Cassation, Challenge No. 952 for judicial year 71 (Decision 12 January

Financial Services analysis: While the jurisdiction of the Financial Ombudsman Service (‘FOS’) has been the subject of a number of High Court decisions, in the recent decision of R (on the Application of Assurant) v Financial Ombudsman Service and Others the Court of Appeal considered for the first time the correct approach to be taken when the jurisdiction of the FOS is challenged by way of judicial review. While the Court of Appeal accepted some of the applicant’s submissions regarding the approach of the judge at first instance, the appeal was ultimately unsuccessful. The Court of Appeal also considered the extent to which retailers selling Payment Protection Insurance (‘PPI’) products were acting as agents of the appellant, and therefore the extent to which the FOS could consider complaints for mis-selling. Written by Lucy Tolond and Harriet Quiney, partners at DWF Law LLP.

The nature of disputes as to lifetime dispositions Particularly where an estate appears to be smaller than anticipated, personal representatives (PRs) and beneficiaries often have queries and concerns about dispositions made by the deceased during their lifetime. These dispositions may include gifts, asset sales which appear to have been made at an undervalue, loans on favourable terms, solely owned assets which were transferred into joint names and deathbed gifts. Where the deceased's affairs were being dealt with by an attorney or deputy the focus of investigations may need to include them. Challenging lifetime dispositions There are a number of bases upon which a lifetime disposition may be challenged. Such claims may involve allegations that: • the deceased lacked capacity (including concerns relating to potential abuse by an attorney or deputy) • the deceased was subjected to undue influence, and • the requirements for a valid deathbed gift (donatio mortis causa) were not met The test for capacity to make lifetime gifts and the burden of proof The common law test for establishing mental

This Practice Note explains the key themes and practical considerations to challenging private prosecutions. It should be read in conjunction with Practice Note: Bringing a private prosecution—practical considerations, which provides a practical guide to bringing a private prosecution. Routes to defending private prosecutions The right to bring a private prosecution is an important one in law, and many such prosecutions will be properly brought and managed by the prosecution. However, if this is not the case, the defence has various options available to it to challenge the prosecution. Many of the options will be similar to those available in public prosecutions, however, there are some elements specific to private prosecutions. The defence can challenge a private prosecution at various stages of the proceedings and in various ways including: • in the magistrates’ court, eg by challenging the summons (see further below: Challenging a private prosecution before the summons or warrant is issued in the magistrates' court and Challenging a summons after issue) • in the magistrates’ court or the Crown Court by challenging

Local Government analysis: Decisions made under private law contracts may be challenged by judicial review on standard public law principles. Before making such a decision, public bodies must carry out appropriate investigations, and, give sufficient reasons for the decision to be understood. Where decisions impact on public authority financial budget setting, permission will not be granted where there is any significant delay in process in respect of an application for a quashing order. More latitude will be given in respect of a claim for a Declaration. Written by Paul Ridout, solicitor, partner, HCR Legal LLP.

Restructuring & Insolvency analysis: The court held that when deciding whether to set aside a statutory demand it was not open to the court to take into account any jurisdictional issues. However, the court did provide guidance on what should happen if an application to set aside a statutory demand was dismissed, but there was clearly an arguable case on jurisdiction to be determined if and when a petition for bankruptcy was issued. In such a scenario, the court should ensure that the time from when the creditor is allowed to present a bankruptcy petition, set out in the Order dismissing the application to set aside the statutory demand, provides the debtor with an adequate window in which the debtor could apply for any anti-suit injunction, so that the jurisdictional issue can be tested by the court before a bankruptcy petition is issued. Written by Mark Sands, Head of Personal Insolvency at Opus Business Advisory Group.

Grounds to challenge the company voluntary arrangement An application can be made to challenge the approval of a company voluntary arrangement (CVA) on one or more of these grounds: • that the proposal, or aspects of it, did not constitute a composition or arrangement within the meaning of section 1(1) of the Insolvency Act 1986 (IA 1986) • that the arrangement unfairly prejudices the interests of a creditor, member or contributory of the company • that there has been some material irregularity at or in relation to the meeting of the company or in relation to the relevant qualifying decision procedure (see SIP 6) Although the route to challenging a CVA (or individual voluntary arrangement (IVA)) is via the statutory provisions in IA 1986, the basic principles of good faith and equal treatment (which underpinned the pre-1986 bankruptcy law) assist in shaping those provisions (see Re New Look; although New Look was due to be appealed to the Court of Appeal, the case settled meaning the

As there is no route for a statutory appeal from the coroner’s court, the supervisory jurisdiction of the Administrative Court is of central importance for those seeking to challenge a coroner’s/jury’s decision, conclusion or finding. Judicial review is a review of the decision-making process, not an appeal. Aside from judicial review, the only other way in which a coroner’s conclusion can be challenged is pursuant to section 13(1) of the Coroners Act 1988 (CA 1988), which permits the High Court to order a fresh investigation or inquest where it is necessary or desirable in the interests of justice. This Practice Note explains the circumstances in which decisions, conclusions and findings arising from a coroner’s investigation or inquest may be challenged. It considers the grounds upon which a coroner’s decision may be challenged by judicial review, including decisions concerning whether to hold or resume an inquest, the scope of an inquest and Article 2 engagement, and outlines the procedure for bringing judicial review proceedings in the High Court. It also explains the basis

Is it possible to retrospectively amend a Conditional Fee Agreements (CFA)? In Frade v Radford, the Court of Appeal considered whether to grant permission on this ground. It held that cases such as King v Telegraph, Holmes v Alfred McAlpine Homes and Forde v Birmingham CC provide ample authority for the proposition that there is nothing wrong in principle with a retrospective Conditional Fee Agreements (CFA). While Kellar made it clear that a variation in the charging basis as between receiving party and his solicitor made after the relevant order for inter partes costs has been made is

Dispute Resolution/Public Law analysis: The Court of Appeal’s judgment involves an issue that some critical observers would term a manifestation of ‘judicial overreach’. It concerns the court’s ability to make orders affecting claims that are either not immediately before the court or which have not yet been commenced. It also includes a successful challenge to an order directing government ministers to amend or to update policy statements that they have published. These issues arose in the context of CLOSED material proceedings (now resolved) affecting the operation of two resettlement schemes for categories of individuals requiring to be moved out of Afghanistan to live in the United Kingdom on safety grounds. The second of the schemes arose as a result of a previously not revealed, but now-publicised, data breach about those individuals within the first scheme, potentially threatening their safety. The Court of Appeal’s judgment is an OPEN document although some previously CLOSED judgments are referred to in it.

Corporate Crime analysis: The decision of R (on the application of Hillary Smith) v Director of Public Prosecutions in the High Court provides important guidance on the relevance of inquest verdicts to the Crown Prosecution Service’s (CPS) decision on whether or not to prosecute; the approach the courts will adopt in judicial review proceedings when assessing the reasonableness of the CPS’s application of the two-stage test in the Code for Crown Prosecutors, and the elements of the offence of gross negligent manslaughter. The jury at the coroner's inquest had returned a verdict of unlawful killing, however, despite this verdict, the CPS decided not to prosecute saying the inquest verdict in itself cannot be taken as a foundation for criminal proceedings because that decision was made on the balance of probabilities. The CPS had to consider whether a jury could be sure on the criminal standard which required a different approach. Furthermore, the court explored the latitude that should be afforded to decision makers. The decision of a crown prosecutor in the application of the full code test is susceptible to judicial review but this allows room for contextual factors to make a difference, such as the specialist skills of the CPS reviewing lawyer when exercising their judgment. Written by Ben Brandon, partner at Mishcon de Reya LLP.