Family analysis: Andrzej Bojarski, barrister in the 36 Group (36 Family), discusses the Court of Appeal’s approach in Brack v Brack regarding the validity of jurisdiction clauses in pre-nuptial agreements, and the scope of the court’s discretionary powers when dealing with an application for financial relief in the face of a valid pre-nuptial agreement.

Information Law analysis: This Court of Appeal judgment ends a long-standing appeal saga involving a fine imposed by the Information Commissioner’s Office (ICO) on a pharmacy company in 2019 for data protection breaches (the first fine of its kind in the UK at the time). The Court rejected the two grounds raised by the appellant and clarified that (1) in the context of enforcement notice appeals the burden is on the appellant throughout and (2) the tribunal judge in the first appeal case had correctly exercised her discretion when attaching weight to the Commissioner’s reasoning for imposing the fine when making her final decision. This case is a helpful reminder that controllers remain fully responsible for ensuring compliant processing of personal data when using subcontractors. Written by Marija Nonkovic, associate at Kemp IT Law.

Dispute Resolution analysis: The Supreme Court held that claims seeking to undermine convictions from a court in another jurisdiction will not always constitute Hunter abuse of process if that other court did not provide the claimant the opportunity to contest the conviction fully. The Supreme Court clarified that Jameel abuse occurs when the claim would not be able to achieve the legitimate aim of vindicating the claimant’s reputation; rather than merely whether the potential costs of pursuing an action might outweigh the damages likely to be awarded. It was confirmed that defendants bear the burden of proof in proving a defence of truth. Any potential difficulties in proving the truth of an allegation must be their risk to run and cannot therefore contribute towards a finding of abuse of process. Finally, the Supreme Court held that considerations relevant to Hunter and Jameel abuse cannot be ‘lumped together’ to ground a general finding of abuse. Written by Dr Anton van Dellen, barrister and Natasha Niccolls, pupil barrister at Fraser Chambers.

Property Disputes analysis: The Tribunal held on review of two telecoms agreements that an agreement with no term certain was a licence even with exclusive possession and rent forming part of the agreement. Here the licence was granted for a minimum of ten years and continued thereafter on a non-periodic basis. A licence will need to follow the telecoms code for renewal or termination rather than a lease still governed by the Landlord and Tenant Act 1954 (LTA 1954) which the Tribunal held was the case for the second agreement. The lease was for 20 years with exclusive possession and requiring rent to be paid by the operator. Written by Katie Briggs, senior associate in Property Litigation at Browne Jacobson LLP.

Property Disputes analysis: The Upper Tribunal was asked to decide on appeal whether On Tower UK Ltd, as assignee of three electronic communications agreements created by licence prior to 28 December 2017, had become a party to those agreements on completion of the assignments. It was held that while the assignee had gained the benefit of the licences on assignment (in that they had the benefit of Code rights granted under the agreements), they did not automatically become bound by the burden. Accordingly, in the absence of a covenant to be bound by and perform the obligations of the agreements, they could not be held to have assumed the burden of the agreements and therefore could not be a party to those Code agreements. Written by Daniel Wright, associate at Browne Jacobson LLP.

On 21 May 2024, Mr Justice Peel, National Lead Judge of the Financial Remedies Court (FRC), published a notice clarifying the process of allocation of financial remedies applications to High Court judge level in the light of the mandatory use of the online portal since January 2023. Nothing in this notice affects the principles of allocation set out at paragraph 3 of the ‘Statement on the efficient conduct of financial remedy hearings allocated to a High Court judge whether sitting at the Royal Courts of Justice or elsewhere’ (the High Court judge level efficiency statement), issued on 1 February 2016.

Property analysis: The Outer House of the Court of Session has ruled that landlords of large commercial sites need only give their tenants the common law 40 days’ notice in a notice to quit to prevent automatic renewal of the lease by tacit relocation. Andrew Smith, associate at Burness Paull, explains the background to the case and practical implications of the judgment.

Property analysis: The Upper Tribunal (Lands Chamber) has given clarification on the form and service of notices in compliance with the 18–month rule in Landlord and Tenant Act 1985, s 20B. The decision also highlights the importance of following the service charge mechanism in the lease in order to be able to recover on-account payments.

TMT analysis: This appeal concerned when the court could conclude that the defence of consent was established on a summary basis in matters of defamation arising from internal grievance and disciplinary procedures. The court considered in depth the applicability of Friend v Civil Aviation Authority and the extent to which the principles set out therein establish a binding precedent. Taking a circumspect view, the court found that a defence of consent as established in Friend should not be extended to grievance procedures and each case will turn on its own fact. Written by Adam Richardson, barrister at 4-5 Gray’s Inn Square.

Information Law analysis: The Court of Justice recently considered conditions for imposing administrative fines on data controllers under Article 83 GDPR in two cases referred by German and Lithuanian courts. The judgments clarified the role of fault when establishing infringement, the link between the responsibility of controllers and processors and the calculation of fines involving group companies. In particular, the Court of Justice held that infringement requires intentional and negligent conduct on the part of the data controller, rather than the mere fact of breach (ie strict liability). It also concluded that controllers are responsible for actions taken by their processors and can be subject to fines even where they have not been involved in any actual processing themselves. Finally, when it comes to the calculation of administrative fines in the context of undertakings, it is the total worldwide annual turnover of the preceding financial year of the undertaking in question that is relevant. Written by Marija Nonkovic, associate at Kemp IT Law.

Reading a request objectively Where a request under the Freedom of Information Act 2000 (FIA 2000) is phrased clearly and unambiguously, the receiving public authority has 20 days to provide the requested information. There is generally no obligation to look for other possible readings of a clear request, or to consider any information which falls outside the scope of a clear request (see Adedeji v Information Commissioner). However, where the request is unclear, for example: • there is more than one interpretation of the request, or • on reviewing the context, where provided, the request becomes ambiguous FIA 2000 provides a public authority with a mechanism to seek clarification to enable it to identify and locate the information requested. In reading the request objectively a public authority needs to be careful to: • avoid missing an ambiguity: ◦ in Berend v Information Commissioner and London Borough of Richmond upon Thames the public authority interpreted ‘all working papers and documents attached to Agendas’ to mean only working papers attached

Restructuring & Insolvency analysis: James Fletcher, barrister at 5 St Andrew’s Hill, discusses Chief Constable of Greater Manchester Police v Wright, a case which helps clarify when permission of the insolvency court is required for proceedings where alleged recoverable property under the Proceeds of Crime Act 2002 (POCA 2002) is included in a bankrupt’s estate.