The Court of Appeal has allowed an appeal on the ground that the High Court judge made an ‘erroneous finding’ which could properly be described as an ‘irregularity in the proceedings’. The judge wrongly found that documents submitted as evidence did not show important ‘discount information’ even though the Court of Appeal found this to be plain from the face of the documents. The decision was therefore unjust under CPR 52.11(3) and should be remitted to the High Court to be re-tried by a different judge.

Local Government analysis: The Court of Appeal has allowed Derby City Council’s (DCC’s) appeal concerning an order for interim relief granted in the context of a judicial review claim against it. While the court dismissed the first ground, the second ground of appeal succeeded, with the court finding that the judge had erred ‘in considering that the provision of accommodation by Manchester City Council was precarious, and [the judge] ought to have held there was no real risk that the claimant would cease to be accommodated as a child pending resolution of the judicial review proceedings’ so that the balance of convenience came down against ordering interim relief against DCC. This case provides a comprehensive analysis of the relevant principles and case law concerning applications for interim relief in a judicial review claim, and specifically interim relief age assessment cases. Written by Nicola Wheater, associate at HCR Law.

Private Client analysis: The Court of Appeal allowed an appeal against an order striking out a claim for breach of trust under CPR 3.4(2)(a). The appeal had been advanced on the grounds that the court below erred by 1) finding that the claimant had failed to sufficiently plead a case of dishonesty to overcome a trustee exoneration clause and 2) granting reverse summary judgment. Written by Alex Cisneros, barrister at Outer Temple Chambers.

DR analysis: The Court of Appeal has granted permission to rely on new evidence and to amend the grounds of appeal. It has also granted permission to appeal in relation to those two new grounds of appeal. In doing so, it found the justice of the case ultimately required it to grant the application as, in the circumstances of this case, it had been incumbent on the claimant to ‘lay its cards very clearly on the table’, something it could not be said to have done here.

Tax analysis: In St Patrick's International College & Ors Ltd v HMRC, the Court of Appeal held that the UK’s exclusion of alternative higher education providers (Alternative Providers) from the education VAT exemption found in Group 6, Schedule 9 of the Value Added Tax Act 1994 (VATA 1994) infringed the principle of fiscal neutrality

Dispute Resolution analysis: In this case, the appellant defendants, Grain House International, and its CEO, Elhachmi Boutgueray, had flouted various court orders enforcing payment of a contract debt. At first instance, Mrs Justice Cockerill had found both the defendants liable on several grounds of contempt, and imposed a fine of £75,000 against the company while sentencing Mr Boutgueray to committal for one year. The defendants appealed all the judge’s findings of contempt on all counts. The appellants had not observed multiple court orders and the Court of Appeal was required to evaluate the correct approach to be taken in several discrete areas of the law on contempt of court. This included the correct penalties for unwarranted redaction of documents (Contempt 1), partial failure to disclose (Contempt 2), non-disclosure of the equitable ownership of property (Contempt 3), breach of a worldwide freezing order (Contempt 4) and personal liability of directors for their company’s civil contempt (Contempt 5). Written by Natalie Todd, and Samuel Peters, partners of Cooke, Young & Keidan LLP.

The Court of Appeal has reiterated that the court has a discretion under CPR 3.1(7) to amend court orders and whilst there is no exhaustive definition as to when this will apply the two categories set out in Lloyds Investment reflect the main circumstances when it can be invoked. However, the Court of Appeal held it may also be invoked where a court fails to take something into account when making an order. This must be due to a genuine oversight by the parties and must be something the court had not previously considered. If the applicant acts promptly the court has a discretion under CPR 3.1(7) to vary or revoke the order that had been made. ‘Prompt’ was not defined but is likely to be considered in terms of days.

The Court of Appeal has reiterated that the court has a discretion under CPR 3.1(7) to amend court orders and whilst there is no exhaustive definition as to when this will apply the two categories set out in Lloyds Investment reflect the main circumstances when it can be invoked. However, the Court of Appeal held it may also be invoked where a court fails to take something into account when making an order. This must be due to a genuine oversight by the parties and must be something the court had not previously considered. If the applicant acts promptly the court has a discretion under CPR 3.1(7) to vary or revoke the order that had been made. ‘Prompt’ was not defined but is likely to be considered in terms of days.

Tax analysis: In HMRC v Altrad Services Ltd and Robert Wiseman and Sons Ltd, the Court of Appeal held that, on a purposive construction of the legislation, a tax scheme intended to generate additional capital allowances was ineffective as the taxpayers did not ‘cease to own assets’ (within the meaning of section 61(1)(a) of the Capital Allowances Act 2001 (CA 2001)).

Employment analysis: In Tesco Stores Ltd v K Element, the Court of Appeal held that, in large-scale equal pay litigation, an employment tribunal (ET) was entitled to treat detailed employer training materials as the primary evidential source for determining the ‘work’ done by claimants and comparators for the purposes of sections 64 and 65 of the Equality Act 2010 (EqA 2010). The court rejected Tesco’s argument that the tribunal had erred by focusing on what Tesco required employees to do, rather than what they did in practice. However, the Court allowed Tesco’s appeal on a narrower point, holding that the tribunal had no power under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, SI 2013/1237, Sch 3, r 6(1)(a) to depart from facts agreed between the parties. The decision provides important guidance on the conduct of stage 2 equal value hearings and the management of mass equal pay claims.

PI & Clinical Negligence analysis: The claim arose from the 1982 Hyde Park bombing. The defendant, though never convicted, has been held in other courts to have been involved as a perpetrator. The claimant is the daughter of a victim of the bombing. She was in Hyde Park at the time, heard the explosion, and saw horrendous injuries in the aftermath. She later discovered that her father had been killed. She suffered significant secondary psychiatric injury as a result. But she was four years old at the time, with a child’s understanding of events, and the law is severely restrictive of claims of this nature. Did she have or need a sufficient degree of appreciation of the risk to her father to come within these requirements? In so far as there was uncontroverted expert evidence to the effect that she did have such appreciation, was it open to the trial judge to depart from it? Written by Robert Parkin, barrister at Deka Chambers.

Public Law analysis: The Court of Appeal has awarded an appellant (ABB) the entire costs of his judicial review claim made against the Home Secretary (SSHD). ABB appealed against an order of the Upper Tribunal (the 5 August 2024 order) made at the conclusion of the judicial review proceedings that the SSHD pay 75% of ABB’s reasonable costs. On 7 March 2022, ABB submitted an application for entry clearance under the Ukraine Family Scheme (UFS) to join his elder brother in the UK. On 9 April 2022, he submitted an application for entry clearance under the Homes for Ukraine Scheme (HUSS) to join a named sponsor in the UK. On 6 July 2022 the SSHD refused both applications and ABB filed a claim for judicial review of the refusals. The SSHD eventually agreed to issue a visa outside of the Immigration Rules on an exceptional basis and the Upper Tribunal awarded ABB 75% of his costs. Upon appeal, the Court of Appeal then awarded ABB all of his costs. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square Chambers.