Pensions analysis: The Court of Appeal has unanimously dismissed the employer’s appeal against a key aspect of the 2023 High Court judgment in Virgin Media Ltd v NTL Pension Trustees II Ltd that an actuarial confirmation is a necessary condition when changes to pension scheme benefits are proposed that might affect ‘section 9(2B) rights’, being contracted out rights that accrued between 6 April 1997 and 5 April 2016. David Everett, partner at Lane, Clark and Peacock reports on the background to this case and its implications. This article is based on recent reporting in LCP’s Pensions Bulletin.

Private Client analysis: A beneficiary of a deceased’s estate challenged the entitlement of a solicitor, acting as executor, to charge fees for the time spent by him in the administration of the estate. The Will contained no provision entitling him to charge such fees, and so the solicitor sought to rely either on section 29 of the Trustee Act 2000 (TA 2000) or on the court’s inherent jurisdiction to permit such remuneration. The Court of Appeal held that TA 2000, s 29 did not apply since one of the other executors appointed by the Will had not agreed in writing to the remuneration (even though he was not a proving executor and had taken no part in the administration of the estate). Furthermore, it was a permissible exercise of the judicial discretion of the Costs Judge to rule that in the absence of any relevant evidence filed by the solicitor, he was not able to exercise the inherent jurisdiction in his favour. Written by Samuel Laughton, Barrister at Ten Old Square.

Planning analysis: In Cab Housing v SSLUHC, the Court of Appeal upheld the High Court’s dismissal of a statutory review of an inspector’s decision dismissing an appeal against a local planning authority (LPA)’s refusal to grant prior approval for the addition of a single storey to an existing single-storey dwelling. The decision confirms that LPAs can take a liberal approach to the scope of factors they consider when deciding whether to grant prior approval and exercise their planning judgment within the constrains of the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596 (the GPDO).

Tax analysis: In HMRC v Sintra Global Inc and another, the Court of Appeal considered whether the burden of proof falls on the taxpayer or HMRC in a penalty appeal where the taxpayer seeks to challenge the penalty on the basis that the underlying tax liability is wrong.

Commercial analysis: The Court of Appeal has clarified the interpretation of conflicting dispute resolution clauses. Where inconsistent provisions (for example, conflicting arbitration and jurisdiction clauses) are contained within the same document, the document must be read as a whole, with effect given to all clauses if possible. However, this principle has limited application where the conflicting clauses are in different documents and governed by a hierarchy provision or 'confusion clause'. In that instance, (as in this case), where the clauses are inconsistent the hierarchy clause will apply. This significant judgment highlights the value of a clearly drafted express hierarchy provision in cases of conflict. Written by Harriet Campbell, senior knowledge lawyer at Penningtons Manches Cooper.

Employment analysis: Failure to invoke early conciliation (EC) and obtain an EC certificate before issuing a claim deprives the employment tribunal of jurisdiction over that claim. So where a claimant has failed to comply with the early conciliation (EC) requirement set out in section 18A of the Employment Tribunals Act 1996 in relation to a detriment claim, but the employment tribunal did not reject the claim under either Rule 10 or 12 of the ET Rules 2013 (now Rule 12 or 13 of the ET Rules 2024), the EAT was wrong to find that the employment tribunal had jurisdiction to entertain the detriment claim as originally presented. However, in the particular circumstances of the case, the employment tribunal properly granted permission to amend to allow the claimant to pursue the identical claim, meaning the claimant was entitled to pursue the detriment claim, according to the Court of Appeal.

Planning analysis: In Blacker v Chelmsford City Council, the Court of Appeal dismissed an appeal against a High Court’s decision dismissing a claim for judicial review against a local planning authority’s refusal to grant permission for a housing development. The court found that the Planning Committee was entitled to go against its earlier resolution to grant permission and confirmed that a planning decision does not take effect until it is notified to the applicant, not on a Planning Committee’s resolution.

TMT analysis: This case centres around the Court of Appeal’s interpretation of a software services agreement, specifically the wording around limitation of liability. In particular, the court considered three main questions for the purposes of calculating quantum—the amount to which the contractual liability cap should be applied; whether the liability cap should be applied after considering set-off, or before; and whether the cap covers contractual interest. The court held that the cap should be applied to the total liability owed by each party to the other, separately, and not to the amount of both parties’ liability added together. Secondly, the court clarified that the cap should be applied before making adjustments for set-off. Thirdly, interest did not fall within the cap on the basis of an express term of the agreement stating that interest is the sole and substantial remedy for late payment (and is therefore separate). On the basis of its conclusions above, the court determined that total liability amounted to €4.2m, and not €5m as the High Court had previously established. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

Planning analysis: In Titchfield v SSHCLG, the Court of Appeal clarified the correct interpretation of section 57(4) of the Town and Country Planning Act 1990 (TCPA 1990), holding that the statutory ‘counterfactual’ requires the decision-maker to disregard the unlawful development when identifying lawful fallback uses. The inspector was found to have erred by relying on the creation of a new planning unit and material change of use-matters arising from the very breach under enforcement.

Information Law analysis: The Court of Appeal has handed down one of the first breach of confidence judgments since the Supreme Court’s decision in Lifestyle Equities v Ahmed. While this decision does not meaningfully consider Lifestyle Equities (indeed, the appellant conceded on one of its grounds of appeal due to that judgment), it provides further clarification on the scope of the primary liability of agents or employees of corporate entities in breach of confidence proceedings. It further considers the state of mind which the claimant must establish to have been held by the defendant to sustain a breach of confidence allegation. The judgment also considers and provides guidance for how to deal with documents disclosed late in proceedings (in this case, after a trial on liability and during disclosure as to quantum), and particularly on whether to provide for a retrial in light of such evidence. Written by Mark Nichols, senior associate at Potter Clarkson LLP.

Planning analysis: In R v Chamdal, the Court of Appeal held that in relation to offences under section 210 of the Town and Country Planning Act 1990 (TCPA 1990), courts may impose deterrent, means-related fines, treating the offence as strict liability with at least negligent culpability where owners fail to check tree preservation order (TPO) coverage and obtain consent. It upheld a £200,000 fine for causing or permitting the cutting down of at least 132 trees as proportionate, stressing that harm includes the scale and amenity/biodiversity impact of felling and that reliance on contractors or the absence of financial motive does not significantly mitigate.

Planning analysis: In this claim, and in the context of a contractual construction dispute, the Court of Appeal considered the approach to be taken in determining whether construction works are to be treated as amounting to demolition for the purposes of section 74 of the Planning (Listed Building and Conservation Areas) Act 1990 (P(LBCA)A 1990) and thereby required conservation area consent. In dismissing the appeal, the Court held that a local planning authority (LPA) is not required to take into account the effect on the character and appearance on the conservation area when determining whether the works amounted to demolition and that its conclusion was reinforced by the decision in Shimizu (UK) Ltd v Westminster City Council. Written by John Litton QC, barrister, Landmark Chambers.