The Court of Appeal, in a recent ruling, (MacPherson v Sunderland City Council (Rev1) [2024] EWCA Civ 1579) has furnished clear guidance on the proper method for assessing mental capacity in litigation. The court stressed that capacity assessments should adhere to the two-legged test outlined in A Local Authority v JB[2021] UKSC 52; rather than the outdated Mental Capacity Act Code of Practice (MCA) which utilises the 'functional' test before the 'diagnostic' test.

Public Law analysis: In the case of R (Assurant General Insurance Limited) v the Financial Services Ombudsman (FOS) and others, the Court of Appeal clarified the jurisdiction of the Financial Ombudsman Service (FOS), as well as the respective roles of the courts and the FOS on judicial review. Analysis written by Thomas Clark, partner, Christine Simpson, associate, and Usama Khalab, trainee, of Freshfields Bruckhaus Deringer LLP.

Planning analysis: In Moran v Medway Council, the Court of Appeal held that section 70C(1) of the Town and Country Planning Act 1990 (TCPA 1990) empowers a local planning authority to decline to determine an application where granting permission would involve permitting the whole or part of the matters identified in a pre-existing enforcement notice, even if the earlier breach has already been remedied and the new application is framed prospectively. The court endorsed the view that the provision is directed to preventing duplicate consideration of the planning merits of the enforced breach, not merely to stopping delaying tactics. For practitioners, the case clarifies both the reach of section 70C and the limited intensity of review likely to apply to discretionary challenges.

TMT analysis: The Court of Appeal has dismissed Sky’s appeal against a judgment of the Competition Appeal Tribunal (CAT) confirming that, when considering whether a relevant service is an electronic communications service (ECS) under section 32 of the Communications Act 2003 (CA 2003) on the basis that it is ‘consisting in, or having as its principal feature, the conveyance of signals’ under CA 2003, s 32(2A)(c) (the Principal Feature Test), any content service component must first be excluded before applying the Principal Feature Test to what remains. The court read CA 2003, s 32(2)–32(2A) consistently with Article 2(4) of Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast) (the EECC), confirming that content is excluded first before applying the Principal Feature Test. Written by Marcus Bagnall, partner at Wiggin LLP.

Information Law analysis: This Court of Appeal decision clarifies the approach of UK courts to confidentiality in patent litigation, in particular FRAND cases. Significantly, this judgment recognises the rights of affected non‑parties (eg third party licensees) to be heard by courts on issues of confidentiality. The court clarified the broad scope of confidential information which may qualify for redaction and made clear that licence age or expiry does not automatically negate its commercial value and need for protection. Such information should be eligible for protection, provided that the balancing test can show likely commercial harm resulting from disclosure. A further clarification made by the court was the correct approach for determining the scope of redactions: a single legal test involving a fact‑sensitive balancing exercise between open justice and the risk of real commercial harm. The judgment also addressed corrections of factual errors post‑judgment, confirming that ‘slip‑rule’-based correction requests may be granted in the absence of unanimous party agreement and where the changes involve targeted deletion or substitutions which does not require rewriting of the judgment’s substantive conclusions. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

Family analysis: Siddique Patel, solicitor at Shoosmiths, discusses the decision of the Court of Appeal overturning that of Williams J when he ruled that an Islamic Nikah ceremony could be classed as a void marriage giving rise to financial remedies. The Court of Appeal unanimously found that no marriage ceremony took place in respect of which a decree of nullity could be granted. In coming to its decision, the Court of Appeal replaced the term ‘non-marriage’ usually given to these types of ceremonies, with a seemingly more helpful term, that of it being a ‘non-qualifying ceremony’ which refers to a marriage ceremony falling outside the scope of the Marriage Act 1949 (MA 1949).

Tax analysis: In Dolphin Drilling Ltd, the Court of Appeal allowed HMRC’s appeal, deciding that the ‘hire cap’ under the oil contractor regime applied to restrict the deduction available to the taxpayer for the cost of leasing a tender support vessel.

Planning analysis: In SSLUHC v Caldwell, the Court of Appeal considered the scope of the Murfitt principle whereby an enforcement notice relating to a material change of use can require the removal of operational development. It establishes that the principle only applies where the operational development is ancillary or incidental to the material change of use, rather than amounting to separate development in its own right. Written by Elizabeth Dunn, Partner and Sarah Sutherland, Practice Development Laywer at Burges Salmon LLP.

Dispute Resolution analysis: This important decision considers the extent to which a claimant in a contribution claim must plead and prove the liability of the contribution defendant to the original claimant under section 1(4) of the Civil Liability (Contribution) Act 1978 (CL(C)A 1978). It also considered the extent to which issues of collateral attack can be deployed in defence to a contribution claim. The Court of Appeal held that a contribution claimant is required to prove that the contribution defendant is liable to the original claimant. This clarifies the operation of CL(C)A 1978, s 1(4) which was uncertain in the light of the Court of Appeal's previous decision in WH Newson Holding Ltd v IMI plc & Delta Ltd [2016] EWCA Civ 773 (Newson). Further the court held that a contribution defendant is entitled to rely on a collateral defence to the contribution claim where it was not party to the original proceedings. The court made clear that it will only be in rare circumstances that it will find that a second set of proceedings between different parties is an abuse of process. Written by Laura Stocks, partner at Reynolds Porter Chamberlain LLP.

Property Disputes analysis: The Court of Appeal’s decision in the combined appeals of The Courtyard and 14 Park Crescent provides the first appellate guidance on the meaning of a ‘self-contained part of a building’ under section 72 of the Commonhold and Leasehold Reform Act 2002 (CLRA 2002). The court confirmed that the statutory test requires a genuine physical vertical division and that notional boundary lines cannot create self-containment within open shared spaces such as communal basements or car parks. It also rejected an unduly restrictive approach to independent redevelopment. The judgment establishes a practical framework with implications extending beyond (right to manage) RTM claims to collective enfranchisement, building safety legislation and potential future commonhold reform. Produced in partnership with Sophie Gibson of Landmark Chambers, junior counsel for the Second Respondent in The Courtyard appeal.

Local Government analysis: The Court of Appeal has issued a significant judgment on the scope of local authorities’ duties to children with special educational needs and disabilities, confirming that the duty to maintain an Education, Health and Care Plan (EHCP) will not automatically cease when a child moves out of the local authority’s area. The court also emphasised the fundamental importance of consulting with parents and carers in decision-making in this area. Written by Claudia Hyde, barrister at Landmark Chambers.

Restructuring & Insolvency analysis: The Court of Appeal has confirmed that the authority to bind a firm for the purposes of its winding up (conferred on partners after the dissolution of a partnership by section 38 of the Partnership Act 1890 (PA 1890)) applies to pursuing causes of action which accrued prior to dissolution. Whether PA 1890, s 38 will permit partners of a dissolved partnership to pursue litigation post-dissolution is a fact sensitive question. The question is whether such litigation is reasonably required in all the circumstances to wind up the affairs of the partnership. Relevant considerations are not circumscribed and will include considerations of prospects of success and cost-effectiveness. In Flohr, the Court of Appeal confirmed a general partner of a limited partnership governed by the Limited Partnership Act 1907 (LPA 1907) was empowered to sue a third party on behalf of the partnership notwithstanding the dissolution and winding up of the partnership. This was so even though the relevant cause of action arose prior to dissolution. Written by James Fagan, Barrister, at Radcliffe Chambers.