Planning analysis: In Haytop Country Park Ltd v Amber Valley Borough Council, the Court of Appeal confirmed that caravan site licensing must operate consistently with the planning regime and cannot override or expand planning permissions or enforcement outcomes. The decision establishes that licensing authorities must take into account the 'planning baseline' set by planning permissions and enforcement notices, ensuring the two regimes work together rather than at cross-purposes.

Dispute Resolution analysis: The Court of Appeal has dismissed an appeal against a decision in which various claims were held to fall outside the scope of a release clause, notwithstanding that they had been included in the initial statement of case in the proceedings which had been compromised by the settlement deed in which the release clause was contained. Written by Phillip Patterson, barrister, Gatehouse Chambers.

Commercial analysis: The appellant played an Instant Win Game (a game of chance whose outcome is predetermined by at the point of purchase) in which at the end of the game, due to a software error, two sets of matched numbers were displayed, one with a £10 prize and one with a £1m prize. The predetermined outcome of the game was a win of £10. The appellant claimed a prize of £1m and sought summary judgment on the claim, arguing that terms on which the defendant relied were not incorporated into the contract and/or were unfair under the Unfair Terms in Consumer Contracts Regulations 1999. Mr Justice Jay dismissed her application and she appealed the decision. The Court of Appeal held that, whether or not the appellant had actually read the terms, the defendant had done what was reasonably sufficient to bring the terms to the appellant’s attention by making them available via hyperlinks and drop-down menus, that the terms were not onerous or unusual, and that on a true construction of the terms, the appellant had not won £1m. The appeal and claim were dismissed. Written by Sophie Ashcroft (partner) and Amba Griffin-Booth (senior associate) of Browne Jacobson LLP who led the defence of the claim against Camelot, supported by counsel, Philip Hinks, from 3VB Chambers.

Information law analysis: The Court of Appeal held that consent under data protection legislation is assessed objectively and does not depend on a data subject’s subjective state of mind, autonomy or personal vulnerability. Allowing the appeal, the court rejected the High Court’s subjective approach and confirmed that the requirements of freely given, specific, informed and unambiguous consent are to be evaluated by reference to the parties’ communications and relationship. The decision provides important certainty for controllers by focusing compliance on evidencing valid consent mechanisms rather than investigating individual vulnerabilities. It also clarifies the limited role of vulnerability in consent analysis while leaving open questions concerning fairness and transparency obligations in vulnerability-sensitive contexts. Produced in partnership with Adam Richardson, barrister of 4-5 Gray’s Inn Square.

Local Government analysis: This case analysis considers the decision of the Court of Appeal in WB (a protected party through her litigation friend the Official Solicitor) v W District Council (Equality & Human Rights Commission intervening) [2018] EWCA Civ 928. The Court of Appeal was called on to consider the situation where a person who lacks mental capacity makes an application for assistance as a homeless person under Part VII of the Housing Act 1996. The question for the Court of Appeal was whether it was bound to follow earlier House of Lords authority for the proposition that only persons with mental capacity can be offered accommodation under Part VII, or whether subsequent legal developments (including the Human Rights Act 1998 and the Mental Capacity Act 2005) entitled the Court of Appeal to reach a different decision. Written by Alexander Campbell, Barrister at Field Court Chambers.

Dispute Resolution analysis: The Court of Appeal dismissed an appeal against a ‘no order as to costs’ ruling made after the defendant had successfully defended claims in conspiracy and conversion. Although the Court of Appeal held that the judge had committed a serious procedural irregularity by refusing to hear submissions on costs after indicating that his earlier view was only provisional, it re-exercised the discretion afresh and reached the same result. This decision is significant because it shows that a successful defendant may still be deprived of costs where their own dishonest conduct gave rise to the proceedings as it fuelled the claimant’s suspicion that they had committed an actionable wrong.

Planning analysis: In Stop Portland Waste Incinerator v SHCLG, the Court of Appeal held that the Secretary of State had met her duty u to give reasons for granting permission for an energy recovery facility. The court confirmed that the ‘proximity principle’ in the joint local waste development plan is a matter of planning judgment to be applied with realism, not a strict rule favouring the nearest or allocated site.

Private Client analysis: The Court of Appeal held that to prove undue influence in probate cases the circumstances had to be such that undue influence was more probable than any other hypothesis bearing in mind that undue influence is usually inherently improbable on the facts. This clarified the law which had previously been expressed as requiring the circumstances to be necessarily inconsistent with an alternative hypothesis for undue influence to be proved. Since undue influence in most cases is likely to be found to be inherently improbable on the facts, this represents a high bar for those wishing to allege undue influence. Written by Robert Deacon, barrister at 11 Stone Buildings.

IP analysis: The key issue in this appeal was the interpretation of section 48 of the Trade Marks Act 1994 (TMA 1994) which sets out the statutory acquiescence defence to trade mark infringement and passing off. The Court of Appeal held that the five-year acquiescence period begins to run once the proprietor of the earlier mark becomes aware of the use of the later mark, and the later mark is in fact registered, whether or not the proprietor of the earlier mark is aware of the registration of the later mark. Significantly, in so holding, the Court of Appeal departed from the leading EU judgment to date on statutory acquiescence in Budějovický Budvar, národní podnik, v Anheuser-Busch Inc, (‘Budvar’). The Court of Appeal also gave helpful guidance around the availability of this defence in passing off claims and actions the proprietor of the earlier mark can take to end acquiescence. This case analysis will be relevant to all IP practitioners seeking to understand the newly confirmed English law position on the scope of the section 48 defence. Written by Gill Dennis, senior practice development lawyer, Pinsent Masons.

Dispute Resolution analysis: The Court of Appeal has ruled that CPR 19.6(3)(b) does not permit substitution of defendants after expiry of the relevant limitation period where such substitution would change the essential facts necessary to establish liability against the substituted defendant. The claimants (respondents in the appeal) had issued proceedings against firms which had acquired the alleged wrongdoers, believing that any liabilities had been transferred. When it emerged (or was at least disputed) that liabilities had not been transferred, they sought to add or substitute the predecessor firm after limitation had expired. The Court of Appeal concluded that CPR 19.6(3)(b) was not engaged since the substitution would change the claim in substance, as an essential element of the case against the original defendant (the pleaded basis for the acquiring firm’s liability) would be replaced by the primary liability claim against the substituted defendant. It was, in effect, a different claim against a different party. The Court of Appeal was clear that any perceived harshness this might cause to claimants could not be mitigated by adopting a broad reading of CPR 19.6(3)(b). Rather, it considered the problem (if any) was caused by earlier binding Court of Appeal authority which had confined the ‘mistake’ gateway in CPR 19.6(3)(a) to errors of name (misnomer) and excluded cases of mistaken legal responsibility/liability (identity). Any solution, if required, would therefore be a matter for the Supreme Court.

Planning Analysis: In DLA Delivery, the Court of Appeal upheld the High Court’s decision that the making of a neighbourhood development plan (NDP) did not have to await the adoption of any other development plan document and could addressing housing needs even though there was no adopted development plan document in place dealing with that issue.

IP analysis: Kate McIver, with the claimant’s approval, originally purchased and re-labeled the claimant’s ‘Elixir’ serum. However, she (and her company) then began to misrepresent themselves to customers as the creators of the serum by removing the claimant’s branding from labels, before moving manufacturing of the serum to a third party. The Court of Appeal upheld the High Court’s finding of passing off and copyright infringement. However, this case highlights how incorrect and/or defective pleadings entered by the claiming party can, if challenged by the defending party, be held as inapplicable and/or struck out of the claim. Practitioners on both sides should look to scrutinise the pleadings to ensure they are accurate and reflect the claims being put forward at trial. Written by Ikra Saghir, associate and Mark Daniels, partner at Browne Jacobson LLP.