PI & Clinical Negligence analysis: The case concerned the extremely important jurisdictional point as to whether the court has any case management powers to require a claimant to progress a claim within the Pre-Action Protocol for Low Value Claims in Road Traffic Accidents once the claim has been issued and stayed via CPR Part 8 for limitation purposes. In reversing the determination by the District Judge at first instance and Circuit Judge on first appeal that no such jurisdiction existed, the Court of Appeal (Lord Justice Coulson, Lord Justice Andrews and Lord Justice Holgate) unanimously decided that it does have the requisite powers. The decision sends a clear message that the parties should co-operate to ensure further compliance with the Protocol and also that the culture of lengthy periods of inactivity will no longer be tolerated; nor will the extending of a stay ever be treated as a rubber-stamping exercise going forward. It provides a mechanism by which a defendant can seek the assistance of the court to progress a stagnant claim. Written by Simon O'Dwyer, barrister at Crown Office Chambers.

Tax analysis: In Mudan and another v HMRC, the Court of Appeal upheld the decisions of the First-tier Tax Tribunal (FTT) and Upper Tribunal (UT), confirming that a property requiring significant renovation was nonetheless ‘suitable for use as a dwelling’, and therefore ‘residential property’ for the purposes of stamp duty land tax (SDLT).

TMT analysis: The Court of Appeal has dismissed an appeal against an award of damages for libel and harassment, holding that the claimant had failed properly to plead and prove any entitlement to damages for reputational harm arising from publication outside England and Wales. The judgment reaffirms that foreign publications must generally be pleaded as separate causes of action and satisfy the requirements of double actionability. The court also confirmed that, following default judgment, remedies are confined to the pleaded case and losses adequately established by the claimant. The decision serves as an important reminder that claimants seeking damages for reputational harm abroad must particularise and evidence such claims at the pleading stage. Produced in partnership with Francesca Sargent of Payne Hicks Beach.

Tax analysis: In Delinian (formerly Euromoney Institutional Investment), the Court of Appeal dismissed HMRC’s appeal against the decision of the Upper Tribunal (UT) that the anti-avoidance rule in section 137(1) of the Taxation of Chargeable Gains Act 1992 (TCGA 1992) did not apply to a share exchange.

Pensions analysis: Dismissing appeals by the Fire Brigades Union (FBU) and the British Medical Association (BMA) against the dismissal of their applications for judicial review of the Public Service Pensions (Valuations and Employer Cost Cap) (Amendment) Directions 2021 (‘the Directions’), the Court of Appeal determined that, in making the Directions, the Treasury did not act for an improper purpose, did not discriminate unlawfully between members, was not subject to any obligation to consult and did not act in breach of the public sector equality duty under section 149 of the Equality Act 2010 (EqA 2010). The decision confirms that the costs of the McCloud Remedy constitute ‘member costs’ rather than ‘employer costs’ under the Public Service Pensions Act 2013 (PSPA 2013) and so fall to be borne by relevant public sector pension scheme members. Written by Henry Day, barrister at Radcliffe Chambers.

Tax analysis: In Clipperton and another, the Court of Appeal confirmed the decisions of the tribunals that a marketed avoidance scheme, which was designed to enable the owners of a company to extract funds from it without incurring an income tax charge, did not work.

Tax analysis: In Marlborough DP Ltd, the Court of Appeal dismissed the taxpayer’s appeal and upheld the decision of the Upper Tribunal (UT), confirming that loans made to a director under a remuneration trust (RT) scheme were taxable under the disguised remuneration legislation in Part 7A of the Income Tax Earnings and Pensions Act 2003 (ITEPA 2003) as being ‘in connection with’ employment. The court also agreed that the related payments were not deductible for corporation tax purposes, as they were not incurred wholly and exclusively for the purposes of the company’s trade.

Commercial analysis: The Court of Appeal has confirmed in the case of King Crude Carriers SA v Ridgebury November LLC that the ‘Mackay v Dick Principle’, a principle that originates from the speech of Lord Watson in the Scottish case of Mackay v Dick & Stevenson, forms part of English law. In accordance with this principle, if a party’s obligation to pay a debt is subject to a condition and the debtor wrongfully prevents that condition from being fulfilled, the condition is treated as either dispensed with or fulfilled, with the result that the debt accrues. Written by Pippa Borton, associate, and David Bridge, solicitor advocate, both at CMS.

Dispute Resolution analysis: The key issue raised by this appeal was whether, and if so, when, procuring an anti-suit injunction (ASI) or an anti-anti-suit injunction (AASI) from a foreign court, which is intended to restrain or hinder the pursuit of claims in England and Wales, can amount to criminal contempt of court. The Court of Appeal held that seeking such a foreign ASI could only exceptionally amount to criminal contempt, and in circumstances where our ASI jurisprudence would not justify the grant of an ASI or AASI, the foreign proceedings cannot be regarded as ‘improper’ so as to criminalise by way of criminal contempt, the good faith invocation of such jurisdiction. The court held that there were no such exceptional circumstances in the instant case to render the conduct in question a criminal contempt. Written by Georgia Whiting, legal counsel at Capita.

A passenger who suffered personal injury when the driver of a vehicle in which he was travelling lost control and who argued that the doctrine of res ipsa loquitur should therefore apply, has had his case dismissed. An explanation as to how the accident occurred was established and as no proper criticism could be made of the driver, this was deemed sufficient to rebut an inference of negligence.

Planning analysis: In Save Stonehenge World Heritage Site v Secretary of State for Transport, the court had to consider whether the process of redetermining a development consent order (DCO) previously quashed by the court had been conducted fairly and properly. It confirmed that public decision making involved in the DCO procedure is not a form of litigation. As such, the statutory process and common law principles of procedural fairness do not dictate that issues must always be considered by an inquisitorial process. Where there is not a statutory requirement for an inquisitorial process (such as on redetermined DCOs), claimants need to demonstrate that there was a particular need for evidence to be interrogated such as between independent experts on the issues under further consideration. Moreover, for claimants to prove procedural unfairness they must show that they have suffered material prejudice. Neither were established in this case.

Planning analysis: Written by Brendon Lee, legal director at HCR Hewitsons.