Construction analysis: The Court of Appeal found that a reference to ‘total cost’ in a contract for interior design services meant the estimated costs of relevant items, as approved by the client, and not what it cost the designer to then procure those items. In turn, this meant that the designer was not obliged to pass on trade discounts that it obtained when procuring items for the client, after the client had approved the cost estimates.

Planning analysis: In Suffolk Energy Action Solutions v SSESNZ, the Court of Appeal had to consider whether the Secretary of State had acted unlawfully in dealing with allegations that the ability of landowners facing possible compulsory acquisition to present objections to and information about a scheme for which development consent was sought had been stifled or neutralized . The appellant alleged that this was the effect of the Heads of Terms that the developer had agreed with various landowners before and during the examination into the two applications for development consent, which included non-objection and confidentiality clauses. The Court of Appeal held that: (i) the use of non-objection clauses was legitimate in the circumstances of the case and there was no conduct interfering with the administration of justice; and (ii) the Secretary of State lawfully addressed the complaint made about this matter. The Court of Appeal therefore dismissed the appeal. Written by Mark Westmoreland Smith KC, barrister at Francis Taylor Building.

Property Disputes analysis: The Court of Appeal held, by differing majorities, that falcon breeding during the breeding season was a particularly sensitive use of land, so noise and visual disturbance affecting only that use did not satisfy the objective threshold for private nuisance. However, the occupiers were liable in negligence because they knew of the foreseeable risk of physical harm to the falcons and could reasonably have altered the timing or manner of their activities. The decision limits nuisance claims based on abnormal sensitivity but indicates that a duty of care may nevertheless arise where a neighbour’s special vulnerability is known and property damage is avoidable. Developers should therefore document reasonable scheduling and mitigation measures. Permission to appeal on negligence has been granted. Produced in partnership with Camilla Lamont of Landmark Chambers.

IP analysis: On 23 October 2025, The Court of Appeal dismissed an appeal filed by Iceland Food Ltd (Iceland) in trade mark infringement proceedings, following a decision in the Intellectual Property Enterprise Court (IPEC) to refuse Iceland’s application for summary judgment on its counterclaim for invalidity of Babek International Ltd's (Babek) UK trade mark registration. Iceland had applied to invalidate Babek's registration on the basis that the registered mark did not meet the requirements under section 1(1) and section 3 of the Trade Marks Act 1994 (TMA 1994), arguing that the registration lacked the necessary precision and clarity to identify the mark, based on alleged inconsistencies between the verbal description, the pictorial representation and the colours claimed. The Court of Appeal found that Judge Hacon had applied the incorrect test in determining when colour hues must be specified but, having reconsidered the issues the court concluded that Babek's mark complied with the conditions for registrability, being a single, clear and precise sign, and dismissed Iceland's appeal. The judgment affirms that, when assessing a trade mark, the categorisation of the mark, the pictorial representation and the written description are all relevant to defining the mark to be protected, with the purpose of identifying a single, clear and precise trade mark. Written by Alice Martins, Registered Trade Mark Attorney, and Helene Whelbourn, legal director, at Lee & Thompson LLP.

Dispute Resolution analysis: Luka Krsljanin, barrister at 2TG, examines a recent decision of the Court of Appeal in WH Holding Ltd and another company v E20 Stadium LLP concerning litigation privilege. The court decided that litigation privilege did not cover documents which had passed between the respondent company's board members and between board members and stakeholders and which had the dominant purpose of discussing a commercial proposal for the settlement of the dispute between the respondent and the appellants at a time when litigation was in reasonable contemplation. This is because the documents neither sought advice or information for the purpose of conducting litigation nor revealed the nature of such advice or information.

Tax analysis: In WTGIL Ltd, the Court of Appeal decided that, where an insurance intermediary has supplied intermediary services in relation to car insurance policies that require it to provide and fit devices to the cars concerned, the provision and fitting of the devices by the intermediary is an exempt activity carried out ‘in the course of’ acting in an intermediary capacity. The Court found the services fell within the scope of Item 4 of Group 2 of Part II of Schedule 9 to the Value Added Tax Act 1994 (VATA 1994) which provides exemption for the services of an insurance intermediary that are related to a contract for insurance and are supplied by the insurance intermediary ‘in the course of’ acting in an intermediary capacity.

Tax analysis: The appeals concerned incentivisation arrangements by an investment management business which transferred its team to an LLP, who became self-employed members of the LLP. Under a deferred profits arrangement, profits were allocated to a corporate member who made investments and the proceeds were then subsequently (following growth over a period) reallocated to the individual LLP members. The issue was whether the amounts reallocated to individuals had a ‘source’ and was therefore taxable under Chapter 8 of Part 5 of the Income Tax (Trading and Other Income) Act 2005 (ITTOIA 2005). The Court of Appeal decided that the rights conferred under the partnership deed, combined with the decisions taken in favour of the individuals to reallocate the amounts, was sufficient to amount to a ‘source’ from which the income was derived—it was thus taxable under ITTOIA 2005, s 687 as miscellaneous income. Written by Thomas Hemming, associate and Helen McGhee, partner at Joseph Hage Aaronson LLP.

Personal Injury analysis: Michael Rawlinson QC and Gemma Scott, of 12KBW, examine the Court of Appeal’s decision to allow an appeal by the widow of a man who died from mesothelioma after working with asbestos while in the respondent’s employment in the 1960s.

Dispute Resolution analysis: The Court of Appeal has held that the English Court was ‘clearly and distinctly the appropriate forum’ to hear a number of claims against Dyson, relating to alleged trafficking, forced labour, exploitative and abusive working and living conditions, and in some cases, detention, torture and beating whilst the claimants were manufacturing components in Dyson’s supply chain. The first two defendants were English companies served, as of right, in England, and the third defendant was a company domiciled in Malaysia, permission for service out having been granted on the basis of it being a proper and necessary party. At first instance, it was held that Malaysia was the appropriate forum and that there was no real risk that the ‘very poor’ claimants would be unable to access justice there. The Court of Appeal overturned the first instance decision and exercised its own evaluation of the Spiliada factors. Written by Georgia Whiting, legal counsel at Ardmore Construction Group.

Commercial analysis: The Court of Appeal recently upheld an important ruling on contractual interpretation, dismissing the Disclosure and Barring Service’s (DBS) appeal against Tata Consultancy Services Ltd (TCS) in a dispute over a £1.6m liquidated damages claim. Victoria Peckett, partner at Clyde & Co, analyses the implication of the court’s decision.

Tax analysis: The Court of Appeal upheld the First-tier Tax Tribunal (FTT) and Upper Tribunal’s (UT) conclusion that the taxpayer company was obliged under section 874 of the Income Tax Act 2007 (ITA 2007) to deduct withholding tax (WHT) on certain interest payments. The taxpayer argued that the beneficial entitlement exemption in ITA 2007, s 933 applied as the right to accrued interest had been assigned to a UK resident company. The Court of Appeal disagreed, holding that in the circumstances, Parliament could not have intended for the exemption to apply. The taxpayer also argued that as the loans were short-term and the interest was not yearly, the duty to deduct WHT under section 874 did not arise. The Court of Appeal also rejected this analysis—as a matter of commercial reality, the interest was in substance long term lending. The judgment provides a useful insight into the application of the Ramsay principle of purposive interpretation in tax legislation and the meaning of ‘beneficial entitlement’ and ‘yearly interest’. Written by Thomas Hemming, associate barrister and Helen McGhee, partner at Joseph Hage Aaronson LLP.

TMT analysis: In this application to the Court of Appeal for leave to appeal the strike out of a libel claim, the court considered the meaning of the ‘serious harm’ test in section 1 of the Defamation Act 2013 (DA 2013). It considered whether it is necessary for the claimant to prove in the case of multiple publications that each publication of that statement taken by itself caused serious harm to reputation or whether the overall, cumulative, or aggregate defamatory impact of the publication of the statement is sufficient to satisfy the test. The Court considered it arguable that the latter was sufficient. It also considered whether ‘Slipper’ damages (damages for harm caused when the original publishee repeats the defamatory statement or its gist to others) are only available where it is first proved that the initial publication of a defamatory statement has caused or is likely to cause serious harm to reputation. The court took the view that the claimant’s argument that Slipper damage is itself reputational harm caused by the original publication within the meaning of DA 2013, s 1 had a reasonable prospect of success. However, the court refused leave to appeal on the basis that even if there had been an error of law, the appeal did not have a reasonable prospect of success based upon the pleaded case (permission to amend had been refused) and the facts. Written by Carolyn Pepper, partner, Reed Smith LLP.