IP analysis: The Court of Appeal has considered factors which should be taken into account when deciding whether proceedings are appropriate for and should be transferred to the Intellectual Property Enterprise Court (‘IPEC’) Small Claims Track (‘SCT’). It has also considered whether such a transfer conflicts with Article 14 of Directive 2004/48/EC (the Enforcement Directive), which provides for the successful party in litigation to be able to recover reasonable and proportionate costs and expenses. This decision will be of particular interest to IP practitioners but is also likely to have broader relevance to litigators in any field considering whether a forum limited by damages and costs recovery is appropriate. The case further considers (and comes to an unsurprising conclusion as to) the impact of the Retained EU Law (Revocation and Reform) Act 2023 (REUL(RR)A 2023) on elements of EU law not implemented into English legislation prior to Brexit. Written by Mark Nichols, senior associate at Potter Clarkson LLP.

In Re W (children) (contact order: domestic violence) [2012] EWCA Civ 528, [2012] All ER (D) 125 (Aug) the Court of Appeal was concerned with whether a judge had been wrong in a case involving a history of domestic violence to have determined the respondent father's application for extended contact without the need for expert assistance.

Tax analysis: In Peter Marano v HMRC, the Court of Appeal dismissed the taxpayer’s appeal that automated notices and penalty assessments were not validly issued. It held that the effect of section 103 of the Finance Act 2020 (FA 2020) is that it is not necessary for HMRC to prove the involvement of an ‘officer of HMRC’ in the giving of a statutory notice or assessment.

Environment analysis: Stephen Hockman QC and David Hercock, of Six Pump Court Chambers, examine a Court of Appeal decision that the first appellant, which held an environmental permit for treatment of waste soil and aggregate, could only be prosecuted for alleged breach of an enforcement notice requiring it to remove waste material that had, contrary to the permit, been stored on site for more than three years ‘prior to recovery’, if the prosecutor could prove that the three years preceded the commencement, rather than completion, of the recovery operations.

Pensions analysis: In a rare case that considered the meaning of an occupational pension scheme for the purposes of section 1 of the Pension Schemes Act 1993 (PSA 1993), the Court of Appeal upheld the Employment Appeal Tribunal’s (EAT) decision that a police disablement gratuity was not such a scheme. The Court of Appeal held that to be an occupational pension scheme, a scheme must provide benefits ‘on’ one of the events specified in PSA 1993, s 1(5)(a) to (c), being on retirement, on a person having reached a particular age or on termination of service. In this case, while cessation of service was required for the disablement gratuity to become payable, it was not the event that triggered entitlement, it was merely one condition of the entitlement. The case is important as much of pensions legislation only applies to occupational pension schemes as defined under PSA 1993, s 1. Knowing whether you are such a scheme is vital to ensure you are complying with the law. Written by Daniel Schaffer, partner, Catrin Young, Senior PSL, and Maria Michael, trainee solicitor at Slaughter and May.

Tax analysis: In HMRC v Bolt Services UK Ltd, the Court of Appeal decided that the relevant supplies of passenger transport services were outside the scope of the Tour Operators’ Margin Scheme (TOMS) because they were not comparable to those supplied by a travel agent or tour operator.

Tax analysis: The case of Beech Developments shone a light on a potential mismatch between different parts of the Income Tax (Construction Industry Scheme) Regulations 2005, SI 2005/2045 (the CIS Regulations). The Court of Appeal decided there was nothing preventing HMRC from reducing any determination of a CIS underpayment, eg on an ‘equitable’ basis to reflect the fact that there was no real loss of tax, and that HMRC should interpret the rules more broadly.

Property Disputes analysis: This appeal concerned whether the long leaseholders of a mansion block in Holland Park, Duchess of Bedford House, have the benefit of a right to park cars in an adjoining private road, known as Sheldrake Place East, which forms part of Sheldrake Place. The Court of Appeal held that upon the proper construction of a reservation in a 1969 headlease of parts of Sheldrake Place and a ‘carve out clause’ in a subsequent 1974 headlease of Duchess of Bedford House, the long leaseholders of Duchess of Bedford House do have a right to park on Sheldrake Place East. The decision is essential reading for property law practitioners when considering the operation of section 62 of the Law of Property Act 1925 (LPA 1925), issues of interpretation, and the preservation of development rights in leases. Written by Mattie Green, barrister at Landmark Chambers.

Tax analysis: In Orsted West of Duddon Sands (UK) Ltd and others v HMRC, the Court of Appeal overturned the decision of the Upper Tribunal (UT), holding that the companies were entitled to capital allowances in respect of certain environmental studies undertaken before and during the construction of offshore windfarms.

Commercial analysis: A trade mark licence which was expressed to ‘continue indefinitely’ was not to be construed as being in perpetuity or incapable of being terminated without some other factor supporting that interpretation. The Court found such a term enabling termination to exist as part and parcel of the construction exercise. Accordingly, the licence was terminable on reasonable notice at any time by either party even where the licence included express termination rights only for the licensor. Written by Andrew Mace, barrister at Tanfield Chambers.

Tax analysis: In Purkiss (as liquidator of Ethos Solutions Limited), the Court of Appeal considered the application of section 423 of the Insolvency Act 1986 (IA 1986) where transactions had been entered into with a view to avoiding income tax and National Insurance contributions (NICs). It held that the transactions were not undertaken for the ‘prohibited purpose’ of prejudicing the interests of HMRC in respect of a claim it may have made for the unpaid tax liabilities.

Planning analysis: In Darwall v Dartmoor National Park Authority, the Court of Appeal had to interpret section 10(1) of the Dartmoor Commons Act 1985 (DCA 1985) and particularly the words ‘the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation’. It concluded that ‘open-air recreation’ includes wild camping, although such an activity must be conducted in strict accordance with the applicable bylaws made by the Dartmoor National Park Authority. Written by Vivienne Sedgley, barrister at 4-5 Gray’s Inn Square.