PI & Clinical Negligence analysis: The Court of Appeal held that the obligation of the Motor Insurers’ Bureau (‘MIB’) under EU law to compensate victims of road traffic accidents covered vehicles that had been insured at the time of the accident but where the policy had subsequently been avoided ab initio. The obligation to compensate could only be excluded where the claimant knew that the vehicle (as opposed to the driver) was uninsured or where they knew that the vehicle was stolen. Where UK domestic law precluded a claim against the insurer of the vehicle, a direct claim against the MIB to make up the shortfall on the basis that it was in breach of EU law succeeded. Written by Jonathan Butters, barrister, Devereux Chambers.

Tax analysis: In FS Commercial Ltd v HMRC, the Court of Appeal upheld earlier decisions of the First-tier Tax Tribunal (FTT) and the Upper Tribunal that HMRC was entitled to refuse the appellant’s claim for input tax because the appellant had failed to produce VAT invoices when requested by HMRC.

Insurance & Reinsurance analysis: The Court of Appeal’s judgment provides welcome clarification on the subject of insurable interest, and will be of particular interest to those concerned with the trading, financing and insurance of commodities. The judgment recognises and reaffirms that the courts will lean towards finding that an insurable interest exists. It is now clear that, even where neither property nor risk in commodities has passed, payment or part-payment of the price for those commodities will give the buyer an insurable interest. That insurable interest can be in unascertained goods, irrespective of whether they form part of an identified or an unidentified bulk, and regardless of whether the insured had acquired title to the goods or a proprietary interest in part of a bulk of commingled goods under Section 20A of the Sale of Goods Act 1979. The judgment also illustrates the weight that is likely to be placed on various forms of evidence, in particular independent inspection reports, to demonstrate the existence of insured commodities, particularly in circumstances where that existence is called into question by fraudulent activity. Written by Elizabeth Farrell, partner at Reed Smith LLP and Tom Watling, associate at Reed Smith LLP.

Tax analysis: In this case, the taxpayer was ‘entitled to’ film income irrevocably assigned away under a pre-ordained series of transactions. The Court of Appeal held unanimously that Mr Good derived a benefit from the income because of the recipient’s obligation to offset the money against Mr Good’s interest obligations. As a result, he was taxable on income that he never received—a salutary reminder that the tax treatment does not necessarily follow the economic reality. The court also clarified the decision in Bostan Khan which also concerned the meaning of the same phrase. That case is not authority for the propositions that: (i) an assignment is the sole determinative factor of entitlement (ii) that a legal obligation to deal with the money in a particular way after receipt is irrelevant, and (iii) that there is a requirement for the income to ‘belong’ to the taxpayer. Written by Katherine Bullock, barrister, St Katharine’s Chambers.

Tax analysis: In A D Bly Groundworks and Civil Engineering Ltd and another v HMRC, the Court of Appeal dismissed the taxpayers' appeals against the decision of the Upper Tribunal (UT) that no deduction was allowable for provisions in respect of an unfunded unapproved retirement benefit scheme (UURBS).

Information Law analysis: The Court of Appeal affirmed the decision of Mrs Justice Roberts’ in the High Court (Family Division) to refuse the investigative journalist, Melanie Newman, access to court papers relating to care and adoption proceedings. Ms Newman had sought wide-ranging access to court papers, including medical reports and social care documents, for the purposes of her investigations into the case of ‘M’, an eight year old girl who had been removed from her mother’s care at the age of two by the respondent local authority. Against the backdrop of the open justice principal, the Court of Appeal reviewed Roberts J’s balancing of the child’s privacy rights against the journalist’s rights of freedom of expression, and ruled in favour of the child’s privacy rights, finding that there was no basis to interfere with Roberts J’s approach to the ‘targeted and fact-specific’ balancing exercise she had carried out at first instance. Written by Andrew Willan, senior associate in the Dispute Resolution department of Payne Hicks Beach.

Tax analysis: In R (oao Refinitiv Ltd and others), the Court of Appeal dismissed the companies' appeal against the decision of the Upper Tribunal (UT) not to allow their judicial review claim in respect of diverted profits tax (DPT) charging notices issued by HMRC to three of the companies.

Tax analysis: In Burlington Loan Management, the Court of Appeal dismissed HMRC’s appeal against the Upper Tribunal’s decision that the First-tier Tax Tribunal had been entitled to find that Burlington Loan Management (BLM), an Irish tax resident company, could benefit from the UK withholding tax exemption provided by Article 12(1) of the UK-Ireland double tax treaty (DTT) after it had purchased the rights to a debt claim from a company tax resident in the Cayman Islands. The anti-abuse provision in Article 12(5) of the treaty did not apply to deny BLM the benefit of that exemption.

TMT analysis: The Court of Appeal has considered an appeal against the refusal of the first instance judge to grant an anti-suit injunction in relation to a US Section 1782 order. The Court of Appeal considered the House of Lords decision in South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ NV [1987] 1 AC 24 and said that it had broadly set out the relevant principles. Therefore, the first instance judge was entitled to reach the conclusion he had after following those principles. The Court of Appeal also stated that the scope of the order granted by the courts in the US would be ‘unlikely to be granted’ by the English courts. However, the US courts had given such an order following the relevant principles in that jurisdiction. The Court of Appeal also said that even though this was a defamation case, that did not mean that different principles should be applied and so the defendant was free to collect evidence in any lawful manner. Written by Helen Hart, senior practice development lawyer, Lewis Silkin LLP.

Dispute Resolution analysis: The Court of Appeal has handed down its judgment in Meta Platforms Inc v Gormsen. Meta Platforms Inc appealed against the decision of the Competition Appeal Tribunal (CAT) permitting the class representative, Dr Gormsen, to amend her claim to seek ‘user damages’ in ‘opt-out’ proceedings brought on behalf of a class of Facebook users. The class comprises persons who used their Facebook accounts at least once while in the UK in the period between 14 February 2016 and 6 October 2023. The claim is that such users had no effective choice but to agree to conditions imposed on them that included permitting Facebook to collect, share and otherwise process their data. The Court of Appeal has dismissed Meta Platforms Inc’s appeal, holding that the CAT was entitled to allow the claim to be amended to permit the issue of ‘user damages’ to be determined at trial.

IP analysis: The Court of Appeal held that the defendants (collectively ‘Merck US’) had breached the injunction granted by the High Court following the long-running trade mark dispute with the claimants (‘Merck Global’). In those proceedings, the court had been asked to determine various questions relating to the interpretation of co-existence agreements between the two pharmaceutical companies. Lord Justice Arnold, giving the leading judgment with which Lord Justice Philips and Lady Justice Andrews agreed, rejected all four grounds of Merck US’s appeal. In doing so, the Court of Appeal confirmed that an application for declaratory relief is an appropriate response to a breach of an injunction, even if proceedings for contempt of court are a remedy which is available to the aggrieved party. This is of note to practitioners as it means parties are not required to commence proceedings for contempt of court, which must be proved at the criminal standard. The court also provided helpful clarification on ’UK-specific’ in the context of website targeting and the definition of ‘inadvertent error’. These comments will be of particular interest to those advising on online enforcement issues, and those advising on global co-existence agreements. Written by Sean Ibbetson, senior associate and Timothy Minton, trainee at Bristows LLP.

Family analysis: This case involved an appeal in respect of final care orders by the first respondent mother who submitted that the expert psychologist, instructed by the court to conduct a psychological assessment of the mother and the children, had been acting outside the limits of his expertise. The appeal was dismissed and the Court of Appeal gave helpful guidance on how any party wishing to challenge an expert’s qualifications or expertise should do so. The judgment also approves the approach in recent case law regarding the use of psychological experts in family proceedings, including what an expert is, the relevant factors in considering an expert’s qualifications and expertise and the court’s discretion when considering expert evidence in general. The confirmation and additional guidance on the judicial approach to this topic is particularly helpful given the rise of case law surrounding experts in Family Court proceedings and the expected amendments to the Family Procedure Rules 2010 (FPR 2010), in particular FPR 2010, PD 25. Monica Young, barrister at 1GC Family Law, examines the issues.