Construction Analysis: The Court of Appeal dismissed an appeal concerning fire safety defects claims, endorsing the Technology and Construction Court (TCC)’s robust approach to striking out unparticularised and speculative heads of loss. The judgment reinforces that proper pleading standards must be maintained in construction defect claims. The court confirmed there is no material difference between contractual damages and those recoverable under the Defective Premises Act 1972 (DPA 1972), while emphasising that damages claims should be clearly particularised in pleadings. The focus should be on established categories of loss including cost of works, diminution in value or residual diminution, and demonstrable consequential losses; purely speculative, hypothetical or vague claims should be avoided.

Planning analysis: In Plan B Earth v SoST, the Court of Appeal decided that the designation of the Airports National Policy Statement (ANPS), which supports the expansion of capacity at Heathrow Airport by the addition of a third runway, was unlawful. The ANPS is now of no effect until reviewed by the Secretary of State for Transport (SoST).

Immigration analysis: This immigration analysis considers the impact of R (Kone) v SSHD in which the Court of Appeal found that a child can be entitled to settlement under the Immigration Rules, Part 8, para 297(i)(f) as the child of a settled parent whose exclusion is undesirable, even where the child’s other parent is living in the UK with limited leave to remain.

Tax analysis: The taxpayer, GE Financial Investments (GEFI), was a UK incorporated company deemed US tax resident under US domestic law as the equity in the taxpayer was ‘stapled’ to equity in a US entity. The taxpayer had substantial interest income and could only avoid UK taxation by establishing either that it was US resident under the UK-US double tax treaty (DTT) or that it was carrying on a business in the US. The Court of Appeal held that it was neither and no relief from UK tax was available, despite the presence of the US tax liability. DTTs do not provide a general get out of double taxation, there must be precise connecting factors to the other jurisdiction under the terms of the treaty. The relevant connecting factors here were either residence or carrying out a business in the US. GEFI’s US tax liability arose from the stapling of its shares. Even though this gave rise to a US tax liability on worldwide income (and effective US tax residence under US domestic law), this was not sufficient to establish residence under the UK-US double tax treaty. GE Financial had to pay tax twice on the same income. Written by Tom Rank, partner, DWF Law LLP.

Planning analysis: In Substation Action Save East Suffolk Ltd v Secretary of State, the Court of Appeal had to consider an appeal against the dismissal of a judicial review challenge by the High Court in respect of two development consent order (DCO) applications for offshore wind farms and associated onshore infrastructure. The Court of Appeal found that the High Court judge had not erred in her interpretation of the relevant provisions of planning policy and guidance in determining that they did not require an applicant for a DCO to demonstrate that whenever there is a risk of flooding from surface water there are no other sites reasonably available where the proposed development could be located in an area of lower surface water flood risk. Further, it found that the decision maker was entitled to defer consideration of other projects under a cumulative assessment of environmental impacts as there was insufficient information available to make a proper assessment. Written by Elizabeth Dunn, partner, and Sarah Sutherland, practice development lawyer at Burges Salmon LLP.

Tax analysis: In A Taxpayer v HMRC the Court of Appeal allowed the taxpayer’s appeal, holding that she was non-UK resident in 2015-16 as a result of exceptional circumstances which meant that certain days of presence in the UK could be ignored in applying the statutory residence test.

Arbitration analysis: The Court of Appeal has overturned a November 2017 decision of Teare J in the Commercial Court which had followed precedent in holding that an arbitration clause in a standard form insurance policy, requiring arbitrators to have ‘not less than ten years’ experience of insurance or reinsurance’, precluded lawyers and restricted appointments to ‘trade’ arbitrators. The 17 year old first instance decision, which Teare J had followed, was found to be wrong. The clause did not exclude lawyers and if that had been the parties’ intention a clear expression of that intent would have been needed. The Court of Appeal noted that certainty was an important value in commerce but that contracting parties should know that a decision of a court of first instance was not immutable and was capable of being overturned. The application under section 24 of the Arbitration Act 1996 (AA 1996) for the removal of the arbitrator failed.

Construction analysis: The Court of Appeal allowed an appeal against summary judgment for the defendant in a claim in negligence where a third party intruder caused a fire at the claimant’s property having gained access during an inspection by the defendant. The court at first instance held that this was a ‘pure omission’ case and the defendant did not owe the claimant a duty of care. The Court of Appeal disagreed with this finding and found that the alleged duty of care owed by the defendant to the claimant in respect of the damage caused by the third party was arguable (which was all that was required).

IP analysis: The Court of Appeal allowed an appeal by Safestand against a finding of invalidity against three of its registered designs. The court held that the contested registered designs for builders’ trestles were indeed valid. In its judgment of 2 April 2025, the Court of Appeal agreed with Safestand’s submissions that each of the registered designs depicted a single modular product, rather than different embodiments of a complex product; the designs were therefore not invalid on the basis that they did not depict a single product. The court emphasised once again, as His Honour Judge Hacon had in the first instance decision, the importance of objective interpretation of the images depicting the design. Written by Kaisa Patsalides, senior associate, and Rosie Lapper, associate, at CMS Cameron McKenna Nabarro Olswang LLP.

Tax analysis: In Good, the Court of Appeal upheld the findings of the First-tier Tax Tribunal (FTT) and the Upper Tribunal (UT) that the taxpayer, who had participated in a scheme for the exploitation of film rights, was subject to income tax on certain ‘minimum annual payments’ arising as part of the scheme on the basis that he was ‘entitled to’ them.

PI & Clinical Negligence analysis: The Court of Appeal held that despite an assault on a teacher by a pupil with emotional and behavioural difficulties being both reasonably foreseeable and occurring after the school had breached its duty of care, causation was not established. The claimant had failed to prove that the assault would not have happened but for the breaches of duty. Vaile v London Borough of Havering did not establish any new principle of causation in general or relating to attacks on teachers by pupils and was distinguished on its facts. This case is relevant to personal injury practitioners concerned with assaults in educational, medical or supervisory environments. Written by Matthew Snarr, barrister at 9 St John Street, Manchester.

Planning analysis: In North Warwickshire BC v SoST, the Court of Appeal held that the Bromford Tunnel Extension was authorised as a non-scheduled work under section 2(1) of the High Speed Rail (London–West Midlands) Act 2017 (the HS2 Phase One Act), but that it did not benefit from the deemed planning permission conferred by section 20(1) of the HS2 Phase One Act. The court held that section 20(2)(c) requires non-scheduled development likely to have significant environmental effects to have been the subject of an environmental assessment during the Parliamentary process, rather than merely falling within the environmental effects previously assessed for the project. The decision provides important guidance on the relationship between the statutory scheme for HS2, environmental impact assessment requirements and the circumstances in which revised designs require a separate planning permission and environmental impact assessment.