Dispute Resolution analysis: The Court of Appeal has considered the test for equitable set off and when this can secure a successful cross-claim, where a factor (funder) attempted to recover customer debts it purchased from the supplier, only to be met with the debtor’s cross-claim of entitlement to a rebate in respect of the debts due. In so doing, the court considered that, absent a contractual agreement between the factor and supplier that there should be no rebate, or request by the factor that the debtor inform it of such matter, there was no obligation on the debtor to inform the factor of any such pre-existing arrangements concerning the debt.

Dispute Resolution analysis: The Court of Appeal has given permission for a party to withdraw a concession made during oral submissions at trial with the result that the point in issue was effectively reconsidered by the appellate court.

IP analysis: Two decisions handed down by the Court of Appeal have provided much-needed clarity in relation to separate trade mark infringement actions originally brought by easyGroup Limited (easyGroup) against Easy Live (Services) Ltd and Easyfundraising Ltd (and others), respectively. At first instance, the judges reached inconsistent conclusions in relation to counterclaims made by the defendants, who asserted (among others) that there had been no genuine use of easyGroup's EASYLIFE stylised mark, and it should be revoked on the ground of non-use. In particular, the Court of Appeal has provided further guidance on (i) use of variant forms of a trade mark as registered (section 46(2) of the Trade Marks Act 1994 (TMA 1994)); and (ii) partial revocation of a specification (TMA 1994, s 46(5)). This case analysis focuses on the reconciliation of the inconsistencies between the two first instance judgments, specifically in relation to variant trade marks, genuine use and revocation actions. Written by Amanda McDowall (partner) and Sophie Anim (senior associate) at Lee & Thompson LLP.

Dispute Resolution analysis: Bankim Thanki QC, Tamara Oppenheimer and Rebecca Loveridge, barristers at Fountain Court Chambers, explain why the practical implications of the Court of Appeal’s judgment for companies facing criminal investigation—and potentially prosecution—and for their legal advisors are very significant.

Planning analysis: The Court of Appeal overturned the High Court decision that temporarily barred the use of a hotel in Epping, Essex, to house asylum seekers. It ruled that (i) the injunction had been wrongly granted and (ii) the Home Office had wrongly been denied being joined to the proceedings as it was ‘plainly directly affected’ by the outcome of the injunction application given its statutory duties to provide support and prevent destitution among asylum seekers. Written by Jack Smyth, barrister, No5 Chambers.

Planning analysis: In Ariyo v Richmond Upon Thames LBC, the Court of Appeal had to consider whether London Borough of Richmond Upon Thames (the LPA) had acted unlawfully in granting planning permission for a garden area and structure to be used as a restaurant. While the permission was quashed on the basis that noise impacts, a material consideration, were not taken into account, the judgment outlines the importance of clarity and consistency within planning applications, plans and decision notices to avoid uncertainties arising at a later date. The general principle was reiterated that the interpretation of a permission depends on what a reasonable reader would understand the words to mean, seen in their context, with the reader being treated as being equipped with some knowledge of planning law and practice. Written by Sarah Sutherland, practice development lawyer at Burges Salmon LLP.

Arbitration analysis: The Court of Appeal held that Moscow mortgage enforcement proceedings were not brought in breach of a Vienna-seated arbitration agreement contained in the related facility agreement. Applying established principles on competing Dispute Resolution clauses, the court concluded that the parties intended disputes concerning default and enforcement of Russian security to be determined within the Moscow enforcement process. The decision underscores the importance of construing interconnected finance documents as a coherent whole and demonstrates the court’s reluctance to impose commercially artificial procedural requirements that would duplicate proceedings. The judgment provides valuable guidance on the interaction between arbitration clauses and security enforcement mechanisms, while also highlighting unresolved procedural questions concerning service out in arbitration claims.

Personal Injury analysis: The Court of Appeal has ruled that the loss of an unmarried partner due to negligence should be compensated in the same way as losing a spouse or civil partner. Coffin Mew partner Sue Bowler, who specialises in personal injury and clinical negligence claims, says the decision ‘fundamentally’ changes the law for cohabiting couples and redresses the balance in favour of those bereaved by negligence.

A Group Litigation Order will not be granted where the court is not convinced that there is a sufficient number of claimants who seriously intend to proceed and whose claims raise common related issues of fact and law.

Planning analysis: In Luton and District Association for the Control of Aircraft Noise v SST, the Court of Appeal refused an extension of time for applying for permission to appeal against the High Court’s dismissal of a judicial review challenge to the Luton Airport development consent order (DCO). The appellant had missed the seven-day time limit for applying for permission, and delayed further before applying for an extension of time. The court held that the breach was serious and significant, there was no good reason for it, and all the circumstances pointed against relief.

Planning analysis: In Barclay v SoST, the Court of Appeal refused permission to appeal against the dismissal of challenges to the development consent order (DCO) authorising dual-runway operations at Gatwick Airport. It held that the proposed expansion was supported by national aviation policy, provided that it met a need additional to or different from Heathrow’s proposed Northwest Runway. The SoST had lawfully assessed the scheme’s greenhouse gas emissions and reliance on the Jet Zero Strategy.

The Court of Appeal allowed a second appeal and reinstated the costs judge’s case management decision refusing to strike out non-compliant points of dispute and permitting reliance on a late-filed annotated schedule during detailed assessment proceedings. The Court of Appeal held that, although the points of dispute did not comply with CPR PD 47, para 8.2 and the guidance in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178, the costs judge had been entitled, in the exercise of his broad case management discretion, to permit the variation subject to costs consequences rather than impose the sanction of strike out. The decision underlines both the importance of compliance with the detailed assessment regime and the limited scope for appellate interference with discretionary case management decisions.