The Court of Appeal has taken the unusual step, by its own admission, of overturning an award for costs, on the basis that the judge had erred in principle. Although the defendant had been partially successful with its counterclaim, in net terms the claimant was still the overall winner as the defendant had been ordered to pay a sum to it. As such, the Court of Appeal considered that the award of costs should be in favour of the claimant but with recognition of the defendant’s partial success.

Planning analysis: The Court of Appeal held that the impact of radiofrequency electromagnetic fields (EMFs) from a proposed electronic communications development could be taken into account as a material consideration in an application for prior approval. In doing so, it considered the scope of paragraph 118 of the 2021 version of the National Planning Policy Framework (NPPF). The judgment is a useful reminder of: the circumstances in which a successful litigant in an earlier High Court challenge can bring an appeal to the Court of Appeal; the impact of section 31(2A) of the Senior Courts Act on the determination of a challenge for judicial review; and the correct approach to be taken when a decision by a public body is challenged for an alleged failure to take into account material considerations. Written by Sarah Sutherland, practice development lawyer at Burges Salmon LLP.

Immigration analysis: In R (DM) v Secretary of State for the Home Department (SSHD), the Court of Appeal held that the Home Office’s policy on family reunion for child refugees was unlawful as it failed to comply with section 55 of the Borders, Citizenship and Immigration Act 2009 (BCIA 2009). Parvez Anwar Pantho, caseworker at Duncan Lewis evaluates the background, findings and practical implications of this case.

Family analysis: This was a long-running case in which the husband had fraudulently failed to disclose substantial assets throughout the proceedings. Owing to the non-disclosure, the wife asked the court to reconsider her financial award. The judge had taken the approach used in Kingdon v Kingdon, restricting consideration only to the non-disclosed assets. The wife appealed this decision, which has now been overturned. The Court of Appeal found that the judge had been wrong to adopt the ‘Kingdon approach’ in this case. Owing to the husband’s fraudulent conduct and the effect it has had on the court proceedings, the appeal judges said that it was necessary to reevaluate the wife’s financial claim with a review of the ‘entire financial landscape’. Hayley Trim, partner at Irwin Mitchell, who represented the wife, analyses the issues.

Construction analysis: The Court of Appeal considered for the first time the scope of the residential occupier exception under section 106 of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and clarified the approach to assessing the validity of pay less notices under section 111. Dismissing RBH’s appeal, the court held that the employers had a realistic prospect of establishing an intention to occupy the property as their residence, notwithstanding contradictory development loan documentation. The court also confirmed that a pay less notice will be valid if it makes tolerably clear the sum said to be due and the basis for withholding payment. The decision provides important guidance on adjudication enforcement, jurisdictional challenges and the increasingly technical disputes surrounding payment notices. Produced in partnership with Oli Worth, partner at Archor LLP, and James Frampton, barrister at Keating Chambers.

Tax analysis: In Cheshire Cavity Storage 1 Ltd, the Court of Appeal upheld the Upper Tribunal’s (UT) decision that the costs of creating underground cavities for storing gas did not qualify for capital allowances because the cavities were not plant.

Planning analysis: In Westminster CC v Gems House Residences, the Court of Appeal dismissed Westminster City Council’s appeal and upheld the High Court’s construction of an affordable housing mortgagee exclusion clause in a section 106 agreement. It held that a purchaser from the mortgagee was not bound by the affordable housing obligations where the mortgagor qualified as a registered social provider when the relevant mortgage relationship was created, including, in this case, when the existing charge was novated to the replacement provider; the provider did not also have to remain registered when the mortgagee later sold.

Commercial analysis: These were claims for non-payment for cargoes of crude oil. The Commercial Court held that an agreement between the parties to settle their differences and resolve the seller’s claims did not settle all the outstanding claims and that the claims that had not been settled were time-barred. The Court of Appeal has disagreed with the Commercial Court’s interpretation of the settlement agreement and held that it did in fact settle all the seller’s claims. As a result, the limitation defence did not apply. Written by Claire Messer, partner and Reem Shour, PSL at Hill Dickinson LLP.

Public Law analysis: In a significant judgment in Working on Wellbeing Ltd trading as Optima Health v (1) Secretary State for Work and Pensions (2) Department for Work and Pension, the Court of Appeal allowed an appeal by Optima Health following its disqualification from a procurement by Department for Work and Pensions (DWP). In doing so, the Court clarified the circumstances in which contracting authorities may seek clarification, and when that discretion turns into an obligation to do so. Written by Kate Davies, Associate Director at Osborne Clarke.

Planning analysis: The conclusive provisions of section 56(1) of the Wildlife and Countryside Act 1981 (WCA 1981) do not apply when reviewing a definitive map and statement to decide whether a modification order should be made. Instead, there is an evidential presumption against changing the definitive map. This can be rebutted if there is ‘evidence of some substance’ to show, on the balance of probabilities, that a modification should be made. The evidential presumption applies to the most recent version of the definitive map and statement. However, where the review process reveals that the most recent version is in error, the presumption applies to the previous version. In this case the error in the definitive map had been present from the first version. Therefore, the presumption was of no assistance and the decision whether to modify the map had to be made on the balance of probabilities, having regard to all of the available evidence. Written by Emma Dring, barrister at Cornerstone Barristers.

Insurance & Reinsurance analysis: The Court of Appeal has ruled on the effect of an exclusion in a Warranty and Indemnity insurance policy in a M&A transaction. The Court of Appeal’s decision follows the High Court’s decision in Finsbury v Axis last year as the number of W&I claims increase. The case is an important reminder of the difficulty of establishing that there has been an obvious mistake in the drafting of a contract such that the court should re-write the language the parties have used. Consistent with a number of high-profile decisions in recent years the court was not prepared to amend the precise wording that the parties had used even if the result appeared, on its face, to be inconsistent with other provisions of the contract. The decision is a timely reminder for users of W&I to be precise in determining which warranties are covered, balancing the position in a ‘Cover Spreadsheet’ against general exclusions. Written by Alexander Harding, head of Claims at HWF Partners.

Planning analysis: In Wathen-Fayed v SSLUHC, the court had to consider a challenge to the grant of planning permission by an inspector on appeal for a crematorium in Surrey. The first issue concerned the proper construction, application and effect of section 5 of the Cremation Act 1902 (CA 1902), which requires crematoria not to be nearer than 200 yards from the nearest dwelling house except with the consent in writing of the owner. The second issue related to flood risk and whether or not a sequential test was required. Written by Mark Westmoreland Smith KC, barrister at Francis Taylor Building.