Dispute Resolution analysis: The claimants’ claims for alleged financial losses in excess of £30m arising from the demise of their business following their discontinued prosecution for conspiracy to defraud were struck out by the High Court. The claims were pursued on the basis that, while they were claims for diminution in share value, the so-called Giles v Rhind exception applied, such that the claims were not barred by the usual rule that a shareholder cannot recover for losses which are merely reflective of the company’s loss. The amendments to the claim seeking to place the losses outside the reflective loss principle were not, however, permitted. Written by Charlotte Ventham, junior at 5 Essex Court.

Local Government analysis: Mrs Justice Lang found that the defendant local authority had breached its obligations under section 189A of the Housing Act 1996 (HA 1996) to produce a lawful housing needs assessment and personalised housing plan for the claimant and her four children, two of whom were profoundly disabled. The claimant had become homeless because her accommodation was not suitable for the children’s care needs, one of whom was unable to be discharged from hospital because their home was unsuitable. At the same time Family Court proceedings were underway to determine whether or not three of the children would continue to live with the claimant, and the availability of suitable accommodation was a relevant consideration in those proceedings. A housing needs assessment had to take into account the circumstances in which an applicant had become homeless and the needs of any person who resides or might reasonably be expected to reside with the applicant. Lang J found the most recent assessment, which only considered the needs of the claimant and one of her children, failed to consider these matters and was therefore unlawful. This, along with unreasonable delays in notifying the claimant of changes, also rendered the associated personalised housing plan unlawful. Written by Freya Foster, barrister at Henderson Chambers.

Pensions analysis: In this case the High Court ruled on various challenges to the validity and effect of a process undertaken in 1992 to transfer certain members of a pension scheme from final salary arrangements to money purchase arrangements within the same scheme. The Judgment considers arguments that: (i) the interim amending deeds used to effect the transfer did not annex necessary booklets, (ii) the terms of those deeds were too vague to make the changes, (iii) members did not give informed consent, (iv) a Courage proviso prevented the transfer, alternatively required an underpin for accrued final salary benefits, (v) extrinsic contracts were formed, and allowed transfer, and (vi) the transfer involved unlawful age discrimination. The Court held that the Courage proviso was engaged and required an underpin to be applied. It rejected the other challenges. In doing so it analysed in some detail the proper approach to construction of interim deeds, the impact of a Courage proviso on amendments that change the nature of members’ benefits, the formation of extrinsic contracts and the application of the non-discrimination rule introduced into pension schemes by the Equality Act 2010. Written by Thomas Robinson, barrister at Wilberforce Chambers and part of the Counsel team for Newell Rubbermaid UK Services Ltd.

Local Government analysis: This case considered the question of whether the application of a faith-based over-subscription criteria favouring a particular Christian denomination could amount to indirect discrimination under the Equality Act 2010 in relation to the protected characteristic of race. The court held that while the application of the criteria did amount to indirect discrimination, it was a proportionate means of achieving a legitimate aim. On the application of Bank Mellat v HM Treasury (No 2), the court also determined that the oversubscription policy was a measure rationally connected to the legitimate objective of maintaining the ethos of a particular denomination. Mr Justice Bourne in his judgment also discusses the parliamentary intention behind faith-based over-subscription criteria and the issues arising from public sector duty. Written by Philip Wood, principal associate at Browne Jacobson and Daljit Sambhi, solicitor apprentice at Browne Jacobson.

IP analysis: The High Court has considered several issues remitted to it by the Court of Appeal in the context of a dispute between Merck Global and Merck US in relation to the alleged breach of a co-existence agreement. It set out the basis on which certain of the trade mark registrations at issue in the case should be further partially revoked and ruled that a number of sample uses of the ‘Merck’ name by Merck US constituted trade mark infringement on the basis that they were use of the marks at issue in the UK in the course of trade in relation to the relevant goods or services. It held that such uses were not de minimis. It also set out a detailed summary of the points to be included in the order following judgment, to deal with the relief sought.

Tax analysis: In Jordi Carulla Font, the High Court refused the taxpayer permission to apply for judicial review, holding that HMRC’s letter setting out its provisional view on his treaty residence under the UK–Spain Double Taxation Agreement (DTA) was not a decision amenable to judicial review. Mr Justice Saini ruled that the letter represented only an intermediate step in the Mutual Agreement Procedure (MAP) between the competent authorities of the UK and Spain and had no binding legal effect on the taxpayer.

Corporate analysis: In the context of the sale of a hairdressing business, the High Court recently considered the case law dealing with the interpretation and enforceability of restrictive covenants.

Tax analysis: The High Court dismissed the fraud claims brought by the Danish Tax Authority, Skatteforvaltningen (SKAT) arising out of the cum-ex trading scandal. SKAT alleged that it had been wrongfully induced to pay claims for repayment of Danish withholding tax by misrepresentations made in documents submitted to it. However, the court held that while the refund claims were invalid, SKAT had failed to show that it had been induced to make the payments in reliance on false representations. The documents submitted to SKAT did not contain the majority of the representations alleged by SKAT and the process by which the claims were approved was so mechanistic and unthinking that no regard was had to the alleged misrepresentations. While the court found that many of the defendants were dishonest at the time and were untrustworthy witnesses at trial, this was not sufficient to prove the particular case as pleaded by SKAT. The judgment confirms the importance of factual evidence when establishing claims for misrepresentation Written by Edward Reed (senior advisor), Alice Mason (senior associate) and Victoria Braid (associate) at Macfarlanes LLP.

Tax analysis: In AXA v Genworth, the High Court decided that, in the context of a gross-up clause for tax in hand in a share purchase agreement (SPA), the phrase ‘subject to tax in the hands of the receiving party’ means that the tax must actually be due and enforceable.

Law360: The US Supreme Court's unanimous decision on 16 May 2024 finding that federal courts must honour a request to stay a case after ordering the dispute into arbitration leaves an important subsequent question unresolved—What happens if neither party requests a stay?

Immigration analysis: In the latest structural challenges to the Secretary of State’s ‘no recourse to public funds’ (‘NRPF’) policy, the claimants established that the defendant’s policy was unlawful because it failed to properly instruct caseworkers that they could exercise discretion to lift the NRPF condition from the limited leave to remain of student migrants. The defendant conceded (and the Court declared) that the Secretary of State has a discretion to lift the NRPF condition from the limited leave to remain of migrants on all forms of visa. Previously, the Home Office approach had been to only consider lifting the NRPF condition in family life, private life and British National overseas (‘BNO’) cases. That restriction no longer pertains. The Defendant has issued a new interim policy for cases where a person requests permission to access public funds while on a visa other than a family, private life or BNO visa.

Tax analysis: In Webster, the High Court denied an application to strike out part of HMRC’s defence against a claim that the transfer of the claimant’s banking and investment data by HMRC to the USA was a breach of her rights as a data subject under data protection law. HMRC’s defence was that the claim was an abuse of process and it centred on disclosure of the identity of the person funding the claim. The funder was said by the claimant to be doing so on the condition that its identity remained undisclosed to the parties and the court. Its identity was known only to the claimant’s solicitors.