Tax analysis: In R (on the application of Thomas Holdings Ltd & others), the High Court dismissed claims for judicial review in a case which concerned assessments made for amusement machine licence duty (AMLD) for periods to 31 July 2006. The High Court found that HMRC acted reasonably in refusing to apply Extra Statutory Concessions (ESCs) 3.4 and 3.5.

Planning analysis: In R (Parkes) v Dorset Council, the High Court had to consider a judicial review application by Carralyn Parkes (‘Parkes’), a town councillor and the mayor of Portland Town Council, who sought a determination by the court that Dorset Council had erred in law in determining it could not take planning enforcement action against the use and/or stationing of the Bibby Stockholm barge, notwithstanding that the Home Secretary had not applied for planning permission. Parkes contended that (a) the area of the sea bed above which the Bibby Stockholm is stationed forms part of the ‘land’ which is subject to planning control under the Town and Country Planning Act 1990 (TCPA 1990) and (b) the use of the barge constitutes a material change in the use of that land so as to constitute ‘development’ requiring planning permission. The application for judicial review was dismissed. The High Court found that neither the area of the sea bed above which the Bibby Stockholm is moored, nor Portland inner harbour, nor the ‘inner waters’ in Weymouth bay extending to the baselines of the territorial sea, form part of the area of Dorset Council. The High Court stated further that it would be insufficient to make the location of the Bibby Stockholm subject to planning control as it is not enough that a site should fall within the area of a local planning authority (LPA). It must also constitute ‘land’. ‘Land’ under the TCPA 1990 does not cover ‘land covered by water’ (unlike the Scottish definition) and so the English planning regime, unlike the Scottish regime, does not apply to the sea bed beyond the mean low water mark (‘LWM’). Written by Martha Grekos, barrister at MGLC Legal Ltd.

Corporate analysis: LetterOne Core Investment, S.A.R.L. and another) v Secretary of State for Business, Energy and Industry, concerning a judicial review of a final order made pursuant to section 26(3) of the National Security and Investment Act 2021 (NSIA 2021) made by the Secretary of State for Business, Energy and Industrial Strategy requiring LetterOne to sell broadband business Upp Corp Ltd on national security grounds (Final Order). The High Court dismissed the challenge.

Planning: The claimant developer challenged the decision of a local planning authority to accept the recommendations of the Examiner into a draft neighbourhood development plan and to proceed to a neighbourhood planning referendum. Among the issues were whether national policy and guidance required a neighbourhood plan to allocate sites for housing to meet a strategic requirement in the development plan and the requirements of procedural fairness during the neighourhood plan-making process. The High Court dismissed the claim. Written by Howard Leithead, barrister at No5 Barristers’ Chambers.

Arbitration analysis: George Spalton and Ian McDonald of 4 New Square discuss the Commercial Court decision in Dreymoor Fertilisers Overseas v EuroChem Trading where Mr Justice Butcher dismissed two jurisdiction challenges brought by the claimant (Dreymoor) under sections 32 and 67 of the Arbitration Act 1996 (AA 1996), in relation to ongoing London Court of International Arbitration (LCIA) and International Court of Arbitration of the International Chamber of Commerce (ICC) arbitrations. In dismissing the challenges, Butcher J applied the ‘liberal or generous interpretation’ of arbitration clauses approach propounded in Fiona Trust v Privalov.

Restructuring & Insolvency analysis: This claim was brought by the Secretary of State for Business, Energy and Industrial Strategy against Mr Vipul Rajgor, formerly the sole director of Javazzi Ltd (Javazzi), under section 6 of the Company Directors Disqualification Act 1986 (CDDA 1986). The charge made against the director was that he failed to ensure Javazzi maintained or preserved adequate accounting records, or, in the alternative, failed to deliver up accounting records on behalf of Javazzi. His Honour Judge Mithani QC (author of Mithani: Directors’ Disqualification) found in favour of the Secretary of State and disqualified the defendant for a period of seven years. Written by Christopher Buckingham, barrister at Enterprise Chambers.

Property Disputes analysis: This appeal concerned the consequences (due to a mistake by the Land Registry) of the non-registration of a notice claiming a new lease of a flat pursuant to section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993). The High Court considered the extent of the court’s power to make a consequential order following an order to amend the Land Register under Schedule 4 of the Land Registration Act 2002 (LRA 2002). Moreover, it considered the application of the test as to whether it would be ‘unjust for an alteration not to be made’.

Tax analysis: In The King (oao Hotelbeds UK Ltd) v HMRC, the High Court decided that HMRC should have exercised its discretion under the Value Added Tax Regulations 1995 (VAT Regs 1995), reg 29(2) to permit VAT recovery. It found that, although there was an absence of VAT invoices, there was sufficient alternative evidence of the VAT incurred.

Property Disputes analysis: This is the first High Court case to hold that defective works by a developer gave rise to a ‘relevant liability’ as a result of a ‘building safety risk’ under section 130(3)(b) of the Building Safety Act 2022 (BSA 2022), paving the way for the claimant right to manage company (RTM Co) to apply at a subsequent hearing for a building liability order (BLO) against the parent company of the insolvent developer. The Technology and Construction Court (TCC) gave guidance on the procedure for seeking a BLO. Further, the RTM Co was, under an agreement to purchase the property, able to recover against the developer and by extension against the parent company as guarantor, all of the individual leaseholders’ losses for breach of covenant in their leases. Written by Tiffany Scott, barrister, Wilberforce Chambers.

Pensions analysis: In a keenly anticipated decision, Mrs Justice Bacon held that: (i) section 37 of the Pension Schemes Act 1993 (PSA 1993), as amended by the Pensions Act 1995 (PA 1995), rendered void an alteration to the rules of a formerly contracted-out pension scheme relating to section 9(2B) rights (as defined in the Occupational Pension Schemes (Contracting-out) Regulations 1996 (the 1996 Regulations)), in so far as the amendment was introduced without the actuarial confirmation required by reg 42 of the 1996 Regulations; (ii) the rights in question included both past and future service rights; and (iii) all alterations, not merely those which would or might have adversely affected such rights, were so caught. The decision has potentially very significant implications for salary-related schemes that were formerly contracted out. Written by Henry Day, barrister at Radcliffe Chambers.

Local Government analysis: In this case, the High Court declared a local council’s approach to arranging respite care for a person with eligible social care needs to be unlawful. The court held that the council had acted unlawfully by offering only one respite care option in circumstances where the council had not devised a transition plan which demonstrated that it was realistic to believe that the person could be supported to attend that placement despite their own hostility to going there. The decision demonstrates the sort of planning the court will expect a local council to do if the council considers that only one respite option can or should be offered. Produced in partnership with Alexander Campbell, barrister at Cornerstone Barristers.

TMT analysis: His Honour Judge Hacon, sitting as a Deputy High Court judge, has delivered a judgment finding that domain names are intangible personal property. The case involved the highly valuable domain name, blackjack.com, which was assigned to a Uruguayan company, Perlake Corporation SA (Perlake). Under the terms of the assignment, Perlake was contractually obligated to pay Hanger Holdings (Hanger), a Cayman Islands company, commission as a percentage of revenue made through the website business conducted through the domain name. Following liquidation of Perlake, the domain name was transferred to an individual, Mr Croft, causing Hanger to issue legal proceedings for a declaration that it was the equitable owner of the domain name and the goodwill generated through its use. HHJ Hacon held that a domain name is intangible personal property. Therefore, Hanger had an equitable interest in the domain name as the result of material breaches of the agreement by Perlake which caused the title in the domain name to revert to Hanger. Nothing had been done to deprive Hanger of that interest and it was entitled to call for assignment of the legal title in the domain name. Written by Joshua Marshall, senior associate, at Fieldfisher LLP.