TMT analysis: The court held that it had no jurisdiction to try libel claims brought by an English-domiciled company, Napag Trading Ltd (Napag), its CEO and sole director, and its Italian-domiciled subsidiary, Napag Italia Srl (Napag Italia), against the defendant Italian publishers, GEDI Gruppo Editoriale SpA (GEDI) and Società Editoriale Il Fatto SpA (Società Editoriale). The claimants had issued proceedings over six articles published between October 2019 and January 2020. However, because none of them could show, to the necessary standard, all of the elements of a claim for libel under the law of England and Wales, Mr Justice Jay granted the applications sought by the defendants under CPR 11. Besides finding that none of Società Editoriale’s articles had seriously defamed Napag, and that only one of them had seriously defamed the CEO, Jay J held that none of the claimants had established a good arguable case on serious harm for the purposes of section 1 of the Defamation Act 2013 (DA 2013). Written by Luke Browne, barrister at 5RB.

Pensions analysis: Century Property sought mandatory injunctions against Dr Aldiss following his failure to pay instalments in accordance with the terms of a Tomlin Order, and his subsequent failure to satisfy the judgment debt when he did not adhere to the terms of the Tomlin Order. The High Court (Andrew Kinnier KC sitting as a Deputy Judge of the High Court) allowed Century Property’s application for mandatory injunctions against Dr Aldiss’ pension, a Self-Invested Personal Pension (SIPP), meaning that the outstanding debt of over £400k could be enforced against the assets in the SIPP when Dr Aldiss turned 55. The injunctions follow a line of cases beginning with Blight v Brewster, where the court has allowed creditors to enforce against personal pensions, either by obtaining an injunction that the debtor drawdown the pension funds, or in the event of a default, allowing the creditor to instruct the trustees to allow the creditor to make the drawdown directly, once the pension is payable. Written by Elizabeth Grace, barrister at Outer Temple Chambers.

Tax analysis: In R (oao London Fluid System Technologies Ltd and others), the High Court granted permission for judicial review of HMRC’s decision not to make any repayment under the disguised remuneration repayment scheme 2020 to the claimant company. The court’s decision mainly dealt with the preliminary issue of whether the claimant had effectively served HMRC with the judicial review claim.

The High Court has granted the migrant and refugee charity RAMFEL permission to bring a judicial review of the government's treatment of people with 3C leave immigration status. When applying to extend their stay in time, people are automatically granted 3C leave so that their existing rights are protected while their application is processed. The government does not provide those on 3C leave with proof of their immigration status, which RAMFEL states has led people to have difficulties with employment, courses of study and disability benefits. The High Court will consider whether the government's conduct is unlawful.

Construction analysis: The Technology and Construction Court confirmed that Building Liability Orders (BLOs) under the Building Safety Act 2022 may be granted on an anticipatory basis, prior to determination of substantive liability, where it is just and equitable. The court further held that an adjudicator’s award can constitute a ‘relevant liability’ for these purposes, notwithstanding its provisional nature. Emphasising the statutory objective of ensuring those responsible for building safety defects bear the cost, the decision underscores the breadth of judicial discretion and the willingness to pierce corporate structures where liability has been insulated. Practically, the judgment facilitates earlier and more effective recourse against associated entities, particularly in insolvency contexts, and is likely to drive increased reliance on adjudication in building safety disputes. Written by Georgia Whiting, in-house legal counsel of Capita.

Personal Injury analysis: In a recent judgment, Mr Justice Linden found that Article 4(3) of Rome II was engaged, becoming only the third judge in reported case law to so find. In finding that this ‘escape clause’ was engaged, the judge gave valuable practical guidance on how to determine whether or not a tort was ‘manifestly more closely connected’ with a particular country such that the law of that country should apply to resolve the claim, notwithstanding that the claimant and defendant had shared habitual residence in another country (engaging Article 4(2)). Any practitioners dealing with cross-border disputes—whether personal injury or commercial—will find helpful pointers on how the court will approach this test, which famously imposes a ‘high hurdle’ for parties seeking to rely upon it. Written by Luka Krsljanin, barrister at 2 Temple Gardens.

IP analysis: On 10 May 2023, Mr Justice Marcus Smith determined the disputed Fair, Reasonable and Non-Discriminatory (FRAND) royalties that Apple should pay for Optis' portfolio of Standard Essential Patents (SEPs). The consequentials judgment, handed down on 14 February 2024, considered numerous undecided issues following the original FRAND judgment, and determined the scope and terms of the licence to be entered into by the parties. Given that the UK is one of the few jurisdictions in which global FRAND terms may be set by the court, the court's findings in relation to the scope of the licence, and associated issues, are of international significance. Written by Luke Maunder, associate director and Ryan West, associate at Osborne Clarke LLP.

Arbitration analysis: The High Court declined to continue interim anti-suit and anti-enforcement injunctions to restrain civil proceedings brought in Liberia in breach of an arbitration agreement, on the basis that the ICC in the pending arbitral proceedings had determined that the seat of the arbitration was Toronto, Canada, and the claimant did not have a good arguable case that the tribunal would overturn that decision and find the seat to be London. The court considered it did not have jurisdiction over the defendants under CPR 62.5(1)(c) or (2A), each of which requires that the seat of the arbitration ‘is or will be’ in England; nor did it find jurisdiction under any gateway in PD6B paragraph 3.1. Written by Hafsa Zayyan, senior associate at Quinn Emanuel Urquhart & Sullivan LLP.

Insurance & Reinsurance analysis: This summary judgment application was the latest in what is now a lengthy line of authorities considering the scope of business interruption cover in the context of coronavirus (COVID-19). The application concerned insurance claims by two popular high street restaurant chains: Wahaca (a trading style of Oaxaca Ltd) and Flat Iron (a trading style of Flat Iron Steak Ltd). The claims were against the same insurer, QIC Europe Ld (‘QIC’). Both claimants held insurance policies with QIC which provided for business interruption cover between 16 October 2019 and 15 October 2020. They claimed losses of approximately £6m. The claimants succeeded in arguing that nationwide regulations could give rise to cover under a standard non-damage denial of access (‘NDDA’) clause referring to localised danger or disturbances. The claimants failed, however, in persuading the court that it was fanciful for the Defendant to deny that the claimants had suffered at least some loss. Written by Edward Grigg, barrister at 4 New Square Chambers.

IP analysis: The High Court has held that several EU trade mark registrations owned by Red Bull GmbH have been infringed by the advertising and sale of energy drinks and bottled water under various Big Horn signs in the UK and elsewhere in the EU. In reaching its decision, it held that the sole director of Big Horn UK Ltd, the UK company selling the products, was liable as a joint tortfeasor for the acts of infringement.

Dispute Resolution analysis: This topical case arose from the failure (due to flight restrictions resulting from the coronavirus (COVID-19) pandemic) of Travelex Banknotes Ltd (TBL) to provide banknotes to Rawbank SA (the largest bank in the Democratic Republic of Congo), resulting in a claim for $US 60,072,000. The court subsequently considered on an application for summary judgment the rate of pre-action interest, whether a Part 36 offer was genuine and if so, the consequences, and whether damages should be payable immediately, in circumstances where Travelex Banknotes Ltd presented no defence and were restructuring to avoid insolvency. Mr Justice Zacaroli granted judgment. Rejecting Rawbank SA’s argument for interest at a commercial borrowing rate, the court awarded pre-action interest at the contractual rate of 2% above Barclays Bank base rate up to the end of the relevant Part 36 period for acceptance (25 May 2020) and 8% judgment debt interest thereafter, costs of the action and application awarded on the standard basis to 25 May 2020 and indemnity costs thereafter, with payment of damages within 14 days. Written by Richard Allen, costs lawyer and senior pricing consultant with Burcher Jennings, validatum and virtual pricing director.

Law360: The High Court has sentenced the president of a Moroccan importer of cereal grains to a year's imprisonment after his company failed to comply with an asset disclosure order over a US$3.5m arbitral award issued to a subsidiary of Archer Daniels Midland Co. (ADM International) in Switzerland.