Local Government analysis: The High Court refused to continue a deprivation of liberty (DoLs) order (Order) imposed in connection with a 16-year-old boy (‘J’) who was also the subject of licence conditions and supervised by the Youth Offending Team (YOT). The court determined the local authority (Authority) had ‘failed to show reasonable cause to believe that J was likely to suffer significant harm in the absence of an Order so the condition in section 100(4)(b) of The Children Act 1989 (ChA 1989) was not satisfied’. Further, the judge opined that YOT’s management of J was ‘sufficient to exclude any reasonable cause for belief that J might suffer significant harm’ and therefore the court could not invoke its inherent jurisdiction. This case provides a comprehensive analysis of the legal principles concerning ChA 1989, s 100(4) and the interplay between DoLs and the licensing regime for the release of young offenders. Written by Nicola Wheater, associate at HCR Law.

Tax analysis: When will payments to an employee under a deed constitute employment income from which income tax is deductible by way of PAYE? Phil Rutherford, senior tax director at Molson Coors Europe, comments on the decision in Telfer v Sakellarios.

Commercial analysis: The High Court has rejected Sainsbury’s claim for judicial review in relation to an Advertising Standards Authority (ASA) adjudication on a comparative advertising complaint about an advertising campaign by Tesco. What implications could this decision have for advertisers and their legal advisers?

Pensions analysis: The trustees and managers of three alleged scam pension schemes appealed a determination of the Pensions Ombudsman that they were liable for dishonest breaches of duty in respect of the scheme investments and were required to pay over £5m into the schemes. There were four grounds of appeal, all of which failed. The judgment provides a helpful reminder of the scope of appeals from Pensions Ombudsman determinations. Crucially, an appeal can only be made on a point of law and not as a challenge to a factual finding by the Ombudsman, unless the Ombudsman has reached an improper decision on the evidence. Also to note was the court’s decision that the schemes did not comprise separate sub-trusts for each member, meaning the appellants were required to reconstitute the assets of the schemes generally. Written by Ben Fairhead and Richard Meers, partner and senior associate respectively at Arc Pensions Law.

Tax analysis: In Sensor Solutions, the High Court refused the company’s application for judicial review of a decision by HMRC not to make repayments under the Disguised Remuneration Repayment Scheme (DRRS) of amounts paid under a voluntary settlement.

Environment analysis: On 17 October 2023, the High Court heard and rejected a specific disclosure application by Friends of the Earth Ltd (FoE). FoE sought disclosure of advice received by Secretary of State (SoS) Michael Gove ahead of his decision to approve plans for a new coking coal mine at Whitehaven in Cumbria. The judge gave useful guidance on the relevant test to be applied in applications for specific disclosure in judicial review proceedings, which will only be granted in exceptional cases, as well as commenting on the duty of the SoS in relation to planning decisions. Disclosure was sought in support of FoE’s grounds for Judicial Review relating to: 1) the relevance of net zero/carbon budgets in planning decisions and the effect of carbon offsets in determining these; and 2) the interpretation of paragraph 217 of the National Planning Policy Framework (NPPF), and whether this should include consideration of international carbon emission impacts. Written by Sarah Ellington, partner at Watson Farley & Williams LLP.

Tax analysis: In Upham and others, the High Court dismissed the claims of a number of investors in a failed tax scheme for compensation from the bank which devised the scheme.

Financial Services analysis: The High Court has ruled that a decision of the Financial Ombudsman Service (‘FOS’) relating to motor dealing and the motor finance industry issued in January 2024 was lawful. The Financial Conduct Authority (‘FCA’) which regulates motor finance was an interested party to the proceedings. A consumer, Ms Lewis, originally complained to the FOS having entered into a conditional sale agreement with Clydesdale Financial Services Ltd (‘Clydesdale’, trading as Barclays Partner Finance) which bought the car from Arnold Clark Automobiles Ltd (‘Arnold Clark’). Her complaint was upheld by the FOS in January 2024. The particular focus of the FOS decision was on the commission arrangements between Arnold Clark and Clydesdale, which affected the interest rate payable by Ms Lewis under the conditional sale agreement. At issue were both the commission arrangements themselves and what was disclosed to Ms Lewis about them. The Ombudsman made a monetary award in Ms Lewis’ favour against Clydesdale, deeming Arnold Clark to be Clydesdale’s agent under provisions in the Consumer Credit Act 1974 (CCA 1974). Written by Rowena Wisniewska, barrister at 4-5 Gray’s Inn Square.

Dispute Resolution analysis: The Commercial Court refused to stay proceedings brought by an English employer against a former employee notwithstanding that the underlying allegations concerned a large-scale ‘team move’ centred on the Middle East. The court held that the defendant had failed to establish that the Dubai courts were an available forum with competent jurisdiction for all of the claims pleaded and, in any event, had not shown that Dubai was clearly or distinctly the more appropriate forum. Particular weight was given to the employee’s domicile in England, the English governing law and exclusive jurisdiction clause in the employment contract, and the statutory protection afforded to employees domiciled in the United Kingdom.

Public Law analysis: Judicial review: the High Court has granted permission to bring judicial review proceedings in respect of 2 out of 8 grounds in the claim by one of the founders of Palestine Action (PA) challenging the Home Secretary’s (SSHD) decision to proscribe PA. In opposing permission Counsel for the SSHD argued that the claimant could apply to the SSHD for PA to be de-proscribed. If this was refused the claimant could appeal to the Proscribed Organisations Appeal Commission (POAC). Counsel for the SSHD argued that there was therefore an adequate alternative remedy, which meant that judicial review was not available. This point was also argued at the interim relief hearing at which the court concluded that it did not, on its own, supply a sufficient basis to say that there was no serious question to be tried. At the interim relief hearing (at which interim relief was refused) the court indicated that the matter could be considered further at the permission hearing. The court determined that this matter should be heard as a preliminary issue at the permission stage. At the permission hearing the court determined the preliminary issue in the claimant’s favour. This was on the basis that an application to de-proscribe, coupled with an appeal to POAC if the application was refused, was not a suitable alternative remedy to judicial review in the circumstances of the case. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square Chambers.

Public Law analysis: The High Court has ruled that Parliament intended that a challenge to Ofcom’s exercise of, or failure to exercise, its powers under section 8(4) of the Wireless Telegraphy Act 2006 (WTA 2006) should be limited to a claim for judicial review. The court further held that Parliament did not intend that a private law claim in damages would be available. The claimant (‘Edge’) claimed damages for breach of statutory duty in respect of WTA 2006, s 8(4) by Ofcom, the UK regulator for telecommunications. The breaches alleged were that Ofcom failed to make regulations which would permit the commercial use of telecommunications apparatus known as ‘GSM Gateways’ without first obtaining a licence. Edge alleged that at all material times it was a commercial operator of GSM Gateways and that the fact that this type of equipment was not exempted from the requirement for a licence had caused it loss and damage. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square Chambers.

Public Law analysis: The High Court has handed down its decision regarding a claim for judicial review made in respect of a decision by the Upper Tribunal on 6 October 2022, refusing permission to appeal from a decision of the First-Tier Tribunal on 26 June 2022. The June 2022 decision dismissed the Claimant’s appeal from the Home Secretary’s refusal of indefinite leave to remain on 26 March 2021. The instant case focused on the procedural implications of a statutory ouster of judicial review, examining the basic distinction between what a judicial review claimant has to demonstrate in order to succeed and which judge, or judges, have the function of dealing with the case. In this case, the judicial review claim sought to impugn an Upper Tribunal decision refusing permission to appeal from a decision of the First Tier Tribunal. Following the introduction of section 11A of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007), if permission to apply for judicial review of a decision of the Upper Tribunal has been refused, the High Court will not have jurisdiction to have an oral hearing of the renewed application for permission to apply for judicial review. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square.