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 (FTT) 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 FTT. 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.

The practical application of notice provisions contained in a personal guarantee were considered by the High Court in the case of United Trust Bank Ltd v Dohil [2012] All ER (D) 06 (Jan). In addition, certain arguments in relation to the enforceability of the guarantee were considered. As a result, practical steps to minimise the possibility of a successful challenge to the enforceability of a personal guarantee can be extracted.

Arbitration analysis: The High Court held that a party to an English-seated arbitration cannot circumvent the supervisory jurisdiction of the courts of the seat by bringing a free-standing, pre-emptive challenge to recognition of an award in a foreign court before enforcement is sought. Granting anti-suit relief against German proceedings commenced by BASF, the court confirmed that objections under Article V of the New York Convention operate as defences to recognition or enforcement proceedings, not as independent causes of action. The decision reinforces the exclusivity of the challenge mechanisms in the Arbitration Act 1996 (AA 1996) and provides important guidance on the limits of collateral attacks on English-seated awards in foreign jurisdictions.

The case of Green v Eadie and Others [2011] EWHC B24 (Ch) considered the application of limitation periods under the Limitation Act 1980 in relation to claims brought under Section 2(1) of the Misrepresentation Act 1967. The court held that the limitation period for such claims is 6 years from accrual of the cause of action which in this case was entering into the contract. The case is a reminder of the importance of ensuring a claim is not time-barred.

IP analysis: The court has rejected the most recent claim from easyGroup about the use of the prefix ‘easy’ in a brand name. There is relevant guidance about trade mark confusion, about how specifications can be narrowed, among other things. Written by Giles Parsons, partner at Browne Jacobson LLP.

Public law case analysis: The High Court has ruled that the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (‘the Regulations’) are ultra vires. In 2022 the Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) amended the Public Order Act 1986 (POA 1986) to confer upon the Secretary of State a power to amend the definition of ‘serious disruption’ in the POA 1986 by means of subordinate, secondary, legislation. In April 2023, before the Public Order Act 2023 (POA 2023), which contained two amendments to the Public Order Bill in relation to expanding the definition of ‘serious disruption’ to anything which was ‘more than minor’ received Royal Assent, the Secretary of State laid a draft of the Regulations before both Houses of Parliament by way of affirmative resolution procedure. The Regulations contained proposed amendments to the POA 1986 which had been rejected by the House of Lords during the passage of the Public Order Bill. However, the draft Regulations laid before Parliament, under the affirmative resolution procedure, in preponderant part repeated the provisions about processions and assemblies so recently rejected by the House of Lords. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square.

Commercial analysis: The High Court has granted an interim injunction in the case of Senior Care at Home Ltd (t/a Right at Home UK) v Adult Home Care Ltd, in which Senior Care at Home Ltd (Senior Care), the franchisor, investigated and concluded that Adult Care Home Ltd, a franchisee, was in breach of its obligations and terminated the franchise agreement. Senior Care sought an interim injunction for delivery up and restraint of trade orders that was granted by the court. The decision considers the context of a franchise model, as the court rules that damages would not be an adequate remedy and the balance of convenience was with Senior Care. Written by Gordon Drakes, partner and co-head of franchising and commercial, at Fieldfisher.

TMT analysis: The High Court has ruled that a trade union is entitled to bring a claim for libel in its own name. This meant that in this case, the defendant's application to strike out the libel claim, or alternatively for a declaration that the court had no jurisdiction to hear it, was dismissed. Written by Helen Hart, senior practice development lawyer at Lewis Silkin LLP.

Tax analysis: In Re Waldorf, the High Court sanctioned (ie approved) the company’s restructuring plan under Part 26A of the Companies Act 2006, exercising the cross-class cram down power against HMRC. The court held that HMRC’s tax collection function did not prevent the court from cramming it down where the statutory conditions were met and the plan was fair. It also held that possible future use of the Waldorf group’s tax losses by the Harbour purchasing group was not relevant to the ‘no worse off’ test, although it could be considered as part of the court’s overall discretion.

Local Government analysis: Mr Justice Newton was scathing in his criticism of the failures of a local authority that led to a boy, J, being left in foster care for at least nine months longer than necessary. The High Court judge found that although J’s mother had been acquitted of the murder of J’s half-sister H, the local authority had a ‘wholly negative biased view’ of the mother that was clearly conveyed to J. Vital information was not disclosed to the court by the local authority, including the foster carer’s unwillingness to care for J long-term. Newton J said it was ‘inexplicable’ that crucial information was kept from the court. The judge determined that this was a case where there had been ‘breath taking incompetence (with or without bad faith)’ by the local authority, which resulted in greatly prolonged proceedings and a boy remaining separated from his family for many months. Written by Tahmina Rahman, barrister at 1GC Family Law.

Tax analysis: In Labeikis, the High Court allowed HMRC’s appeal against a previous rejection of its applications to strike out taxpayers’ Part 8 claims as an abuse of process. The correct method of raising issues of public law, as the Part 8 claims attempted to do, was by judicial review. In addition, the Court’s proper role was to adjudicate on real and specific disputes, and not to provide guidance to taxpayers.

Corporate analysis: In this case the High Court considered a provision in an option agreement which purported to give the company’s board an absolute veto over the exercise of the option. The High Court considered whether there was an implied duty on the directors not to act unreasonably, capriciously or arbitrarily in deciding whether to give its consent.