Pensions analysis: In the determination of Mr N, CAS-102084-N1D3, the Pensions Ombudsman has rejected a complaint about the indexation level on a pension increase. The Ombudsman found that while the scheme rules specified increases of RPI capped at 3%, there were no grounds for higher increases despite past overpayments. The determination highlights the precedence of scheme’s governing documents and the need for consistent and updated scheme literature. Martin Scott of gunnercooke LLP looks at the decision.

Pensions analysis: In the determination of Mrs S, CAS-45582-S0J0, the Pensions Ombudsman has rejected a complaint that a scheme trustee wrongly exercised its discretion in the distribution of a death benefit. There were no grounds in which to interfere with the exercise of the trustee discretion to pay part of a lump sum death benefit to the girlfriend of the deceased member rather than to the deceased’s family. Martin Scott of gunnercooke LLP looks at the decision.

Information Law analysis: In a landmark ruling, the Court of Appeal overturned a High Court decision which denied compensation to individuals affected by a data breach. The judgment contains helpful guidance regarding compensation claims made pursuant to Article 82 of the United Kingdom General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (the UK GDPR), including the requirements for establishing data protection infringement, the scope of non-material damage and, more broadly, the position of the UK courts in relation to EU Court of Justice case law and its application in the context of domestic data protection rules. The Court of Appeal held that bringing a data protection infringement claim does not require proof that personal data was actually disclosed to third parties. Unlawful processing is a sufficient basis in principle for damage to be suffered. There is also no minimum threshold for non-material damage when it comes to a data subject’s entitlement to compensation under UK data protection law. The scope of such damage can include an objective, well-founded fear or apprehension of misuse of personal data. This judgment is also a helpful reminder of the broad scope of activities that fall within the concept of processing and the importance of controllers’ compliance with Articles 24, 25 and 32 of the UK GDPR and the general principles in Article 5(1) of the UK GDPR. Written by Marija Nonkovic, associate at Kemp IT Law.

Arbitration analysis: Article 3(1) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations, which is applicable to this case, provides that general principles applicable to international contracts, such as the UNIDROIT Principles on International Commercial Contracts, do not constitute a law which may be chosen by the parties. The refusal to apply the UNIDROIT Principles as the applicable law is in fact binding on the judge who must apply the Rome Convention or the Rome I Regulation (for contracts concluded from 17 December 2009). However, an international arbitrator, who under French international arbitration law decides the dispute in accordance with the rules of law chosen by the parties or, failing that, in accordance with the rules of law which he considers appropriate, may on the contrary designate the UNIDROIT Principles as applicable. This decision highlights the distinction to be made between ‘law’ and ‘rules of law’, and the extent to which party autonomy is recognised in both state court and arbitration proceedings. Written by Caroline Kleiner, full law professor at Université Paris Cité.

A 'no increase statement' is defined in Rule 32.2(a) as a statement as to the finality of an offer, including a statement that the offer will not be 'increased', 'raised', 'amended', 'revised', 'improved' or 'changed' and any similar expression. Under Rule 32.2(b), if a no increase statement is made by or on behalf of an offeror, its directors, officials or advisers, and not withdrawn immediately if incorrect, the offeror will not be allowed subsequently to amend the terms of its offer in any way, even if the amendment would not result in an increase of the value of the offer (eg the introduction of a lower securities exchange alternative), except: (1) where it specifically reserved the right to do so in certain circumstances at the time the no increase statement was made and those circumstances subsequently arise; or (2) in wholly exceptional circumstances.

Corporate Crime analysis: The claimant company (Dana Astra) brought a challenge, pursuant to section 38(1) of the Sanctions and Money Laundering Act 2018 (SAMLA 2018), against the decision of the Secretary of State to designate it for the purposes of the asset freeze sanctions under the Republic of Belarus (Sanctions) (EU Exit) Regulations 2019 (the 2019 Regulations). This case provides, for the first time, a judicial determination of the territorial scope of Article 1 of Protocol 1 of the European Convention on Human Rights (A1P1 ECHR) in the context of sanctions decisions pursuant to regulations made under SAMLA 2018. The court held that where a foreign person with no property nor presence in the UK is designated, that designation is not an exercise of UK jurisdiction sufficient to engage the ECHR, even where the designation may affect the person’s ‘interests’. The decision also provides valuable lessons on the operation of the regime in practice more generally, particularly in the context of proportionality challenges. Written by Rachel Barnes KC, Nicholas Yeo KC and Charlotte Branfield, barristers at Three Raymond Buildings.

Arbitration analysis: The Paris Court of Appeal confirmed that French courts lacked international jurisdiction to grant interim relief notwithstanding previously upheld jurisdiction and arbitration clauses. Applying Article 35 of Regulation (EU) No 1215/2012 (Brussels I bis), the court held that a provisional payment will qualify as a provisional or protective measure only where repayment is adequately secured and the measure is linked to assets within the court’s territorial jurisdiction. It also found that interim relief in support of arbitration requires genuine urgency, which was absent after years of delay. The decision highlights the strict approach taken to reversibility and urgency, and the evidential burden on parties seeking interim measures outside the forum competent on the merits. Produced in partnership with Clément Fouchard of Reed Smith.

Immigration analysis: The Court of Appeal has ruled that the Secretary of State for the Home Department (SSHD) had not acted ‘irrationally’ by failing to provide biometric documents, or e-visa documents, to those migrants who have statutorily extended leave under section 3C of the Immigration Act 1971 (IA 1971). The Court of Appeal also ruled that the SSHD, had not breached the purpose of the IA 1971, and so, had not acted contrary to the ‘Padfield’ principle. However, the question whether this non-provision has engaged statutory obligations under section 55 of the Borders, Citizenship, and Immigration Act 2009 (BCIA 2009) has been adjourned pending further arguments by both parties. Written by Parvez Anwar Pantho, caseworker at Duncan Lewis.

Dispute Resolution analysis: Does the absence of a judicial determination prevent Part 36 consequences, specifically those under CPR 36.17(4) from arising? The Senior Courts Costs Office considered that in circumstances where there is a live Part 36 offer this still amounts to the resolution of the claim and that accordingly Part 36 consequences apply where a detailed assessment is concluded by agreement rather than assessment, particularly where the settlement figure ultimately results in an earlier Part 36 offer being beaten. Written by Adam Fox, costs lawyer and director at NWL Costs Lawyers.

TMT analysis: An Italian publisher successfully challenged the court’s jurisdiction to grant an internet injunction in circumstances where the claimant had brought libel proceedings in England and Wales on the ‘mosaic basis’ under Article 7(2) of Regulation (EU) 1215/2012, Brussels I (recast). Mrs Justice Tipples held that in Saïd v Groupe L’Express, Mr Justice Nicol J had correctly summarised the effect of the Court of Justice’s judgment in Bolagsupplysningen OÜ v Svensk Handel. Namely, a claimant seeking relief such as an injunction in relation to an internet publication must do so in either: the defendant’s home state; or, the Member State where the claimant has their ‘centre of interests’. Written by Hope Williams, pupil Barrister at 5RB and Luke Browne, barrister at 5RB.

Restructuring & Insolvency analysis: The Plan Company successfully transferred its centre of main interests (COMI) from Luxembourg to the UK in order to avail itself of the Pt 26A Restructuring Plan provisions. Following Re AGPS Bondco [2024] EWCA CIV 24 the court had no power to sanction the Plan because, ‘By using the same concept of a “compromise or arrangement” in Part 26A, Parliament intended that a court should have no jurisdiction to sanction a confiscation or expropriation of rights for no compensation under Part 26A just as it would have no jurisdiction under Part 26 (see [258] and [270])’. Instead the sanction hearing became a convening hearing for an amended plan where the court also ordered that the Subordinated Creditors would not take part in any meetings as they had no economic interest under the relevant alternative. Written by Andrew Mace, barrister at 9 Stone Buildings, Lincoln’s Inn.

Restructuring & Insolvency analysis: The High Court set aside an order permitting alternative service of a bankruptcy petition on Mr Ghanim Bin Saad Al Kuwari (Mr Ghanim). The petition was presented by Emirates NBD Bank PJSC (the bank) and was based on an unpaid English judgment of approximately £16.3 million, itself enforcing a Dubai judgment. Before presenting the petition, the bank had validly served a statutory demand at three London properties linked to Mr Ghanim. It later tried unsuccessfully to serve the petition personally there and obtained an order allowing alternative service by advertisement, steps at the properties, and email. Mr Ghanim challenged that order, arguing that he was in Qatar when it was made and when service occurred, so permission to serve out of the jurisdiction was required. He also said personal service had not been shown to be impracticable because the bank had made no attempt to serve him in Qatar. Insolvency and Companies Court Judge (ICCJ) Greenwood agreed. Section 265 of the Insolvency Act 1986 (IA 1986) concerns the connection needed for a bankruptcy order but does not remove the need for valid service establishing jurisdiction. As there was no good arguable case that Mr Ghanim was in England, and service in Qatar was never attempted, the order was set aside. Produced in partnership with Lowri Mumford, associate at Addleshaw Goddard LLP.