Dispute Resolution analysis: The Supreme Court has considered and comprehensively stated the law on lawful act economic duress in the context of a dispute between an airline and a travel agent. Written by Phillip Patterson, barrister, Gatehouse Chambers.

Arbitration analysis: The Supreme Court has provided guidance on the application of both section 69 of the Arbitration Act 1996 (AA 1996) and the Gafta Default Clause: AA 1996, s 69: Broadly drafted questions of law for which permission to appeal has been granted may be amended by appellant courts so long as their substance remains unchanged. Further, under AA 1996, s 69, (i) permission to appeal may only be granted in relation to questions of law which were fairly and squarely before the arbitration tribunal for determination; and (ii) the appellant court has no jurisdiction to make findings of fact. While an appellant court may infer facts that had not been expressly articulated in an award, such findings must ‘inevitably follow’ findings that had been so made para [74]. The Gafta Default Clause: Consistent with both the compensatory and mitigation principles of the law of damages, the starting point for the assessment of damages under the Gafta Default Clause is the substitute sale or purchase of the goods in question. If this is not an appropriate means of establishing a default price for the goods, such price should be established by reference to the market price of the goods. Where there is a dispute as to the market by reference to which the value of the goods should be established, the court must determine the market in which it would be reasonable for the goods to be purchased or sold. Written by Chris Felton, partner and Katie Dyson, partner at Gardner Leader LLP.

The Supreme Court has unanimously allowed the Crown Prosecution Service’s appeal, holding that the focus under section 5(1)(d)(iii) of the Domestic Violence, Crime and Victims Act 2004 (DVCVA 2004) is on the circumstances in which the unlawful act occurred, rather than requiring foresight of the precise act or method of harm. The court held that, although the nature of the act and the mechanism of injury may form part of the relevant circumstances, a different mechanism of injury is not necessarily determinative. It concluded that the Court of Appeal had adopted an unduly narrow interpretation of section 5(1)(d)(iii) and had wrongly substituted its own view for that of the jury. Sam Green KC, Head of Chambers at St Pauls Chambers and acting for the First Respondent in the case, comments on the judgment.

IP analysis: The Supreme Court has held that post-sale confusion can amount to an actionable infringement and is not confined to being assessed in a subsequent transactional context. It also rejected the argument that extraneous post-sale circumstances cannot be taken into account when assessing similarity between a trade mark and sign. While rejecting these arguments on errors of law, the Supreme Court nevertheless upheld the appeal, finding the Court of Appeal had been wrong in assessing the trial judge’s conclusion as irrational, and were not justified in substituting their own different views on similarity and likelihood of confusion. The decision cements the status of post-sale confusion as an actionable infringement, and delivers a reminder of the remit of appellate courts and the circumstances in which multifactorial assessments of the trial judge should be reevaluated. Written by Nick Smee, partner at Browne Jacobson LLP.

In SKAT v Solo Capital Partners and others, the Supreme Court has upheld the decision of the Court of Appeal that Dicey rule 3 (also known as the revenue rule) does not apply in this case where the Danish tax authority seeks to recover money defrauded from it and not a claim of a sovereign character to enforce unpaid Danish tax or to recover Danish tax. SKAT’s claims against Solo Capital Partners and others to recover the money defrauded from it can proceed to a trial in an English court. As well as outlining a summary of the decision, this News Analysis also contains commentaries from Hugh Gunson, Partner, Charles Russell Speechlys LLP and Jonathan Schwarz, Temple Tax Chambers (Tax Counsel to SKAT).

The Supreme Court in R v Layden, in allowing the prosecution’s appeal, has confirmed that a failure to comply with the procedural requirements in section 8(1) of the Criminal Appeal Act 1968 (CAA 1968) does not deprive the Crown Court of its jurisdiction to re-try a defendant. This decision overturns R v Llewelyn in which the Court of Appeal had quashed the defendant’s conviction due to the failure to arraign him within the two month requirement, stating that such a failure resulted in the invalidity of the retrial proceedings. Although the Supreme Court emphasised that the procedural requirements in CAA 1968, s 8 must be followed, it stated that non-compliance should not deprive the Crown Court of the jurisdiction to re-try a defendant. ‘Total invalidity’, as stated by the court, fundamentally risks bringing the justice system into disrepute as it undermines the purpose of CAA 1968, s 7. Paul Jarvis KC, barrister at 6KBW College Hill, comments on the implications of the judgement.

Tax analysis: In Royal Bank of Canada (RBC), the Supreme Court dismissed HMRC's appeal and upheld the Court of Appeal's decision that Article 6 of the UK-Canada double tax treaty (DTT) (immovable property) did not apply to the payments. The payments made by BP (and later by Talisman) to RBC could not be taxed in the UK because they did not fall within the extended meaning of immovable property even though they were calculated by reference to the volume and price of the oil extracted by its UK subsidiary.

The Supreme Court has unanimously dismissed the appeal in the case Anwar v The Advocate General for Scotland by concluding that, in Scotland, the current employment tribunal practice on interim remedies in discrimination claims is proportionate, and the principles of equivalence and effectiveness have been followed. Mitchell Abbott, associate at CMS, and Lorna Davis, partner at Harper Macleod, comment on the case.

The Supreme Court has unanimously dismissed Ms Kireeva’s (Russian bankruptcy trustee’s) appeal to overturn the Court of Appeal’s’ decision regarding matters arising out of the bankruptcy of Mr Bedzhamov. Peter Declercq and Patrick Elliot, partners at DCQ Legal (who acted for Ms Kireeva), discuss the implications of the judgment.

Family analysis: The Supreme Court has considered whether there is jurisdiction to set aside a validly made adoption order other than by way of an appeal and held that there is no power under the High Court’s inherent jurisdiction to revoke a legally valid adoption order and doing so would be incompatible with the provisions of the statutory scheme, ie the Adoption and Children Act 2002 (ACA 2002). Further, there are no welfare or human rights considerations that would provide an exception for the use of the inherent jurisdiction. The appeal was dismissed. Forum Shah, partner, and Gemma Adams, associate solicitor, at Dawson Cornwell LLP examine the issues.

The UK Supreme Court has held that when information falls under multiple qualified exemptions (QEs) in the Freedom of Information Act 2000 (FIA 2000), public authorities may consider the combined public interest in maintaining all applicable exemptions. The Court rejected the ‘independent approach,’ which would have required each exemption to be assessed separately. Dr Lewis Graham of Christ's College Cambridge and the Public Law team at LexisNexis comment on the implications of the judgment.

Tax analysis: In HMRC v Professional Game Match Officials Ltd, the Supreme Court has endorsed the approach to employment status assessments set out by the Court of Appeal in HMRC v Atholl House Productions Ltd, with mutuality of obligation and the existence of control being necessary, but not necessarily sufficient, conditions for a contract of employment to exist. In analysing the scope of those concepts as pre-conditions to a finding of employment, the Supreme Court made clear that the bar to their satisfaction is set at a low level and therefore what is of greater significance and importance is the subsequent overall assessment taking into account the terms of the contract and surrounding circumstances, which itself will require further consideration of the nature and extent of any control and ongoing mutuality of obligations. Written by David Smith (partner) and Melissa Beer (knowledge lawyer) at DLA Piper UK LLP.