Immigration analysis: On 23 October 2024, the Supreme Court handed down its judgment in CAO v SSHD (Northern Ireland). In a unanimous decision delivered by Lord Sales and Dame Siobhan Keegan in a joint judgment, the Supreme Court allowed the SSHD's appeal, finding that the First-tier tribunal (FTT) committed no error of law when considering the respondents asylum application, had applied EHCR, art 8 properly and had regard to the best interests of the respondent’s daughter as a primary consideration, who the FTT were not satisfied would be subjected to female genital mutilation on return to Nigeria. The respondent complained that the SSHD had failed to comply with BCIA 2009, s 55(3) and the section 55 statutory guidance, after failing to refer to it in its decision letter to the respondent, and that the FTT erred in law by failing to take this into account. The court held that substantive compliance with the guidance is sufficient, and the SSHD had therefore not failed to comply. Regardless of whether the SSHD breached BCIA 2009, s 55(3), the court emphasises that it would not have affected the outcome of the appeal as the FTT's decision is a fresh determination which supersedes the decision of the SSHD and the duty to consider BCIA 2009, s 55(3) does not extend to the FTT. Rather, the basis of the FTT's obligation to have regard to the child’s best interest is ECHR, art 8. The court found that there was no inquisitorial or procedural requirement for the FTT to obtain more information about the child in this case, such as by directing that she be interviewed, but that there may be in other cases. Jennifer Blair, barrister in Lexis Nexis UK Immigration Practical Guidance, comments on the judgment.

The Supreme Court unanimously confirmed that the time bars set out in the Hague Rules and the Hague Visby Rules apply to breaches of duty by carriers occurring before discharge but before or at the time of delivery, including misdelivery and breaches occurring before loading. It also held that Clause 2(c) of the bills of lading does not disapply the provisions of the Hague Visby Rules with regards to events occurring after discharge was completed. Natasha King, barrister at 4 Pump Court, comments on the judgment.

The Supreme Court has sided with the High Court in finding that Sky has applied for its trade marks in bad faith and that the procedure the court adopted in making the decision at first instance was not unfair, reversing the Court of Appeal’s findings. However, it agreed with the Court of Appeal’s finding that, on the basis of the narrowed specification of goods and services, Cloud Migration, SkyKick’s email migration product and service, did not infringe Sky’s trade marks. In the judgment, the Supreme Court also clarified that Regulation (EU) 2017/1001 (the EU Trade Mark Regulation) continues to have direct effect in the context of proceedings pending before a UK court which has been designated as an EU trade mark court prior to IP completion day. Giles Parsons, partner at Browne Jacobson, shares his views on the decision.

Tax analysis: In Centrica Overseas Holdings Limited v HMRC, the Supreme Court dismissed the taxpayer’s appeal against the Court of Appeal’s decision that fees incurred after the decision to sell a subsidiary was taken were ‘expenses of a capital nature’ and therefore, pursuant to section 1219(3)(a) of the Corporation Tax Act 2009 (CTA 2009), not deductible as expenses of management.

The Supreme Court considered a Francovich damages claim brought by the appellant against HM Treasury in respect of loss and damage which it asserted had flowed from the UK’s withdrawal of the low value consignment relief from VAT in 2012. The appellant alleged that the removal of the relief constituted a serious breach of EU law which was contrary to the Treaty on the Functioning of the European Union (TFEU) and general principles of EU law, including principles of equal treatment and proportionality. The Supreme Court rejected the claim, finding that the UK had not breached EU law and that the appellant had no reasonable grounds for the claim.

The Supreme Court unanimously dismissed Lifestyle Equities appeal, holding that the defendant company directors, the Ahmeds could not be liable either for procuring the infringements of Lifestyle’s trade marks or on the basis of a common design, when they were not aware of the essential facts which made the use of the signs in question, by the company of which they were directors, wrongful. Additionally, the Ahmeds could not be required to account for profits made by the company and on the facts found had not themselves made any profits from the infringements. Dr Tim Sampson, Barrister at Lamb Chambers, and Emma Dunnill, Senior Associate at RPC comment on the Supreme Court's judgment.

Property analysis: Stephen Hockman QC and Mark Beard, of Six Pump Court, examine the Supreme Court’s decision that the appellant Environment Agency’s imposition of licensing conditions on the respondent owner of a salmon fishery which limited, without compensation, the number of fish he could catch had breached his rights under Article 1 of Protocol 1 of the European Convention on Human Rights (A1P1 ECHR).

The Supreme Court has allowed the appeal by a majority, holding that litigation funding agreements (LFAs) where the litigation funder is entitled to a proportion of damages constitutes a damages-based agreement (DBA). On the facts, as the LFAs had been entered in to without satisfying conditions for DBAs, they were unenforceable. Thomas Mason, barrister at Hailsham Chambers and Matthew Waszak, barrister at 4 New Square Chambers comment on the implications of the judgment.

The Supreme Court has unanimously allowed Mr Mueen-Uddin’s appeal, holding that the order striking out his claim as an abuse of process should be set aside, and that he should be permitted to pursue his claim against the Home Secretary at trial. Alex Vakil, partner at RPC, comments on the Supreme Court's judgment.

Public Law analysis: This decision shows that the English courts would be prepared to hold UK government agents to account for torts committed elsewhere by applying English, rather than foreign, laws. The Supreme Court held that the lower courts erred in their approach to the application of section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (PIL(MP)A 1995) by making clear that what the court has to focus on the factors connecting the elements of the torts (as opposed to conduct by the alleged tortfeasors) to the country whose laws fell to be applied, whether under the general rule in PIL(MP)A 1995, s 11 or otherwise. Written by Tetyana Nesterchuk, barrister at Fountain Court Chambers.

The Supreme Court has unanimously allowed Mr Menzies’ appeal, holding that there must be an agreement as to the amount to be paid in respect of the bill of costs and that the delivery of the bill alone does not suffice and restoring the order for an assessment. Shilpa Shah of Ropewalk Chambers, David Juckes of Hailsham Chambers and Nicola Shaldon of 4 New Square Chambers discuss the implications of the judgment.

TMT analysis: In this judgment, the Supreme Court ordered the retrial of a litigant in person’s libel claim because the original trial had been rendered unfair by the High Court judge’s harassment and intimidation of him with ‘immoderate, ill-tempered’ and ‘offensive’ language. The court also clarified that although the public interest defence under section 4 of the Defamation Act 2013 (DA 2013) drew on the defence established by Reynolds v Times Newspapers Ltd, the two defences were not the same, and so the factors listed in Reynolds on ‘responsible journalism’ should not be used as a checklist to determine the reasonableness of a publisher’s belief that publication was in the public interest in the context of DA 2013, s 4. Written by Heather Rogers QC, of Doughty Street Chambers.