On 12 September 2024, the Supreme Court handed down its judgment in Tesco Stores Ltd v Union of Shop, Distributive and Allied Workers and others. In a unanimous decision in which Lord Burrows and Lady Simler delivered the leading judgment, the Supreme Court agreed with the previous High Court decision and restored the injunction restraining Tesco from terminating employment contracts for the specific purpose of depriving employees of their ‘permanent’ contractual right to retained pay and offering re-engagement without this inclusion. The employment contracts contained an implied term which prevented Tesco from exercising dismissal rights for this purpose. Neil Todd at Thompsons Solicitors, Jonathan Chamberlain and Connie Cliff at Gowling WLG, Philip Harman and Joanne Bell at DAC Beachcroft and Charlotte Gunn at Stevens & Bolton provide their comments on the judgment.

Personal injury analysis: Duncan Fairgrieve, senior fellow in Comparative Law at the British Institute of International and Comparative Law and barrister at 1 Crown Office Row, examines the Supreme Court’s decision that the police do not enjoy a general immunity from suit in respect of their negligent acts when investigating or preventing crime—they are under a duty of care to avoid causing personal injury where such a duty would arise according to ordinary principles of the law of negligence.

Property analysis: The Supreme Court held that the owner of a new building had been served with a completion notice notwithstanding that transmission was via a person not authorised to accept service.

Personal Injury analysis: The Supreme Court has held that the respondent NHS Trust was liable in negligence to the appellant, whose condition deteriorated after leaving its accident and emergency (A&E) department when the receptionist overstated the time he would have to wait before being seen. Bradley Martin QC, of 2 Temple Gardens, examines the court’s decision.

The Supreme Court has unanimously dismissed the appeal of Prudential Assurance Company Ltd (Prudential), ruling that VAT was correctly charged on success fees paid to a company called Silverfleet Capital Ltd (Silverfleet) after it left Prudential's VAT group, even though the underlying services were performed while both companies were group members. The judgment clarifies that Article 64 of Directive 2006/112/EC (the Principal VAT Directive (PVD)), applies to contingent 'successive payments' like success fees, with the chargeable event occurring when payment crystallises rather than when services are performed. As well as summarising the decision, this News Analysis contains commentary from Flossie Skinner, Tax Assistant, at Joseph Hage Aaronson & Bremen LLP on the implications of the judgment.

Tax analysis: Elizabeth Kelsey, barrister at Monckton Chambers, examines the Supreme Court’s decision in SAE Education Ltd v Commissioners for Her Majesty’s Revenue and Customs (HMRC), that the appellant company was a college of a university within the meaning of Note 1(b) to Item 1 of Group 6 of Schedule 9 to the Value Added Tax Act 1994 (VATA 1994) and therefore its supplies of education were exempt from VAT.

The Supreme Court has unanimously allowed Tesla’s appeal, holding that there is a serious issue to be tried as to whether a standard essential patent (SEP) owner continues to be bound by its obligation to license on fair, reasonable and non-discriminatory (FRAND) terms when licensing its SEPs through a patent pool or licensing platform. The court held that the implementer has a real prospect of establishing at trial that the only FRAND licence for InterDigital’s UK SEPs licensed through the Avanci 5G Platform is a global platform licence on FRAND terms and of obtaining declarations as to the FRAND nature of the platform licence and fee. It also held that the licensing claims had been validly served, that the requirements for serving the relevant overseas parties out of the jurisdiction were satisfied, and that the Delaware Court of Chancery was not an available alternative forum. Naomi Hazenberg, partner at Bristows, provides commentary on the judgment.

Tax analysis: In HMRC v HFFX LLP; Atkins and others v HMRC, the Supreme Court considered a scheme (a ‘Capital Allocation Plan’) under which individual members of an LLP received discretionary deferred profits via a corporate LLP. The court held that the amounts in question were taxable as miscellaneous income under section 687 of the Income Tax (Trading and Other Income) Act 2005 (ITTOIA 2005).

Planning analysis: David Elvin QC, barrister at Landmark Chambers, examines the Supreme Court’s decision in London Borough of Southwark and another v Transport for London. The Supreme Court held that when responsibility for various highways was transferred from the respondent local authorities to the appellant transport authority, the transfer carried with it not just the surface of the highway and sufficient sub-soil (‘the top two spits’) as was necessary for the maintenance of the surface, but the entire interest held by the local authorities as highways authorities in the land on which the highway ran.

The Supreme Court has ruled that retail employees of Asda Stores Ltd (Asda) are entitled to use employees at Asda’s distribution depots as comparators for the purpose of their equal pay claim brought under the Equal Pay Act 1970 (EPA 1970) and the Equality Act 2010 (EqA 2010). Stephanie Creed, Senior Associate at Bird & Bird LLP, and Jennifer Millins and Suresh Patel, partner and associate respectively at Mishcon de Reya LLP, comment on the Supreme Court’s judgment.

The Supreme Court has unanimously dismissed the appeal in R (on the application of Bano) v London Borough of Waltham Forest, holding that the main housing duty under section 193(2) of the Housing Act 1996 (HA 1996) ceases automatically where an applicant accepts or refuses a private rented sector offer that satisfies the statutory requirements. The local housing authority is not subsequently required to decide that the duty has ceased or notify the applicant of that decision. Sarah Salmon, barrister at Cornerstone Barristers, and Joseph Mahon, barrister at Five Paper Chambers, provide commentary on the judgment.

The Supreme Court has ruled by a four to one majority that no limitation period applies under the Limitation Act 1980 (LA 1980) or otherwise to unfair prejudice petitions brought under sections 994–996 of the Companies Act 2006 (CA 2006). The court held that such petitions are neither ‘actions upon a speciality’ under section 8 (12-year period) nor ‘actions to recover any sum recoverable by virtue of any enactment’ under LA 1980, s 9 (six-year period).