The Supreme Court has unanimously handed down its judgment in UniCredit Bank GmbH v Ruschemalliance Llc [2024] UKSC 30. The conclusions of the Court of Appeal were challenged on jurisdictional issues concerning applicable law of the arbitration agreements and proper place to bring the claim. The Supreme Court held that the arbitration agreements were governed by English law despite the choice of a different country as the seat of arbitration. England and Wales was deemed the proper place in which to bring this claim as UniCredit could not obtain any effective remedy in the French courts or from an arbitral tribunal. Paul Key KC at Essex Court Chambers, Jennifer Haywood at Serle Court Chambers, and Matthew Weiniger KC and Karris Graham-Moore at Linklaters, provide their comments on the judgment.

Corporate Crime analysis: The court held (in a majority judgment (4:1)) that sanctions imposed by the Secretary of State for Foreign, Commonwealth and Development Affairs (the Foreign Secretary) on Mr Shvidler, and (in a unanimous judgment) that sanctions imposed by the Secretary of State for Transport (the Transport Secretary) on a yacht (M/Y Phi) owned by Dalston Projects, in the immediate aftermath of Russia’s invasion of Ukraine, were—despite their acknowledged interference with the appellants’ rights under the European Convention on Human Rights, proportionate and lawful. In a strong dissent, however, Lord Leggatt deprecated the decision of the majority in Mr Shvidler’s case, finding that the sanctions against him, as a UK citizen, were disproportionate and hence unlawful. Of broader application in a public law context, the court departed from the Court of Appeal on the question of the approach to proportionality cases by an appellate court. Written by Kerri McGuigan, senior associate and Liam Lane, associate at Peters & Peters Solicitors LLP.

The Supreme Court has unanimously allowed the appeal in the case of Ho (Respondent) v Adelekun (Appellant), holding that the setting off of costs against costs is a form of enforcement covered by the QOCS provisions just as the setting off of costs against damages is—a conclusion which follows from the wording of the QOCS provisions in CPR Part 44. Partner and Head of Costs at Bolt Burdon Kemp, Sam Hayman, and Associate in the Costs team at Bolt Burdon Kemp, Tom Jenkinson, comment on the judgment.

The Supreme Court has unanimously dismissed the appeal, affirming that the language and purpose of section 423 of the Insolvency Act 1986 (IA 1986) point clearly to the conclusion that a transaction within IA 1986, s 423(1) is not confined to a dealing with an asset owned by a debtor but extends to transactions whereby a debtor enters into an arrangement under which a company owned by them transfers a valuable asset for no consideration or at an undervalue.

The Supreme Court unanimously dismissed the taxpayers’ argument that the relevant expenditure fell within section 298(1) of the Capital Allowances Act 2001 (CAA 2001) and concluded that, based on the proper interpretation of that provision, the expenditure was not incurred under a contract executed prior to the conclusion of the initial ten-year period, as required. Adam Craggs, partner at RPC, discusses the implications that the judgment has on taxpayers going forward.

Corporate Crime analysis: Benjamin Seifert, barrister at Temple Garden Chambers, examines the Supreme Court’s decision in Konecny that the appellant, who had been convicted in his absence by the respondent Czech court, was for the purposes of section 14 of the Extradition Act 2003 (EA 2003), a convicted person rather than an accused person, even though he had a right to a retrial on his return. Therefore, when considering whether his extradition should be barred because of the passage of time, the delay was to be measured from the date of his conviction rather than the date of the offences of which he had been convicted.

Tax analysis: In HMRC v BlueCrest Capital Management (UK) LLP, the Supreme Court considered whether the salaried members provisions in Income Tax (Trading and Other Income Act 2005 (ITTOIA 2005) applied to members who were investment portfolio managers. The court dismissed the limited liability partnership’s (LLP) appeal on Condition A of the provisions but ordered that the appeal on Condition B be remitted to the First-tier Tax Tribunal (FTT) for rehearing in the light of the court’s decision on the relevant principles.

Planning analysis: The Supreme Court held (by a majority of 3:2) that the grant of planning permission for commercial oil production was unlawful for failing to assess the ‘downstream’ greenhouse gas (GHG) emissions that will inevitably arise from the combustion of the fuel, following refinement of the crude oil. The failure to assess downstream or ‘Scope 3’ GHG emissions was contrary to the environmental impact assessment (EIA) regulations, which require decision-makers to assess, for certain projects, the ‘direct and indirect significant effects of a project’ on the climate. The court ruled that the meaning of the term direct and indirect ‘effects’ was a question of law and ultimately a matter of causation. This is a historic ruling effectively requiring all new fossil fuel projects falling within the scope of the EIA regulations to quantify and assess the GHG emissions that will arise from the eventual use of the final product (in this case, the refined oil). Written by Estelle Dehon KC and Ruchi Parekh, barristers at Cornerstone Barristers.

Public Law analysis: The Supreme Court of the United Kingdom (UK) has rejected an appeal by the Advocate General (AG) for Scotland against a decision by the Inner House of the Court of Session, Scotland’s highest court of appeal for civil cases, in which the Inner House declared that the Prime Minister’s (PM) advice to the Queen and the prorogation that followed were unlawful. At the same time, the Supreme Court has upheld an appeal by Gina Miller from a decision of the High Court in England and Wales on, effectively, the same point. In doing so, the Supreme Court has held that the advice provided by the PM to Her Majesty to prorogue Parliament was unlawful as it had the purpose of preventing Parliament from carrying out its constitutional duties without reasonable justification for doing so. The Supreme Court has also held that the order in council proroguing Parliament was unlawful, null and of no effect, and that consequently the prorogation itself was unlawful, and of no effect. Written by Graham Horn, associate, at MacRoberts LLP.

Tax analysis: In Orsted West of Duddon Sands (UK) Limited and others, the Supreme Court allowed HMRC’s appeal, holding that capital allowances were not available for expenditure incurred on various environmental studies that had to be undertaken prior to the construction of offshore windfarms. (Note that this litigation was formerly referred to as Gunfleet Sands).

Tax analysis: In Northumbria Healthcare NHS Foundation Trust v HMRC, the Supreme Court decided that supplies of hospital car parking by an NHS Trust were subject to VAT because the Trust was acting as a taxable person, rather than as a public authority, when it operated the car parks. This was because the legal conditions under which the Trust made the supplies were no different, because of the Trust’s function as a public authority, from the legal conditions under which private sector providers made similar services.

The Supreme Court has handed down judgment in the case of Re application by Rosaleen Dalton for Judicial Review (Northern Ireland) [2023] UKSC 36. The case concerned the extent to which the positive obligation on public authorities to investigate an individual’s death under Article 2 of the European Convention on Human Rights (ECHR) extends to deaths that occurred before the Human Rights Act 1998 (HRA 1998) came into force. The principal issue for determination was whether Rosaleen Dalton could challenge the Attorney General of Northern Ireland’s (AGNI) refusal to open a new inquest into her father’s death. The Supreme Court has unanimously allowed the appeal of the AGNI, however was unanimous in rejecting the AGNI’s submission that it should depart from earlier decisions of the Supreme Court. Anurag Deb, practitioner in civil and public law at KRW Law LLP in Belfast, discusses key findings of the case.