Case Notes
Notable new judgments, in plain English — what each case decided and why it matters for practitioners. Every write-up links to the official judgment on The National Archives
Case Notes are editorial summaries and opinion — they may contain errors, are not legal advice, and must not be relied upon. Always check the full judgment.
Every Friday morning — the week’s notable judgments in plain English. Unsubscribe any time. RSS
Assess capacity first: the Court of Appeal makes an MCA assessment a precondition of a completed Care Act assessment
Allowing a young man's appeal and quashing Haringey's Care Act assessment of December 2024, the Court of Appeal held that whenever there is reason to doubt the capacity of a person whose needs for care and support are being assessed, a capacity assessment under the Mental Capacity Act 2005 must be carried out by an appropriately qualified professional before the needs assessment is completed. Lord Justice Baker, with Mind intervening in support, grounded the conclusion in the Care Act itself: understanding capacity is integral to evaluating well-being, and authorities and their social workers must comply with the MCA and its Code of Practice. The presumption of capacity is not a reason for deciding not to assess capacity when it is in doubt, nor is the duty first to take all practicable steps to support decision-making; and capacity is not determined by whether a person carries a “learning disability” label, section 2(1) speaking of impairment of, or disturbance in the functioning of, the mind or brain. The Court called it “puzzling” that the point had gone undecided for the nineteen years since the MCA came into force, and accepted the ruling may add work and cost while holding that a more accurate assessment of need benefits the individual. Ground 2 also succeeded: regulation 5 of the Care and Support (Assessment) Regulations 2014 is mandatory, and the failure to seek a psychologist's input was irrational.
Read the update →An indemnity starts when the duties do: the Court of Appeal sets aside a £677 million PPI judgment
Allowing Santander's appeal and dismissing AXA's cross-appeal, and setting aside an indemnity award of about £677 million, the Court of Appeal held that a contractual indemnity expressed to cover “any act or omission by GE-CB (including negligence) while performing their duties under this agreement” does not reach store-card PPI sold before the Agency Agreement was executed on 1 December 2000. Lady Justice Cockerill, applying the iterative whole-contract approach in Wood v Capita, held that clause 1.2 does not refer to all policies written before or after the effective date, which would have been the “crystal clear” way of covering earlier sales, and that clause 12 defines its own scope by words which on a plain reading are prospective: the seller only had duties under the agreement from the effective date. Read overall, the agreement “speaks with a single voice: indicating prospective operation only as regards sales and marketing”, and commercial asymmetry could not displace that reading. The cross-appeal failed at its foundation: section 1(6) of the Civil Liability (Contribution) Act 1978 confines contribution to a liability established or establishable in an action brought by the person who suffered the damage, and AXA's regulatory liability to pay customer redress was not such a liability — nor were the two liabilities in respect of the same damage.
Read the update →The child's voice belongs in the grave-risk test: the Supreme Court corrects the Inner House on article 13(b)
Dismissing the appeal brought by a father and his 14-year-old son, the Supreme Court held that a child's views can be taken into account in assessing whether there is a grave risk that return would expose the child to harm or otherwise place the child in an intolerable situation, and that the Inner House erred in excluding them. Lord Stephens and Lord Snowden, giving the judgment of a unanimous court, held that there is in effect a presumption that the child is given an opportunity to be heard, that the opportunity is not confined to any particular limb of article 13(b), and that the voice of the child should not be stifled by an overly paternalistic approach — while stressing that hearing a child is not the same as giving effect to what the child says, and that to the extent manipulation has made views inauthentic they attract little or no weight. On the Lord Ordinary's own findings this was “a paradigm case of a low risk of really serious psychological harm qualifying as grave”. H's views could not bear the weight placed on them: their authenticity was unresolved, and he had never been asked — and could not appropriately have been asked — to contemplate how he would react if his mother took her own life. The Court determined the application itself rather than remitting, the Hague jurisdiction being summary rather than a “wait and see” one, and affirmed the order refusing H's return to the USA.
Read the update →Vicarious liability does not travel with the staff: the Court of Appeal keeps third-party claims out of TUPE
Dismissing a claimant's appeal, the Court of Appeal held that regulation 4(2)(a) of the TUPE 2006 Regulations does not transfer a transferor's vicarious liability to a third party for the pre-transfer acts of employees. Lord Justice Coulson started with the Acquired Rights Directive, whose primary purpose is to safeguard employees' rights, and noted the concession that an employee has no relevant right in respect of his employer's vicarious liability to a third party: that liability is secondary and parasitic on the employee's own, and gives no protection in practice either, since the employer may recover a full indemnity under Lister v Romford Ice. “In connection with” is wide but protean, and takes its colour from the Directive's purpose. The Regulations confirm the reading: regulations 11 and 12 require detailed employee liability information and penalise failure, yet say nothing about third-party claims. The county court decision in Doane v Wimbledon FC, the only authority the other way, was found to contain a central flaw. Baker v British Gas and Bernadone, both concerning liabilities owed to employees, remain good law.
Read the update →Security is not suit: the Court of Appeal tightens both ends of the Hague-Visby Rules
Dismissing the cargo holders' appeal and allowing the owners', the Court of Appeal held that proceedings brought purely to obtain security are not “suit” for the one-year time bar in Article III rule 6, and that a bill of lading covering a non-homogeneous cargo must specifically identify the items carried on deck before the Article I(c) exclusion is engaged. Lord Justice Phillips held that “suit” means proceedings that can decide the claim: the term is unqualified, the authoritative French text uses “action” throughout, and the object of the rule is the prompt making and pursuit of substantive claims, not mere notification. On the second question, not previously addressed in any English authority, cargo can only be “stated” to be carried on deck if it is identified or identifiable, such as by parcel or serial number, so that holders can assess risk and insure prospectively. That aligns English law with the British Columbia Court of Appeal in the Gearbulk cases. Because the deck statement failed, the entire cargo was “goods” and the whole misdelivery claim was time-barred. What is required for a genuinely homogeneous cargo was left open.
Read the update →A bad ground and a good one: the Court of Appeal upholds two sponsor licence revocations and lets section 31(2A) save one of them
Dismissing conjoined appeals by a Tooting supermarket and a care provider, and the Secretary of State's cross-appeal, the Court of Appeal held that where a revocation rests on both a flawed mandatory ground and independently stated discretionary grounds, relief may still be refused under section 31(2A) of the Senior Courts Act 1981. Lord Justice Dingemans, Senior President of Tribunals, held that for J's Supermarket the differences between the certificate of sponsorship job descriptions and the duties the workers described were stark and had been fairly put, so the Balajigari and Prestwick Care fairness requirements were met and the genuine-vacancy finding stood. For Prestige, the Secretary of State could not save the Annex C1(z) finding, because the minded-to-find letter withdrew reliance on that Annex and then resurrected it without warning; but revocation would still have followed under Annex C2(a)-(b), which the decision letter had identified as individually sufficient. That a worker could not meet a requirement of her role showed very poor recruitment rather than a vacancy that was never genuine. “Threat to immigration control” bears the ordinary meaning of the words in guidance that is not a statute.
Read the update →Weekends do not count as attendance: the High Court holds weekend-only degrees are distance learning
Refusing permission to claim judicial review on all four grounds, Mr Justice Johnson concluded that full-time degrees whose in-person attendance falls only at weekends come within the definition of a "distance learning course" in regulation 2 of the Education (Student Support) Regulations 2011, so students on them were never eligible for maintenance grants or loans. Every weekend attendance requirement must be disregarded; the express "occasional" qualification for weekday attendance, and its absence for weekends, was a deliberate legislative choice. Guidance and sector practice could neither alter the statutory meaning nor found a legitimate expectation, and no expectation can compel payments the scheme forbids.
Read the update →Not just for journalists: the Court of Appeal opens up the section 2(9) terrorism defence, then raises the bar
Refusing an appeal against conviction and dismissing an appeal against sentence, the Court of Appeal (Criminal Division) held that the statutory defence in section 2(9) of the Terrorism Act 2006 is not restricted to journalists, academics or librarians and is available irrespective of personal status. Both limbs must be satisfied; the second, that it was clear in all the circumstances that the material was neither the defendant's view nor endorsed by him, is an objective test that an assertion will in many cases fail to meet. Contrary to the position both counsel had agreed, the Court considered that section 2(9) imposes a legal burden on the defendant.
Read the update →Deferred rent, tentatively, is not new money: the High Court sanctions the TG Jones landlord plans
Giving his full reasons for sanctioning two Part 26A restructuring plans for the former WH Smith high street chain, Mr Justice Hildyard crammed down eleven classes that had not approved by the statutory majority. Contributions are valued by estimated recovery in the relevant alternative, with new money at face value. On the narrow facts, and expressly "with diffidence", he preferred the view that deferred rent is a compromise of an impaired claim rather than the advance of new money, while declining to give wider guidance. Classifying landlords by store economics remains "an oddness" but is well-trodden, and the judge warned that expecting an immediate decision is misplaced in complex cram-down cases.
Read the update →Fair terms for a patent platform: the Supreme Court lets Tesla's FRAND claim proceed in England
Allowing Tesla's appeal, the Supreme Court held there is a serious issue to be tried on an implementer's claim for a declaration of FRAND licence terms for standard-essential patents offered through a multi-owner platform, and that the English courts have jurisdiction to hear it. A patent owner's FRAND obligation is not shed by licensing through a pool or platform, and the Delaware Court of Chancery was not an available forum for setting terms for UK patents.
Read the update →An unrecognised, unregistrable foreign judgment is still a "debt": the Supreme Court revives a bankruptcy petition
Allowing the creditor's appeal, the Supreme Court held that the obligation to pay under an unrecognised and unregistrable foreign money judgment is a "debt" capable of founding a bankruptcy petition under section 267 of the Insolvency Act 1986, without prior recognition proceedings. A judgment that is registrable under the Foreign Judgments (Reciprocal Enforcement) Act 1933 must still be registered first, and the nineteenth-century "obligation principle" remains good law.
Read the update →Cross-border spyware and state immunity: the Supreme Court reads section 5 without a 'presence' requirement
By a majority of three to two, the Supreme Court held that the personal-injury exception in section 5 of the State Immunity Act 1978 contains no requirement that the foreign state's agent be physically present in the UK. On the assumed facts of a preliminary issue, a state that remotely hacked computers in Britain could face a claim here; Lord Leggatt and Lord Burrows dissented, reading section 5 consistently with article 11 of the European Convention on State Immunity.
Read the update →Loss of bargain without a repudiatory breach: the Supreme Court upholds clause 14 of the Norwegian Saleform
Dismissing the sellers' appeal, the Supreme Court held that a buyer who lawfully cancels under clause 14 of the Norwegian Saleform can recover loss-of-bargain damages even where there has been no repudiatory breach. The word "loss" is general and unqualified, and the sellers' "causation" and "clear words" arguments could not cut it down.
Read the update →'Privilege hunting' is an abuse of process: the Court of Appeal condemns a Black Cube sting on an opponent's solicitor
The Court of Appeal held that a claimant's covert 'privilege hunting' operation — using the firm Black Cube to trick the defendants' solicitor into revealing confidential litigation and settlement strategy, including information said to be privileged — was a serious abuse of process. It dismissed the claimants' appeal and discharged their freezing orders, but declined to strike out the underlying fraud claim, which continues to trial.
Read the update →Leaving unsuitable accommodation does not end the main housing duty: the Court of Appeal reads suitability into section 193(6)(d)
Dismissing Birmingham's appeal, the Court of Appeal held that section 193(6)(d) of the Housing Act 1996 only brings the main housing duty to an end where the accommodation the applicant left was suitable — so a council cannot escape its duty by pointing to a family leaving unsuitable accommodation.
Read the update →The court is not to be trifled with: the Court of Appeal upholds an 18-month suspended committal for contempt
The Court of Appeal dismissed Lars Windhorst's appeal against an 18-month suspended committal for contempt over his repeated failure to attend a judgment-debtor examination, upholding both the length of the term and the court's power to attach a positive condition — production of documents — to the suspension.
Read the update →Zero-rating is an advantage, not a right: the Upper Tribunal closes the reverse-charge escape from a Mecsek denial
Denying a complicit supplier the benefit of zero-rating does not convert the supply into a standard-rated one, so section 55A cannot shift a £5.9m VAT liability onto the customer. The obligation to account arises from the anti-abuse principle itself, not from a charging provision.
Read the update →Good faith means what a director does, not just what he believes: the Supreme Court dismisses Costa's appeal
The Supreme Court held that section 172 of the Companies Act 2006 requires a director to act, not merely to think, in good faith — a director who covertly delays a sale he was trusted to run acts in bad faith, and the buy-out order stands.
Read the update →Blocking a private access road is not statutory public nuisance: the Supreme Court's first ruling on section 78
In its first decision on section 78 of the Police, Crime, Sentencing and Courts Act 2022, the Supreme Court read 'a right that may be exercised or enjoyed by the public at large' narrowly, acquitting six protesters who blocked a private dairy access road.
Read the update →Closing a centre for disabled adults without consulting them: the Court of Appeal quashes Bromley's decision
The Court of Appeal held a council owed a duty to consult vulnerable users before closing an adult education centre, and that the 'highly likely' bar to relief in section 31(2A) of the Senior Courts Act 1981 was not met where real options remained.
Read the update →Second-hand software gets a green light: the Court of Appeal backs ValueLicensing against Microsoft
The Court of Appeal dismissed Microsoft's appeal on both jurisdiction and the substance, confirming the CAT can hear copyright issues within a competition claim and that UsedSoft exhaustion covers non-program works and split bulk licences.
Read the update →Fixing the clock on "held": the Court of Appeal tightens the environmental information review test
Allowing the regulators' appeal, the Court of Appeal held that whether information is "held" under the Environmental Information Regulations is tested at the date of the original request, not the date of a later internal review.
Read the update →Disguised employment in LLPs: the Supreme Court closes the book on BlueCrest's salaried members appeal
The Supreme Court dismissed BlueCrest's appeal on both limbs of the salaried members legislation, leaving £142m of PAYE determinations in play and confirming the narrow reading of 'significant influence'.
Read the update →Issue estoppel has limits: the Supreme Court revives SKAT's claim against ED&F Man
Allowing the Danish tax authority's appeal, the Supreme Court held its 2022 claim was not barred by the dismissal of an earlier claim — and tightened the law on when issue estoppel arises.
Read the update →Fact or opinion? The Court of Appeal refuses to disturb the Vince v Tice libel rulings
The Court of Appeal dismissed Dale Vince's appeal against the preliminary-issue rulings in his libel claim against Richard Tice, restating the 'disciplined restraint' applied to meaning appeals.
Read the update →Vulnerable clients and the Legal Ombudsman: the Court of Appeal restores a service ruling against a solicitor
The Court of Appeal restored the Legal Ombudsman's ruling that a family firm fell short in its service to a vulnerable client — and clarified how being 'vulnerable' differs from 'lacking capacity'.
Read the update →Court of Appeal sets aside the CAT's phenytoin ruling — and reopens one of the UK's leading excessive-pricing cases
The Court of Appeal set aside the Competition Appeal Tribunal's phenytoin decision for procedural unfairness, reopening the Pfizer/Flynn excessive-pricing saga.
Read the update →Good Law Project's data-rights claim against Reform UK clears its first hurdle
The High Court refused Reform UK's bid to strike out the Good Law Project's data-protection claim, sending the data subject access dispute to trial.
Read the update →Deferred pay through a corporate member: the Supreme Court tackles LLP remuneration planning in HFFX
The Supreme Court held that LLP members' deferred remuneration was taxable under s.687 ITTOIA, while rejecting HMRC's s.850 profit-reallocation route.
Read the update →Ride-hailing is not a 'tour operator': the Court of Appeal hands HMRC a win on Bolt's VAT
The Court of Appeal held that ride-hailing does not fall within the VAT Tour Operators' Margin Scheme, reversing two tribunal wins for Bolt.
Read the update →Where robust turns into misconduct: a barrister's appeal against the Bar Standards Board fails
The High Court upheld misconduct findings against a barrister over unfounded accusations made in litigation, dismissing his appeal on all grounds.
Read the update →Furlough counts against you: the Supreme Court settles the £1bn Covid business-interruption question
The Supreme Court held that CJRS furlough payments must be deducted from Covid business-interruption insurance payouts.
Read the update →