Judgment call: 26 March 2012

The term ’workforce’ in the Transfer of Undertakings (Protection of Employment) Regulations 2006 reg.7(2) did not include limited companies.



Andrew Stafford
Andrew Stafford

Employment

Meter U Ltd v Ackroyd; Meter U Ltd v Hardy & Ors. Unreported. Employment Appeal Tribunal. Slade J; A Harris; M McArthur. 28 February 2012

The term ’workforce’ in the Transfer of Undertakings (Protection of Employment) Regulations 2006 reg.7(2) did not include limited companies.
A transferee that performed its business by using corporate franchisees rather than by employing its own employees could establish an economic, technical or organisational defence to dismissals that were otherwise automatically unfair on the grounds that they related to the transfer.

Appeal allowed

For the appellant Meter U Ltd
Littleton Chambers’ Andrew Stafford QC; Kings Chambers’ James Boyd; HBJ Gateley Wareing (Manchester) partner Sarah Garth

For the respondent Ackroyd
Outer Temple Chambers’ Andrew Allen; Thompsons solicitor Claire Astin

For the respondent Hardy & Ors
Matrix Chambers’ James Laddie; instructed directly by Unison Employment Rights unit’s Legal Services

Succession

Barrett v Bem (2012) EWCA Civ 52. Court of Appeal (Civil Division). Maurice Kay LJ; Lewison LJ; Hughes LJ. 31 January 2012

The court should not find that a will had been signed by a third party at the testator’s direction unless there had been positive and discernible communication
to that effect, and it was good practice that the attestation clause should show that the will was signed by a third party signing their own or the testator’s name
by the direction and in the presence of the testator, and that it had been read over to the testator and that they appeared to have understood it. The court made an obiter comment that it was undesirable that beneficiaries should be permitted to execute a will in their favour in any capacity.

Appeal allowed

For the appellant Barrett
Selborne Chambers’ Mark Warwick; Hatch Brenner commercial litigation lawyer Mark Fitch

For first defendant/respondent Bem
13 KBW’s Gabriel Buttimore; Teacher Stern partner Raj Pabla

Defamation

Tamiz v Google Inc (2012) EWHC 449 (QB). Queen’s Bench Division. Eady J. 2 March 2012

An order permitting service of a libel claim out of the jurisdiction was set aside where the defendant, as the provider of an internet platform for blogging, could
not be regarded as a publisher.

Application granted

For the claimant Tamiz
Appeared as litigant-in-person

For the defendant Google
One Brick Court’s Catrin Evans; Reynolds Porter Chamberlain partner Jaron Lewis

IP

(1) British Telecommunications; (2) TalkTalk Telecom Group v Secretary of State for Business, Innovation and Skills and (1) BPI (British Recorded Music Industry); (2) British Video Association; (3) Broadcasting Entertainment Cinematograph and Theatre Union; (4) Equity; (5) Film Distributors’ Association; (6) Football Association Premier League; (7) Motion Picture Association Inc; (8) The Musicians’ Union; (9) Producers’ Alliance for Cinema and Television; (10) Unite (2012) EWCA Civ 232. Court of Appeal (Civil Division). Arden LJ; Patten LJ; Richards LJ. 6 March 2012

The appellant internet service providers (ISPs) failed to show that the provisions of the Digital Economy Act 2010 relating to online infringement of copyright were incompatible with relevant EU directives. The draft Copyright (Initial Obligations) (Sharing of Costs) Order would be unlawful to the extent that they sought to impose on ISPs certain administrative charges contrary to Directive 2002/20 art.12.

Appeal allowed in part

For the appellants (1) British Telecommunications; (2) TalkTalk Telecom Group
Matrix Chambers’ Antony White QC; Blackstone Chambers’ Kieron Beal (QC in waiting); instructed directly by David Shawley at BT and Anisha Raja at TalkTalk

For the respondent Secretary of State for Business, Innovation and Skills
Blackstone Chambers’ James Eadie QC; Monckton Chambers’ Robert Palmer and Alan Bates; the Treasury Solicitor

For the interested parties (1)-(10)
Blackstone Chambers’ Pushpinder Saini QC; 4-5 Gray’s Inn Square’s James Strachan; Wiggin partner Simon Baggs

Shipping

Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Anil V Salgaocar (2012) EWCA Civ 265. Court of Appeal (Civil Division). Rix LJ; Sir Mark Waller; Tomlinson LJ. 9 March 2012

The requirement of the Statute of Frauds 1677 s.4 for a contract of guarantee to be in writing could be satisfied in principle by reference to a sequence of negotiating emails or other documents of the sort, which was commonplace in ship chartering and ship sale and purchase.

Appeal dismissed

For the claimant Golden Ocean Group Ltd
20 Essex Street’s Timothy Young QC and Daniel Bovensiepen; Ince & Co partner Paul Herring

For first defendant Salgaocar Mining Industries
7KBW’s Dominic Kendrick QC and Peter MacDonald-Eggers QC; More Fisher Brown partner Andrew Hughes

For the second defendant Anil Salgaocar
20 Essex Street’s Charles Kimmins QC and Luke Pearce; Bentleys Stokes and Lowless partner William Chetwood

Tax

First Nationwide v HM Revenue & Customs Commissioners. [2012] EWCA Civ 278. Court of Appeal (Civil Division). Rix LJ; Briggs J; Moses LJ. 13 March 2012

Dividends paid out of the share premium account of a Cayman Islands company were income not capital, and accordingly manufactured dividends paid pursuant to a stock lending agreement were deductible as expenses of management in the taxpayer’s corporation tax self-assessment.

Appeal dismissed

For the appellant HM Revenue & Customs Commissioners
One Essex Court’s Malcolm Gammie QC instructed directly by HM Revenue & Customs

For the respondent First Nationwide
11 New Square’s John Gardiner QC and Philip Walford; Slaughter and May partner Sara Luder