Judgment Call: 5 November 2012

On an application under CPR r.39.2 for witnesses to give evidence in private, the judge had to consider whether there was a risk of reprisals against the witnesses such as to justify a derogation from the principle of open justice.

Civil procedure

Deripaska v Cherney. [2012] EWCA Civ 1235. Maurice Kay LJ; Munby LJ; Lewison, LJ. 3 October 2012

Appeal dismissed

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Alain Choo Choy

For the appellant Deripaska

One Essex Court’s Alain Choo Choy QC; Quinn Emanuel Urquhart Sullivan partner Sue Prevezer QC

For the respondent Cherney

3 Verulam Buildings’ Andrew Onslow QC; Dechert partner Andrew Hearn

Employment

Nambalat v (2) Taher and Mrs S Tayeb; (1) Y Binti Salim Udin v (1) Mr F Chamsi-Pasha; (2) Mrs L Chamsi-Pasha; (3) Mr Y Kaylani. [2012] EWCA Civ 1249. Bean J; Black LJ; Pill LJ. 5 October 2012

The court gave guidance about the correct application of the National Minimum Wage Regulations 1999 reg.2(2)(a)(ii). For the exemption to apply, the central requirement was that the worker had to be treated as a member of the family. That involved looking at how tasks, leisure activities and accommodation were allocated, not at how much household work was performed by the worker or the standard of the accommodation.

Appeals dismissed

For the appellants Nambalat Y Binti Salim Udin

11KBW’s Peter Oldham QC; 11KBW’s Julian Milford instructed by North Kensington Law Centre

For the first respondents Taher and Mrs S Tayeb

2 Temple Gardens’ Rehana Azib; Evans Dodds’ Dave Alleear

For the second respondents (1) Mr F Chamsi-Pasha (2) Mrs L Chamsi-Pasha (3) Mr Y Kaylani

Cobden House Chambers’ Jonathan Goldberg QC; Bushra Ahmed; Geoffrey Goldkorn of Goldkorn Mathias Gentle Solicitors

Civil procedure

Beasley v Alexander. [2012] EWHC 2715 (QB). Sir Raymond Jack. 9 October 2012

On a proper construction of the CPR r.36.13(2), the court could not be told whether a Part 36 offer had been made until the conclusion of an action; it was therefore precluded from making an order for costs in the instant action, where liability had been determined but damages remained to be decided.

Application refused

For the claimant Beasley

42 Bedford Row’s Richard Gregory; Fletchers Solicitors’ Adrian Denson

For the defendant Alexander

Farrar’s Building’s Andrew Peebles; Greenwoods Solicitors’ Claire Gribben

Defamation

John v Times Newspapers Ltd. [2012] EWHC 2751 (QB). Tugendhat J. 10 October 2012

Where The Times newspaper had published various articles about tax avoidance, named the founders of the film finance tax avoidance scheme and described one of them as Elton John’s former accountant, its hypothetical reader would not infer from the articles that Elton John was implicated in immoral tax avoidance measures. The references to him were fleeting and it was clear that any association between the two men had been in the past.

Application granted

For the claimant Sir Elton John

Ely Place Chambers’ Ronald Thwaites QC; Ely Place Chambers’ William McCormick QC; Carter-Ruck partner Nigel Tait

For the defendant Times Newspapers Ltd

One Brick Court’s Manuel Barca QC; Times Newspapers’ Pia Sarma

Administration of justice

R (on the application of Wilkinson) v HM Coroner for Greater Manchester South District. Interested party Wendy Livesley [2012]. EWHC 2755 (Admin). Foskett J; Judge Peter Thornton QC. 11 October 2012

The verdict of unlawful killing could be returned only where death had resulted from murder, manslaughter (including corporate manslaughter) or infanticide. Driving offences causing death could not justify such a verdict.

Application granted

For the claimant R (on the application of Wilkinson)

Crown Office Chambers’ James Maxwell-Scott; Hill Dickinson solicitor Stephen Barnfield

For the defendant HM Coroner for Greater Manchester South District

Temple Garden Chambers’ Alison Hewitt; Stockport Legal Services

Insurance

Amlin Corporate Member (on its own behalf and on behalf of all other members of Syndicate 2001 at Lloyd’s in relation to policy reference B0738MC000720B); Talbot 2002 Underwriting Capital Ltd (on its own behalf and on behalf of all other members of Syndicate 1183 at Lloyd’s in relation to policy reference B0738MC000720B; Limit (NO. 2) Ltd (on its own behalf and on behalf of all other members of Syndicate 1036 at Lloyd’s in relation to policy reference B0738MC000720B; Aegis Electric & Gas International Services Ltd (on its own behalf and on behalf of all other members of Syndicate 1225 at Lloyd’s in relation to policy reference B0738MC000720B; Novae Corporate Underwriting Ltd (on its own behalf and on behalf of all other members of Syndicate 2007 at Lloyd’s in relation to policy reference B0738MC000720B; Brit UW Ltd (on its own behalf and on behalf of all other members of Syndicate 2987 at Lloyd’s in relation to policy reference B0738MC000720B v Oriental Assurance Corp. [2012] EWCA Civ 1341. Longmore, LJ; Rimer LJ; Tomlinson LJ. 17 October 2012

A situation where reinsurers were bound to follow the settlements of the reinsured was not a general exception to the rule that a stay of proceedings could only be granted in rare circumstances. The court had been correct to refuse to grant a stay of English proceedings brought by reinsurers to establish they were not liable under a contract of reinsurance pending the outcome of proceedings issued against the insurers in the Philippines.

Appeal dismissed

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Roger ter Haar QC

For the appellant Oriental Assurance Corporation

Crown Office Chambers’ Roger ter Haar QC; Browne Jacobson consultant Robert Wilson

For the respondent Amlin & Ors

7KBW’s Peter MacDonald Eggers QC; Norton Rose partner Chris Zavos

Contracts

Parkingeye Ltd v Somerfield Stores Ltd. [2012] EWCA Civ 1338. Laws LJ; Toulson LJ; Sir Robin Jacob. 17 October 2012

The principle that a contract would be unenforceable if, at the time of its formation, one of the parties had the intention of performing it in an unlawful manner, could not be read as applying to any intended illegality of performance.

Appeal dismissed

For the appellant Somerfield Stores

One Essex Court’s Michael Fealy instructed directly by the legal department of the Co-operative

For the respondents Parkingeye

Kings Chambers’ Clive Freedman QC; Kings Chambers’ Andrew Grantham; Pannone partner Michael Kennedy