Judgment Call: 12 November 2012

Environment

17 October 2012

Where Scottish ministers took responsibility for the construction of a city bypass and revised the scheme to include an extra link of road, that revision was a modification to a “project” within the scope of Directive 85/337, rather than a modification to a “plan” or “programme” for the purposes of Directive 2001/42.

The court clarified the law relating to an individual’s standing to challenge administrative decisions concerning the environment.

Appeal dismissed

For the appellant Walton at first stage

Terra Firma Chambers’ Stuart Gale QC; Ampersand Stable’s Jane Munro; Patrick Campbell & Co partner Frances McCartney

For the appellant Walton at second stage

Ampersand’s Aidan O’Neill QC; Hastie’s Chris Pirie; Patrick Campbell & Co partner Frances McCartney

For the respondents Scottish Ministers

Axiom Advocates’ James Mure QC; Murray Stable’s Lorna Drummond QC; Scottish Government Legal Directorate

Armed forces

Smith v Ministry of Defence. [2012] EWCA Civ 1365. Lord Neuberger (MR); Moses LJ; Rimer LJ. 19 October 2012

The Ministry of Defence (MoD) owed a common law duty of care to members of the armed forces, which included a duty to provide safe systems of work and safe equipment.

The Court of Appeal therefore refused to strike out claims of negligence against the MoD by the families of servicemen killed in Iraq and Basra. The issue of whether combat immunity applied was to be determined at trial.

Judgment accordingly

For the appellant (1) Susan Smith (on her own behalf and as administrator of The Estate of Philip Hewett, Deceased); (2) Colin Redpath (on his own behalf and as Executor of the Will of Kirk James Redpath, Deceased); (3) & (4) Will of Kirk James Redpath,Deceased); appellant/respondent Courtney Ellis (a Child) by her Litigation Friend Karla Ellis

Devereux Chambers’ Robert Weir QC to lead Matrix Chambers’ Jessica Simor instructed by Hodge Jones & Allen partner Jocelyn Cockburn

For the respondents Deborah Allbutt Daniel Twiddy Andrew Julien

Matrix Chambers’ Richard Hermer QC; Doughty Street Chambers’ Ben Silverstone; Leigh Day & Co Solicitors Shubhaa Srinivasan

For the respondent/appellant MoD

Blackstone Chambers’ James Eadie QC; Sarah Moore; 11KBW’s Karen Steyn instructed directly by the Treasury Solicitor

Local government

Braithwaite v Secretary of State for Communities and Local Government. [2012] EWHC 2835 (Admin). Kenneth Parker J. 18 October 2012

A local housing authority had been entitled to make a compulsory purchase order in respect of a property which had been only sporadically and intermittently occupied over a 10-year period such as to constitute an “empty property” for the purposes of the Housing Act 1985 s.17.

Application refused

For the claimant Braithwaite

5 St Andrew’s Hill Roger Bartlett; Irwin Mitchell solicitor Matthew Wayman

For the defendant Secretary of State for Communities and Local Government

Landmark Chambers’ David Forsdick instructed directly by the Treasury Solicitor

Construction law

Systech International Ltd v PC Harrington Contractors Ltd. [2012] EWCA Civ 1371 Davis LJ; Lord Neuberger (MR); Treacy LJ. 23 October 2012

An adjudicator was not entitled to recover the fees which he had incurred in an adjudication governed by the Scheme for Construction Contracts (England and Wales) Regulations 1998 because he had breached the rules of natural justice in reaching his decision, which was unenforceable.

Appeal allowed

For the appellant PC Harrington Contractors Ltd

4 Pump Court’s James Bowling; Speechly Bircham solicitor Michael O’Connor

For the respondent Systech International Ltd

Atkin Chambers’ Dominique Rawley QC; Systech Solicitors partner Julian Ives

IP

Astrazeneca AB v Comptroller-General of Patents, Design and Trade Marks. [2012] EWHC 2840 (Pat). Arnold J. 19 October 2012

The High Court referred questions to the European Court of Justice concerning the duration of supplementary protection certificates under Regulation 469/2009 art.13 and whether a Swiss marketing authorisation, automatically recognised by Liechtenstein, was capable of constituting the “first authorisation” to place a product on the market for the purposes of art.13(1).

Questions referred to ECJ

For the appellant Astrazeneca AB

Brick Court Chambers’ Mark Hoskins QC; Brick Court Chambers’ Kelyn Bacon; Bristows partner Marie Manley

For the respondent Comptroller-General of Patents, Design and Trade Marks

8 New Square’s Charlotte May instructed directly by the Treasury Solicitor

Competition law

BCL Old Co Ltd v BASF SE (formerly BASF AG). [2012] UKSC 45. Lord Clarke JS.C; Lord Mance JSC. Lord Phillips JSC; Lord Walker JSC; Lord Wilson JSC. 24 October 2012

The statutory limitation period for a claim for damages under the Competition Act 1998 s.47A and the Competition Appeal Tribunal Rules 2003 r.31 was sufficiently clear, precise and foreseeable and did not breach European principles of effectiveness and legal certainty.

Appeal dismissed

For the appellant BCL Old Co Ltd & Ors

Christopher Vajda QC formerly of Monckton Chambers; Monckton Chambers’ Laura Elizabeth John; Taylor Vinters

For the respondents BASF plc & Ors

Brick Court Chambers’ Mark Brealey QC; Brick Court Chambers’ Sarah Ford; Mayer Brown International partner Miles Robinson and Gillian Sproul