Judgment Call 15 April

VAT

Investment Trust Companies (In Liquidation) v Revenue and Customs Commissioners [2013] EWHC 665 (Ch). Henderson J. 26 March 2013

The scope of the remedy established in Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] A C 70 to recover tax that had been unlawfully exacted was confined to those who had themselves paid the sums which it was sought to recover to a public authority in response to an apparent statutory requirement to do so.

Judgment accordingly

For the claimants Investment Trust Companies (In Liquidation)

One Essex Court’s Laurence Rabinowitz QC; One Essex Court’s Steven Elliott; PricewaterhouseCoopers Legal senior partner Nick Skerret

For the defendants Revenue and Customs Commissioners

11KBW’s Jonathan Swift QC; Monckton Chambers’ Andrew Macnab, instructed directly

Damages

WXY v (1) Gewanter; (2) Positive Profile Ltd; (3) Mark Burby. [2013] EWHC 589 (QB). Tugendhat J. 14 March 2013

Where a defendant had been found guilty of harassment in posting private and confidential information about the claimant on a website, and threatening to make further postings, it was appropriate to make a single award of damages for harassment and for the distress arising from misuse of the confidential information. The former had been caused by the latter and was not separate. In the instant case, the appropriate award was £24,950.

Damages assessed

For the claimant WXY

One Brick Court’s Aidan Eardley; Archerfield Partners partner Mark Bateman

For the defendant (3) Mark Burby

Henderson Chambers’ Patrick Green QC; Henderson Chambers’ Kathleen Donnelly, instructed under the direct professional access scheme

VAT

British Association of Leisure Parks, Piers and Attractions Ltd v Revenue and Customs Commissioners. [2013] UKUT 130 (TCC). Morgan J. 12 March 2013

In obiter remarks the Upper Tribunal indicated that the Value Added Tax Act 1994 Sch.9, Group 9, Note 5 was to be interpreted as requiring that, in order to be exempt from VAT under Sch.9, Group 9, Item 1(d) an association had to restrict its membership in accordance with Note 5, either by its rules or by a Note 5-compliant practice that superseded what was laid down in the rules.

Appeal dismissed

For the appellant British Association of Leisure Parks, Piers and Attractions Ltd

13KBW’s Timothy Brown instructed by Charcroft Baker, Chartered Accountants

For the respondents Revenue and Customs Commissioners

One Crown Office Row’s Sarabjit Singh instructed directly

Criminal procedure

Regina v Applied Language Solutions Ltd (now known as Capita Translation and Interpreting Ltd). [2013] EWCA Crim 326. Sir John Thomas (president QBD); Swift J; Cranston J. 25 March 2013

A company which had a contract to provide interpreters for court hearings was not guilty of serious misconduct when due to an internal error it failed to provide an interpreter for a sentencing hearing, and therefore it should not have been ordered to pay costs under the Prosecution of Offences Act 1985 s.19B. A case of serious misconduct might arise if there was evidence that non-attendance occurred where there had been a failure to remedy a defect in administrative systems that had caused non-attendance in the past or where a particular interpreter had failed several times to attend.

Appeal allowed

For the appellant Applied Language Solutions Ltd (now known as Capita Translation and Interpreting Ltd)

Five Paper Buildings’ Ian Wade QC; St Johns Buildings’ Laura Marshall, instructed by Freeth Cartwright partner Deryck Houghton

The respondent was not represented

IP

GlaxoSmithKline Biological SA v Comptroller-General of Patents, Designs and Trade Marks. [2013] EWHC 619 (Pat). Arnold J. 21 March 2013

Questions were referred to the Court of Justice for preliminary ruling concerning whether a pharmaceutical product which had no therapeutic effect on its own but which enhanced the therapeutic effect of an antigen when combined with that antigen in a vaccine, was an “active ingredient” within the meaning of Regulation 469/2009 art.1(b), and if not whether the combination of such a product with an antigen could nevertheless be regarded as a “combination of active ingredients” within art.1(b). The referring court indicated that it would answer both questions negatively.

Questions referred to ECJ

For the appellant GSK

8 New Square’s Daniel Alexander QC; Simmons & Simmons partner Marjan Noor

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

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

Civil procedure

Henderson v All Around The World Recordings Ltd (Costs) [2013] EWPCC 18. Judge Birss QC. 27 March 2013

The Patents County Court determined that the costs capping system provided for in CPR r.45.41 (now r.45.30) covered conditional fee arrangement success fees and after-the-event insurance premiums, and that it had a discretion to depart from that system in sufficiently exceptional circumstances.

Costs determined

For the claimant

Lamb Chambers’ Chris Pearson; Fladgate solicitor Stephanie Bonnello

For the defendant All Around

The World Recordings Ltd

Hogarth Chambers’ Gwilym Harbottle instructed by Anthony Jayes name partner Anthony Jayes

IP

Fage UK Ltd v Chobani UK Ltd [2013] EWHC 630 (Ch). Briggs J. 26 March 2013

The claimant in a passing-off case did not have to show that the public as a whole had the

requisite perception that the relevant trading name, ‘Greek yoghurt’, denoted a distinctive class of product, only that a

section of the public had that perception.

Judgment for claimants

For the claimants (1) Fage UK; (2) Fage Dairy Industry

8 New Square’s Daniel Alexander QC; Three New Square’s Joe Delaney, instructed by Winston & Strawn partner Richard Price.

For the defendants (1) Chobani UK Ltd; (2) Chobani Inc

8 New Square’s John Baldwin QC; Gowlings counsel James Tumbridge, instructed by Gowlings partner Paul Harris

Featured case

International lawApex Global Management Ltd v Fi Call Ltd; (2) Global Torch Ltd; (3) HRH Prince Abdulaziz bin Mishal bin Abdulaziz Al Saud; (4) Emad Mahmoud Ahmed Abu-Ayshih; (5) HRH Prince Mishal bin Abdulaziz Al Saud. [2013] EWHC 587 (Ch). Vos J. 19 March 2013

King Abdullah
King Abdullah

The State Immunity Act 1978 s.20(1) and the Diplomatic Privileges Act 1964 Sch.1 art.31.1(c) had to be construed, in the case of a sovereign or other head of state and members of his family forming part of his household and his private servants, as excluding immunity in the case of any action undertaken anywhere relating to any professional or commercial activity exercised by him outside his official functions.

Applications refused

Two princes, who were part of the royal family of Saudi Arabia, claimed sovereign immunity in respect of claims made against them in a petition presented under the Companies Act 2006 s.994. They were father and son.

The father was the half-brother of King Abdullah. The issues were (i) whether the princes were entitled to claim immunity under the State Immunity Act 1978 s.20(1)(b) as “members of [King Abdullah’s] family forming part of his household”; (2) and if so, whether the instant proceeding was excluded from that immunity as “an action relating to any […] commercial activity exercised by the diplomatic agent in the receiving state outside his official functions” within the meaning of the Diplomatic Privileges Act 1964 Sch.1 art.31.1(c).

Applications refused

On the proper construction of s.20(1)(b), while an adult member of a sovereign’s or head of state’s family exercising royal or presidential, constitutional and representational functions could be regarded in some circumstances as a member of the household, even though they lived apart from the sovereign or head of state (as did the princes), such a situation would be rare.

Also, it would be likely to be restricted to the case of a regent, heir or a person broadly exercising the head of state’s functions full-time on his behalf.

Neither prince had established that he could properly be regarded as a member of King Abdullah’s family forming part of his household, within the proper meaning of s.20(1)(b).

The father attended around 30 official functions each year and was chairman of the Allegiance Council, which had an important but infrequent constitutional role. The prince was no doubt one of many advisers to King Abdullah, but was neither heir to the throne nor a regent or a person broadly exercising the sovereign’s functions on his behalf on a full-time basis.

The son merely had an occasional role in meeting or receiving official guests and undertaking other peripheral duties connected with the state.

He was not exercising royal or constitutional or representational functions on a consistent basis on behalf of the King.

In any event, s.20(1) and Sch.1 art.31.1(c) of the 1964 Act had to be construed, in the case of a sovereign or other head of state and members of his family forming part of his household and his private servants, as excluding immunity in the case of any action undertaken anywhere relating to any professional or commercial activity exercised by him outside his official functions. That involved making a “necessary modification” to art.31.1(c) in applying it to sovereigns, their families and servants.

The princes would therefore have no immunity to these proceedings, relating to their alleged commercial activities, even if they were otherwise entitled to immunity as members of King Abdullah’s family, forming part of his household.

Commentary

Jessica Gladstone

By taking a purposive approach to the analysis of the law on immunities, Vos J’s decision shows that the sovereign immunity doctrine is far from absolute.

In the first judicial interpretation of the meaning of a sovereign’s “household” for the purposes of s20(1) of the Sovereign Immunities Act 1974 (SIA), Vos J examined in detail the functional roles of the Saudi princes.

Such analysis must take place in light of the origins of and rationale for immunities in international law, namely to allow those who represent and act for the State the necessary immunities to perform this function.

The court looked behind title and status to examine the actual characteristics of a particular individual’s position. It showed willingness to make “necessary modifications”, as directed in s20(1) SIA to the Diplomatic Privileges Act 1964 (DPA), in order that the exception apply to a sovereign’s commercial activities.

These modifications run counter to the express wording of article 31(1)(c) of the DPA, which refers only to commercial activity exercised “in the receiving State”.

This reasoning follows a functional comparison of the roles, responsibilities and practical implications of those acting as heads of states and diplomats, with the conclusion that different treatment for each is necessary to make sense of the SIA objectives.

We can expect the courts to take a narrow approach to the scope of the SIA, and for immunities to be strictly applied in accordance with their function and purpose.

Jessica Gladstone, International Counsel, Debevoise & Plimpton