Judgment call: 23 January 2012

Insolvency

12 December 2011

A failure to comply strictly with the Insolvency Rules 1986 Pt 2 (2) r.2.8(2) as to service, at the company’s registered office, of a notice of intention to appoint administrators did not invalidate the notice where the company had handed the notice to its solicitor who was authorised to accept service on its behalf.

Declaration granted

For the applicant directors

South Square’s William Trower QC and Stephen Robins; Linklaters partner Tony Bugg

Employment

Arriva London South Ltd v Nicolaou. Unreported. Employment Appeal Tribunal. Clark, J. 21 December 2011

An employee who had not opted out of the 48-hour working week had not suffered detrimental treatment contrary to the Employment Rights Act 1996 s.45A when refused the opportunity to work voluntary overtime on a rest day. He was refused rest-day working, not because he had refused to opt out but because of a reasonable policy on the employer’s part aimed at ensuring compliance with its duty to take reasonable steps to ensure the 48-hour limit was complied with.

Appeal allowed

For the appellant Arriva London

No 5 Chambers’ Russell Bailey; Moorhead James partner Sam Murray-Hinde

For the respondent Nicolaou

Ely Place Chambers’ David Mitchell; O H Parsons & Partners partner Matthew Cartledge and lawyer Melanie Krefta

London Underground Ltd v Associated Society of

Locomotive Engineers and Firemen (2011) EWHC 3506. Queen’s Bench Division. Eder, J. 22 December 2011

It was not appropriate to grant an interim injunction restraining a trade union from calling a strike where it was likely that the trade union would succeed at trial in contending that the Trade Union and Labour Relations (Consolid-ation) Act 1992 s.227 did not require a strike ballot to be limited to only those who would actually be withdrawing their labour in breach of contract on the day of the strike.

Application refused

For claimant London Underground
Devereux’s Bruce Carr QC and Fountain Court’s Paul Gott; Eversheds partner Marc Meryon

For Associated Society of Locomotive Engineers and Firemen

Old Square Chambers’ Oliver Segal QC and Ben Cooper; Thompsons partner Vicky Phillips

Contracts

Mulcaire v News Group Newspapers Ltd (2011) EWHC 3469 Chancery Division. Sir Andrew Morritt (Chancellor)

21 December 2011

A valid contract of indemnity had been concluded between a news-paper publisher and a private investigator formerly employed by it that had not been determined and was still subsisting. Indemnity in respect of costs and damages from litigation to which they were co-defendants from illegal phone-tapping was not void as contrary to public policy or for any other reason.

Declaration granted in favour of claimant

For Mulcaire

39 Essex Street’s Benjamin Williams; Payne Hicks Beach partner Sarah Webb

For News Group Newspapers 


One Essex Court’s Alain Choo

Choy QC; Allen & Overy partner Mark Mansell

Human Rights

AMP v Persons Unknown (2011) EWHC 3454. Queen’s Bench Division, Technology & Construction Court. Ramsey, J. 20 December 2011

An individual was granted an anonymity order under CPR r.39.2(4) and an interim injunction to prevent transmission, storage and indexing of photographic images taken from her mobile phone and uploaded to a website as BitTorrent files. She had a reasonable expectation of privacy in relation to those images capable of protection under the European Convention on Human Rights 1950 art.8, and an injunction was appropriate to restrain conduct in breach of the Protection from Harassment Act 1997.

Applications granted

For the claimant AMP

Henderson Chambers’ Matthew Richardson; Griffin Law principal Donal Blaney

IP

Hollister Inc v Medik Ostomy Supplies Ltd (2011) EWPCC 40. Patents County Court. Judge Birss QC. 20 December 2011

Where a parallel importer of medical devices had admitted trademark infringement by failing to comply with the requirement to give prior notice to the trademark owners that it was going to sell repackaged goods, and the proprietors had elected for an account of profits by way of relief, those profits would be net of centrally incurred overhead costs. An award of half of those net profits was an effective deterrent to dissuade those engaged in parallel importing from not giving notice and was proportionate to the reality of the instant case as a breach of a procedural requirement and nothing more.

Judgment accordingly

For claimants Hollister Inc

11 South Square’s Giles Fernando; Sloan Plumb Wood partner Philip Sloan

For defendants Medik Ostomy

11 South Square’s Richard Hacon; DWF partner Lee Norman

Civil procedure

Northern Rock (Asset Management) Plc v Chancellors Associates Ltd (2011) EWHC 3229. Queen’s Bench Division, Tech­nology & Construction Court. Akenhead, J. 9 December 2011

The court had jurisdiction to set aside a judgment obtained irregularly on the basis of an obviously mistaken admission in circumstances where there was a properly arguable defence, where the application to set aside was brought reasonably promptly and where there was no prejudice caused by the setting aside.

Judgment for defendant

For the claimant Northern Rock

3 Verulam Buildings’ Angharad Start; Rosling King partner Helen Thurkettle

For the defendant Chancellors

4 Pump Court’s Luke Wygas instructed directly