Judgment Call: 10 June


Bristol & West plc v Revenue and Customs Commissioners [2013] UKFTT 216 (TC). Judge Howard M Nowlan; Susan Lousada. 8 April 2013

For corporation tax purposes the effective rollover rule of the Finance Act 2002 Sch.26 pt.6 para.28 did not apply to a company’s novation of an interest rate swap to another company in the same group where, because of their different accounting periods, the first, but not the second, company fell within the scope of the new Sch.26 regime.

Appeal dismissed

For the appellant Bristol & West

Pump Court Tax Chambers’ Graham Aaronson QC; Pump Court Tax Chambers’ James Henderson; Herbert Smith Freehills associate Michael Hunt

For the respondent HMRC

Pump Court Tax Chambers’ Kevin Prosser QC; Pump Court Tax Chambers’ James Rivett; HMRC’s Christina Parkinson

International trade

Seagrain LLC v Glencore Grain BV [2013] EWHC 1189 (Comm). Blair J. 10 May 2013

The court construed the prohibition clause in the GAFTA 48 contract form, analysing the difference between the old clause and its revised version. The reference to an “executive act […] restricting exports” meant an act done by, or on behalf of, the government in the nature of a formal restriction of exports. It could not be construed as extending to every action by an official body that had the effect of restricting exports.

Appeal dismissed

For the claimant Seagrain

Quadrant Chambers’ Michael Nolan, instructed directly

For the defendant Glencore Grain

20 Essex Street’s Susannah Jones; Reed Smith LLP associate Annabelle Arden-Maccabee


Reid (t/a Reid & Co Solicitors) v Revenue and Customs Commissioners [2013] UKFTT 241 (TC). Judge Peter Kempster. 18 April 2013

There had been no payment, within the meaning of the Value Added Tax Regulations 1995 reg.94B, to a taxpayer who had issued invoices to companies held by a company 50 per cent owned by him, where the liabilities had been booked to the taxpayer’s director’s loan account.

Preliminary issue determined in favour of appellant

For the appellant Reid

Pump Court Tax Chambers’ David Yates; Smith & Williamson LLP partner Tony Jackson

For the respondent Revenue and Customs Commissioners

18 St John Street’s Richard Chapman; General counsel and solicitor to HMRC

Civil procedure

Ewing v Camden LBC. [2013] EWHC 961 (Admin). Turner J. 22 April 2013

A local authority had standing to make submissions in relation to a vexatious litigant’s application for permission to commence proceedings against it under the Senior Courts Act 1981 s.42(3).

Preliminary issue determined

For the defendant Camden LBC

Arden Chambers’ John McCafferty; senior housing solicitor Saida Bellow

For the claimant Terence Patrick Ewing

Litigant in person

Civil procedure

Jones & Ors v Secretary of state for energy and climate change [2013] EWHC 1023 (QB). Swift J. 3 May 2013

The claimants, who had been successful in personal injury group litigation, were entitled to pre-judgment interest on disbursements at 4 per cent above base rate, being the rate charged under credit agreements entered into with their solicitors for the purpose of funding the disbursements.

Judgment accordingly

For the claimants Jones & Ors

Byrom Street Chambers’ David Allan QC; Lincoln House Chambers’ Ivan Bowley; 4 New Square’s Benjamin Williams; Hugh James partner Kathryn Singh

For the defendants secretary of state for energy and climate change and Coal Products Ltd

12 King’s Bench Walk’s Ronald Walker QC; Civitas Chambers’ Robert O’Leary; 39 Essex Street’s Judith Ayling; Nabarro partner Carl Dray

Civil procedure

Khans Solicitors v Chifuntwe [2013] EWCA Civ 481. Rix LJ; Ryder LJ; Sir Stephen Sedley

Where a successful claimant terminated his retainer with his solicitors at the conclusion of his case and negotiated costs in person with the defendant, accepting a costs payment which was significantly less than the costs actually incurred by his solicitors, the court would intervene to protect the solicitor’s claim if the defendant was on notice of the claim. The solicitors should have applied, in the compromised proceedings, for the costs to be paid into court to await allocation by the court.

Appeal allowed in part

For the applicant Khans Solicitors

12 Old Square Chambers’ Michael Biggs; Khans Solicitors partner Tahir Khan

For the second respondent secretary of state for the home department

Falcon Chambers’ Oliver Radley-Gardner; instructed directly by the Treasury Solicitor’s department

Featured case

Human rights

Boris Johnson
Boris Johnson

AAA v Associated Newspapers Ltd [2013] EWCA Civ 554. Lord Dyson (MR); Tomlinson LJ; Ryder LJ. 20 May 2013

A judge had not erred in finding that there was an exceptional public interest in the professional and private life of an elected politician such as to justify the publication of a newspaper article claiming a child had been born as a result of his extramarital affair.

Appeal dismissed

The appellant child (C) appealed against a decision ([2012] EWHC 2103 (QB), [2013] EMLR 2) dismissing her claim for damages for breach of privacy against the respondent newspaper publisher and a refusal to grant an injunction preventing further publication of her personal details. It was claimed that C had been born as a result of an extramarital affair between her mother Helen McIntyre and an elected politician, named by the defendant as Boris Johnson.

C was alleged to be the second such child conceived as a result of an extramarital affair of the politician. Associated Newspapers published an article in the Daily Mail containing speculation as to C’s paternity and C claimed damages for breach of privacy.

The judge found that C had a reasonable expectation of privacy in respect of her paternity so as to engage her rights under the European Convention on Human Rights 1950 art.8. However, she found that it was a reduced expectation by reason of what McIntyre had said about C’s paternity to a director of a major magazine group while at a country house weekend, and when later interviewed for an article that was published in a magazine.

The judge balanced C’s art.8 rights against the defendant’s rights to freedom of expression under art.10 and concluded that the public interest in C’s paternity, and in particular the recklessness relevant to the politician’s character and fitness for public office, justified publication.

The judge refused to grant the injunction on the basis that so much information was now in the public domain that it would serve no real purpose.

C submitted that the judge (1) failed to make any proper assessment of C’s best interests as regards media attention and publication of information concerning her paternity; (2) wrongly concluded that C’s expectation of privacy was reduced; (3) had erred in holding that C’s expectation of privacy was outweighed by the public interest in the recklessness of the politician.

Appeal dismissed

The judge was right to find that the real thrust of C’s case was that McIntyre wanted to protect C from media intrusion and that she alone should decide when to tell C about her paternity, and as such the case had not been conducted as a “best interests of the child” hearing.

Nevertheless, the judge had been mindful of the need to have regard to C’s best interests. Having regard to the way that the case was conducted it was sufficient that the judge recognised that C had a reasonable expectation of privacy in relation to her paternity, that respect for that expectation was in her best interests and that considerable weight was to be attached to her best interests.

In evaluating the strength of C’s reasonable expectation of privacy, the judge was entitled to take into account any relevant conduct of McIntyre, Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch. 481 applied.

The judge was right to regard McIntyre’s behaviour at the house party as indicative of an ambivalent approach to the confidentiality of C’s paternity.

She had never met the magazine director before and the facts of the case were not analogous to sharing confidential information with a close friend. The judge’s assessment of the situation was beyond challenge.

The fact that McIntyre, contrary to advice from solicitors acting on behalf of C, chose to go ahead with the magazine article which she knew would contain information about C and speculation as to C’s paternity amply justified the judge’s conclusion that McIntyre’s conduct demonstrated, at the least, an ambivalence towards and an inconsistent approach with her stated aim in the proceedings.

The judge was justified in concluding that in agreeing to the interview, McIntyre was playing a part in the perpetuation of facts and speculation which were at the core of the proceedings and therefore that C’s expectation of privacy was affected by McIntyre’s conduct.

The judge did not clarify what she meant by “recklessness” as fully as she might have done, but it was clear that she had in mind that C was alleged to have been the second child conceived as a result of the politician’s extramarital affairs.

She was entitled to hold that that was of itself reckless behaviour. It was established that a balancing exercise between art.8 and art.10 conducted by a first instance judge was to be treated as analogous to the exercise of discretion and an appellate court should not intervene unless the judge had erred in principle.

In sensitive privacy cases, particularly where there were cogent public interest arguments in play, there was a difficult judgment to be made in balancing those competing rights. It required a detailed appreciation of the evidence. In the instant case, it was the judge who was best placed to undertake the balancing exercise and who had the advantage of hearing witnesses and assessing them, and there could be no criticism of the way she conducted that exercise.

The judge’s refusal to grant an injunction could not be criticised.

For the claimant AAA

5RB’s James Price QC

5RB’s William Bennett

Collyer Bristow partner Dominic Crossley

For the defendant Associated Newspapers Ltd

5RB’s Desmond Browne QC

5RB’s Alexandra Marzec

RPC partner Keith Mathieson



The decision in AAA is the latest in a sequence of Court of Appeal decisions that are shaping the new law of privacy.

The House of Lords case established in Campbell v MGN that the assessment of privacy rights depended on a two-stage test. First, is the information private in the sense that art.8 is engaged and if so, does the claimant have a reasonable expectation of privacy in the information in question? If the answer is yes, the court must ask if the claimant’s art.8 rights must nonetheless yield to the defendant’s rights of freedom of expression.

On stage one, the court confirmed the weight to be attached to a child’s expectation of privacy will be affected by the conduct of her parents. That is plainly right: if parents parade their children in public they compromise their rights of privacy.

On stage two the court was in no doubt that information about the child’s paternity was a matter of public interest and indeed expressed its view in terms that would not be out of place in a Scottish kirk: “The core information in this story, namely that the father had an adulterous affair with the mother, deceiving both his wife and the mother’s partner and that the claimant, born about nine months later, was likely to be the father’s child, was a public interest matter which the electorate was entitled to know when considering his fitness for high public office.”

That is a welcome application of the principle that the media may safely publish information about public figures that is relevant to a debate of general interest.

Keith Mathieson, partner,RPC