Judgment call: 14 May 2012

The tribunal gave guidance on the correct approach to the exercise of its discretion to permit an appeal to be made out of time.

Justin Fenwick QC
Justin Fenwick QC

Civil procedure

(1) Elnagy International Ltd;

(2) Elnagy UK Ltd; (3) Elnagy

JR Ltd; (4) Elnagy Trading; (5) Belgravia Trading Ltd; (6) Puregold Enterprises Ltd v Revenue and Customs Commissioners (2012) UKFTT 269 (TC). First-tier Tribunal (Tax Chamber). Judge Roger Berner.

2 April 2012

The tribunal gave guidance on the correct approach to the exercise of its discretion to permit an appeal to be made out of time.

Application granted in part

For the appellants (1) Elnagy International Ltd & Os

2 Bedford Row’s Stephen Ferguson; Neumans senior partner Nabeel Sheikh and associate Laura Dacau

For the respondent Revenue and Customs Commissioners

Blackstone Chambers’ Kieron Beal QC and Simon Pritchard; General Counsel and Solicitor for HM Revenue and Customs Anthony Inglese


ENE 1 Kos Ltd v Petroleo Brasileiro SA (2012) UKSC 17. Supreme Court. Lord Phillips JSC (President); Lord Walker JSC; Lord Mance JSC; Lord Clarke JSC; Lord Sumption JSC.

2 May 2012

After lawfully withdrawing a time-chartered ship for non-payment of hire, the owner had to discharge the ship’s cargo in its own time and at its own expense. That was not a risk that it had assumed under the contract and it fell within the standard contractual employment and indemnity clause which, properly construed, meant it was entitled to hire and fuel payments. Alternatively, the owner was entitled to the same payments as non-contractual bailee of the cargo after the withdrawal of the vessel.

Appeal allowed

For the appellant ENE 1 Kos Ltd

7KBW’s Timothy Brenton QC; Ince & Co partner Jeremy Biggs

For the respondent Petroleo Brasileiro SA

20 Essex Street’s Andrew Baker QC and Henry Byam-Cook; Thomas Cooper partner Ann Marsden

Human rights

R (on the application of Gallastegui) v (1) Westminster City Council; first interested party The Commissioner of the Metropolis; second interested party The Secretary of State for the Home Department (2012) EWHC 1123 (Admin). Divisional Court. Sir Anthony May (President, QB); Silber J.

27 April 2012

The provisions in the Police Reform and Social Responsibility Act 2011 Pt 3, which conferred powers on the police and authorised officers of the local authority to stop protesters erecting and using tents in Parliament Square, did not infringe the protesters’ rights to freedom of expression and freedom of assembly under the European Convention on Human Rights 1950 art.10 and art.11.

Application refused

For the claimant Gallastegui

Matrix Chambers’ Jessica Simor and Christopher Brown; Bindmans partner Paul Ridge

For the defendant Westminster City Council

Landmark Chambers’ Nathalie Lieven QC and Jacqueline Lean; instructed directly by Westminster City Council

For the first interested party The Commissioner of the Metropolis

7 Bedford Row’s Adam Clemens; instructed directly by the Metropolitan Police

For the second interested party the Secretary of State for the Home Department

11KBW’s Jonathan Swift QC; Blackstone Chambers’ Gerard Clarke; instructed directly by the Treasury Solicitor

Civil procedure

(1) Adams and the individuals listed in schedule 1 to the amended claim form v (1) Ford and others listed in schedule 2 to the amended claim form; (2) Jonathan Roper; (3) John Bailey; (4) Collyer Bristow (2012) EWCA Civ 544 Court of Appeal (Civil Division) Arden LJ; Toulson LJ; Black LJ.

26 April 2012

The principle in Presentaciones Musicales SA v Secunda (1994) Ch. 271, that a claim issued by a solicitor without authority was not a nullity and could be adopted by the purported claimant, had not been reversed by the provisions of the Civil Procedure Rules requiring a claim form to incorporate a statement of truth. There was no categorical rule that the issue of proceedings without valid authority from the claimant necessarily amounted to an abuse of process.

Appeal dismissed

For the appellants (1)

4 New Square’s Justin Fenwick QC and Ben Hubble QC; DAC Beachcroft partner Justin Miller

For the respondents (1) to (4)

4 New Square’s Graham Chapman and Shail Patel; Enyo Law partner Michael Green

Administrative law

Department of Health v (1) Information Commissioner; (2) Rt Hon John Healey MP; (3) Nicholas Cecil Unreported.

First-tier Tribunal (General Regulatory Chamber).

Judge John Angel; Richard Enderby; Darryl Stephenson.

5 April 2012

The First-tier Tribunal found that the Department of Health should have acceded to a request under the Freedom of Information Act 2000 for disclosure of a transition risk register that set out the risks of implementing the Government’s proposed reforms of the NHS.

Appeal allowed in part


For the appellant Department of Health

Blackstone Chambers’ James Eadie QC and Ivan Hare; instructed directly by the

Treasury Solicitor

For the respondent Information Commissioner

11KBW’s Timothy Pitt-Payne QC and Robin Hopkins

For the second respondent Rt Hon John Healey MP

11KBW’s Holly Stout; Steel & Shamash partner Gerald Shamash

The third respondent was unrepresented



Rahman v (1) Commissioner of Police of the Metropolis; (2) Secretary of State for the Home Department. Unreported. Employment Appeal Tribunal; Mittings J.

25 April 2012

In employment proceedings heard in private for reasons of national security, the Employment Appeal Tribunal construed the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Sch.2 para.8 so as to ensure that the provision afforded substantially the same degree of protection for an excluded person as the

codes relating to closed procedures in other contexts.

It highlighted an unavoidable and undesirable by-product of such an interpretation and gave guidance about how employment tribunals could, and should, circumvent it.

Appeal allowed, cross-appeal allowed

For the appellant Rahman

Matrix Chambers’ Karon Monaghan QC; Russell Jones & Walker solicitor Jasmine

van Loggerenberg

For the first respondent Commissioner of Police of the Metropolis

Outer Temple’s Keith Bryant; instructed directly by the Metropolitan Police Service

For the second respondent Secretary of State for the Home Department

Fountain Court’s Adam Tolley; St Philips Chambers’ Tariq Sadiq (special advocate); instructed directly by the Treasury Solicitor