Judgment call: 14 October

DB Schenker
DB Schenker

 Arbitration

London Steam Ship Owners Mutual Insurance Association Ltd v Spain 2013 WL 4788858. QBD (Comm). Walker J. 20 September 2013

Outcome: Application granted

In obiter comments, the court held that the provisions of the Arbitration Act 1996 s.72 on the rights of persons not participating in proceedings should be construed generously, so that s.72(1) did not have to be confined to the position before the issue of an award.  

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For the claimant London Steam Ship Owners Mutual Insurance Association

20 Essex Street’s Christopher Hancock QC; 20 Essex Street’s Charlotte Tan; Ince & Co partner Michael Volikas

For the defendant Spain

Essex Court Chambers’ Sara Cockerill QC; Essex Court Chambers’ Anna Dilnot; K&L Gates partner Ian Meredith

Civil procedure

(1)Anthony John Page; (2) Terence Albert Page (as Administrators of the estates of Annie Harriet Page and Aubrey Wilfrid Page) v (1) Hewetts Solicitors; (2) Christopher Robert Fuller. 2013 WL 4788849. Ch D. Hildyard J. 20 September 2013

Outcome: Preliminary issue determined in favour of defendants

A claim for secret profits had not been “brought” within the relevant limitation period where the claimants’ request to the court for the issue of the claim, submitted on the last possible day, had not been accompanied by the appropriate court fee.

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For the claimants

Five Paper’s Graham Platford; Cavershams Solicitors managing director Robert Last

For the defendants (1) Hewetts Solicitors; (2) Christopher Robert Fuller

Hailsham Chambers’ Dan Stacey; Hewetts Solicitors partner Oliver Kew for the first defendant; Henmans Freeth partner Duncan Crine for the second defendant 

Insolvency

McKinnon (Trustee in Bankruptcy) v Graham. 2013 WL 5328637. Ch D. Judge Behrens QC. 20 September 2013

Outcome: Appeal dismissed 

A judge had not erred in exercising his discretion under the Insolvency Act 1986 s.426(5) to apply Scottish law to proceedings brought against a Scottish bankrupt by a trustee in bankruptcy for an order for sale of property located in England. The application of Scottish law did not offend any fundamental principle of English insolvency law or public policy nor did it create manifest unfairness so as to exclude the principle of modified universalism.

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For the respondent Graham

Cathedral Chambers’ Geoffrey Knowles; Row & Scott partner Richard Scott

The applicant did not appear and was not represented

Breach of contract

Thomson Ecology Ltd v Apem Ltd. 2013 WL 5328639. Ch D. John Martin QC. 24 September 2013

Outcome: Judgment for claimants

A company employee who had given notice of termination of his employment and accepted an offer of employment from a competitor had breached his contractual duty of good faith and fidelity by failing to report a threat to the business to his superiors and actively assisting the competitor in identifying and recruiting the company’s staff.

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For the claimant Thomson Ecology Ltd

Littleton Chambers’ Chris Quinn; Blackie Herington partner Hamish Cameron Blackie

For the defendant Apem Ltd

11KBW’s Simon Devonshire QC; Eversheds associate Fiona Walker

Planning

DB Schenker Rail (UK) Ltd; (2) Towngate Estates Ltd v Leeds City Council. 2013 WL 5328642. QBD (Admin). Judge Belcher. 24 September 2013

Outcome: Application granted in part

Before a site could be safeguarded for a particular use in a local development plan, there had to be robust evidence of that use; a planning inspector would be failing in his assessment of “soundness” under the Town and Country Planning Act 1990 s.20 if he ordered the protection of a site for a period in the hope that evidence of use would come forward. A sustainability assessment did not, itself, have to cover alternative uses for the site as long as it was part of a series of documents which, acting cumulatively, did so.

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Taylor
Taylor

For the claimants DB Schenker Rail (UK) Ltd; (2) Towngate Estates Ltd

Landmark Chambers’ Reuben Taylor; Walton & Co director David Walton

For the defendant Leeds City Council

Landmark Chambers’ John Hobson QC; Leeds City Council solicitor Karen Blackmore

Planning

Fordent Holdings Ltd v Secretary of State for Communities and Local Government. Interested party: (2) Cheshire West And Chester Council. 2013 WL 5328686. QBD (Admin). Judge Pelling QC. 26 September 2013

Outcome: Application refused

In ruling on a challenge to a planning inspector’s decision to uphold the refusal of outline planning permission for a change of use for a site located within the green belt from agricultural use to a caravan and camping site, the court construed certain provisions of the National Planning Policy Framework.

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For the claimant Fordent Holdings Ltd

Kings Chambers’ Jonathan Easton; LL Barrowcliff Solicitors’ managing director Nigel Barrowcliff

For the defendant Secretary of State for Communities and Local Government

Francis Taylor Buildings’ Cain Ormondroyd; Treasury Solicitor Alexandra Lewenstein

 Agreements

Owners of the Theresa Libra v Owners of the MSC Pamela. 2013 WL 4788840. QBD (Admlty). Teare J. 19 September 2013

Outcome: Judgment accordingly

A party to an agreement to settle liability for damages arising out of a collision between two ships could not rely, as a defence, on the two-year limit on the commencement of actions under the Merchant Shipping Act 1995 s.190 as that would be inconsistent with its agreement to pay an agreed percentage of the other party’s claim.

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For the claimants Owners of the Theresa Libra

7KBW’s Richard Sarll; Holman Fenwick Willan partner James Gosling

For the defendants Owners of the MSC Pamela

Quadrant Chambers’ Robert Thomas QC instructed by Inceand Co admiralty manager David Banks 

Banking and finance

Tidal Energy Ltd v Bank of Scotland plc. 2013 WL 4788770. DR (Bristol). Judge Havelock-Allan QC. 13 September 2013

Outcome: Judgment for defendant

It was normal banking practice when using the “straight-through processing” Clearing House Automated Payment System (CHAPS) to identify the payee account only by the account number and sort code; the beneficiary’s name was put on the form for anti-money laundering and counter-terrorism purposes only. A bank’s customer who had wrongly entered the account number could not recover the money from the paying bank.

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For the claimant Tidal Energy Ltd

St John’s Chambers’ Guy Adams; Capital Law partner Philip Jones 

For the defendant Bank of Scotland plc

Guildhall Chambers’ Neil Levy; Foot Anstey partner Robin Brown

Civil procedure

R (on the application of S) v General Teaching Council for England. 2013 WL 4788788. QBD (Admin). Foskett J. 13 September 2013

Outcome: Application granted

A judge acceded to a request by the parties to a claim for judicial review not to hand down his reserved judgment. Having seen the judgment in draft form, the defendant had indicated that a settlement might be reached subject to a condition that the judgment would not be handed down and the court did not wish to disturb a compromise considered by the claimant to be in her best interests. The provision of a draft judgment was not, however, to be seen as a staging post on the way to eventual settlement.

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The claimant appeared in person

For the defendant General Teaching Council for England

39 Essex Street’s Rory Dunlop; legal adviser for the Department of Education Angela Mitchell

Tax

(1) Greathey Investments Ltd (2)  Heliconia Ltd; (3)  Peel Airports (Aespl) Ltd; (4)  Peel Ports (Bihl) Ltd; (5) Peel Property (SDL) Ltd v Revenue and Customs Commissioners. 2013 WL 4764953. FTT (Tax). Judge Charles Hellier; John Cherry. 28 August 2013

Outcome: Appeal dismissed

Applying the reasoning in Limitgood Ltd v Revenue and Customs Commissioners [2009] EWCA Civ 177, [2009] S.T.C. 980, the Taxation of Chargeable Gains Act 1992 Sch.7A applied to prohibit the offset of losses realised by a target group of companies before it joined the acquiring group against the gains of the acquiring group for the purposes of corporation and capital gains tax.

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Stone
Stone

For the appellants (1) Greathey Investments Ltd (2) Heliconia Ltd; (3) Peel Airports (Aespl) Ltd; (4) Peel Ports (Bihl) Ltd; (5) Peel Property (SDL) Ltd

Gray’s Inn Tax Chambers’ David Goldberg QC; Travers Smith LLP partner Richard Stratton 

For the respondents

Devereux Chambers’ Akash Nawbatt; Devereux Chambers’ Christopher Stone; General Counsel and Solicitor to HM Revenue and Customs Askar Ansari

VAT

Rapid Sequence Ltd v Revenue and Customs Commissioners. 2013 WL 4411343. FTT (Tax). Judge Timothy Herrington; Sonia Gable. 14 August 2013

Outcome: Appeal dismissed

The exemption for medical care in Directive 2006/112 art.132(1)(c) did not apply to a company which provided doctors on a locum basis to hospitals; the Value Added Tax Act 1994 Sch.9 Group 7 Item 5 should be construed so that it exempted only services which consisted of the direct provision of medical care.

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For the appellant

Ian Hayes, chartered tax adviser

For the respondents HMRC

Monckton Chambers’ George Peretz; general counsel and solicitor to HMRC Victoria Lee