Judgment call 5th March 2012

The court should order an interim payment if satisfied that the conditions in CPR r.25.7(1)(c) were fulfilled unless there was a specific reason not to do so.

Civil procedure

Brian Nicholson
Brian Nicholson

Revenue and Customs Commissioners v GKN Group (2012) EWCA Civ 57. Court of Appeal (Civil Division). Ward LJ; Lewison LJ; Aikens LJ.

31 January 2012

The facts that the application for an interim payment was made in the context of a group litigation order and the applicant was not a test claimant did not amount to such reasons.

Appeal dismissed

For the appellant

Pump Court Tax Chambers’ Rupert Baldry QC and James Rivett, instructed directly by the solicitor to HM Revenue & Customs
For the respondent

One Essex Court’s David Cavender QC; Dorsey & Whitney partner Simon Whitehead


Official Receiver v Negus (2011) EWHC 3719 (Ch). Chancery Division. Newey J.

16 December 2011

The fact the sums that would be received by a bankrupt’s estate under an income payments order under the Insolvency Act 1986 s.310 would be unlikely to be sufficient to enable a distribution to unsecured creditors was not a ground for refusing to make the order, nor was it relevant when deciding whether to make such an order.

Appeal allowed

Iain Purvis QC
Iain Purvis QC

For the appellant

Blackstone Chambers’ Andreas Gledhill, instructed directly by the Treasury Solicitor

For the respondent

11 Stone Buildings’ Peter Head; SGH Martineau associate Duncan Lockhart

Real estate

Cameron v Boggiano & Robertson (2012) EWCA Civ 157. Court of Appeal (Civil Division). Mummery LJ; McFarlane LJ; Rimer LJ. 21 February 2012

A judge had erred in failing to construe a title plan and documents by taking account

of topographical features where the title plan and documents were insufficiently clear

about the position of a disputed boundary. The court also held that to establish a sufficient outward expression of accord to sustain a claim for rectification on the basis of common mistake, there was no evidential requirement to rely upon a particular type of document.

Appeal dismissed, cross-appeal allowed

For the appellant

Hardwicke’s Andrew Skelly; Berrymans Lace Mawer partner Peter Fitzpatrick

For the respondents

Clerksroom’s Alexander Dumbill; JH Powell & Co solicitor Jonathan Hill


David Cavender
David Cavender

Company law

Blight & Ors v Brewster (2012) EWHC 165 (Ch). Chancery Division. G Moss QC.

9 February 2012


There was a strong principle, and a policy of justice, that debtors should not be allowed to hide assets in pension funds when they had a right to withdraw funds needed to pay creditors. In the circumstances, a judgment debtor’s right to take a tax-free lump sum cash payment from a pension fund was a right tantamount to ownership and the court ordered the delegation of that right to creditors’ solicitors under the Senior Courts Act 1981 s.37.

Appeal allowed

For the appellants

9 Stone Buildings’ Christopher Spratt; CL Clemo & Co partner James O’Connor

For the respondent

3 Stone Buildings’ James Weale; Crawford Solicitors principal Caroline Crawford


Capita Hartshead Ltd v Byard. Unreported. Employment Appeal Tribunal. Silber J; H Singh; T Motture. 20 February 2012

In an unfair dismissal claim an Employment Tribunal was entitled to scrutinise the employer’s choice of pool from which employees would be selected for redundancy.

Appeal dismissed

For the appellant

Broadway House Chambers’ Paul Wilson; Irwin Mitchell partner Glenn Hayes

For the respondent

3PB Barristers’ Ebony Alleyne; Lyons Davidson solicitor Eleanor Cowen

Human rights

 The Mayor, commonality and citizens of the City of London v (1) Samede (a representative of those persons taking part in a protest camp at St Paul’s Churchyard, London EC4); (2) Barda; (3) Ashman; (4) Persons Unknown (being persons taking part in a protest camp at St Paul’s Churchyard) (2012) EWCA Civ 160. Court of Appeal (Civil Division). Lord Neuberger MR; McFarlane LJ; Stanley Burnton LJ. 22 February 2012

The rights of protesters under the European Convention on Human Rights 1950 art.10 and art.11 were engaged in relation to the maintenance of their camp but they could not persuade an appellate court the judge had been wrong

to order their removal.

Application refused

For the claimant

Landmark Chambers’ David Forsdick and Zoe Leventhal; City of London Corporation City solicitor and comptroller Andrew Colvin

For defendant (1)

25 Bedford Row’s John Cooper QC; Garden Court’s Michael Paget; Kaim Todner partner Karen Todner


Nokia GmbH v IPCom GmbH & Co KG (2012) EWHC 225 (Pat). Chancery Division (Patents Court). Floyd J. 20 February 2012

The Patents Court revoked a European patent relating to a method of handing over communications between a mobile telephone and a first base station to a second base station on grounds of invalidity. It also ruled on whether various applications to amend the claims were allowable and whether any of those claims were essential to telecommunications standards.

Judgment accordingly

For the claimant

8 New Square’s Michael Tappin QC and Mark Chacksfield; Bird & Bird partner Katherine Stephens

For the defendant

11 South Square’s Iain Purvis QC and Brian Nicholson; Bristows partner Myles Jelf

Health & safety

The court commented on factors for assessing damages to be awarded for pain, suffering and loss of amenity for mesothelioma, and on the lower level figure for awards in the Judicial Studies Board Guidelines 10th edition. Damages of £50,000 were awarded to a claimant based on his symptoms, his short life expectancy and the loss of his independence due to the illness.

Damages assessed

For the claimant

Lincoln House Chambers’ Ivan Bowley; Fentons Solicitors partner Lesley Mynett

For the defendant

Parklane Plowden’s Michael Ditchfield; Nabarro associate Simon Webb