Judgment call: 7 May 2012

The Employment Appeal Tribunal (EAT) made a reference to the European Court of Justice as to whether, in order to claim the benefit of the derogation from the requirement of continuity of service under Directive 2003/88 art.17(3)(c), the requirement for continuity of service had to be made out separately as regards each right under the directive from which derogation is made.


Associated British Ports v Bridgeman. Unreported. Employment Appeal Tribunal. Supperstone J. 4 April 2012

That issue was critical to the question of the construction and application of the Working Time Regulations 1998 reg.21 which the EAT had to determine.

Question on appeal referred to ECJ; cross-appeal dismissed

For the appellant Associated

British Ports

Devereux Chambers’ Bruce Carr QC and Sophie Belgrove; Simmons & Simmons partner Philip Bartlett and associate Matthew Perry

For the respondent Bridgeman

Littleton Chambers’ John Bowers QC; Kings Chambers’ Nicholas Siddall; Bridge McFarland partner Richard Parnell


Bruhn Newtech Ltd v (1) Datanetex Ltd (2) Peter Lashbrook (2012) EWPCC 17. Patents County Court. John Baldwin QC. 18 April 2012


The burden of establishing that a product was designed and made pursuant to a commission so that design rights subsisted within the meaning of the Copyright, Designs and Patents Act 1988 s.215 was on the party asserting a commission,

and the mere fact that a product had to be designed before it could be made was not sufficient to shift that burden.

Claim for a declaration refused

For the claimant Bruhn Newtech

8 New Square’s Robert Onslow; Trethowans partner Ian Singleton

For the defendant Datanetex

3 New Square’s Denise McFarland; Richard Griffiths & Co solicitor Mike Edgar

Ecclesiastical law

R (on the application of Rudewicz) v The Secretary of State for Justice; Interveners: Marian Fathers Charitable Trustees Inc; The Fawley Court Old Boys Association (2012) EWCA Civ 499. Court of Appeal (Civil Division). Stanley Burton LJ; McFarlane LJ; Lord Neuberger (MR). 24 April 2012


The Ministry of Justice had been entitled to grant a licence under the Burial Act 1857 s.25 for the exhumation and reinterment of a venerated Polish priest. It was for the secretary of state to decide on what grounds and in what circumstances to grant a licence and, apart from an obligation to act rationally, and otherwise in accordance with the general law (including in relation to human rights), there was no operative presumption against exhumation.

Appeal dismissed

For the respondent the Secretary of State for Justice

4-5 Gray’s Inn Square James Strachan; Treasury Solicitor

For the first interested party the Marian Fathers Charitable Trustees

Written submissions received

For the second interested party the Fawley Court Old Boys Association

Devereux Chambers’ Oliver Hyams; Pothecary Witham Weld partner Jerry Hawthorne



Stevenson v Atos Origin IT Services UK Ltd. Unreported. Employment Appeal Tribunal. Supperstone J; M Worthington;

A Harris. 4 April 2012

The employment tribunal lacked jurisdiction to determine a complaint of race discrimination where the complainant’s appointment to a temporary position with a French company group was not employment at an establishment in Great Britain within the Race Relations Act 1976 s.4.

Appeal dismissed

For the appellant Stevenson

9 Gough Square’s Philip Jones; Ashfords partner Charles Pallot

For the respondent Atos Origin IT Services UK

11KBW’s Nigel Porter instructed directly



R (on the application of Godfrey) v Southwark London Borough Council. Interested party: BDW Trading Ltd (2012) EWCA Civ 500. Court of Appeal (Civil Division). Pill L; Patten LJ; Moore-Bick LJ. 24 April 2012


A rigorous standard was to be applied when a substantive legitimate expectation was claimed on the basis of a representation or promise made by a public authority. A previous understanding between a local authority and members of the community that there would be a free-standing community hall as part of the development of a site was not a given requirement in a subsequent grant of planning permission, did not amount to a substantive legitimate expectation and failure to give effect to that understanding did not amount to an abuse of power.

Appeal dismissed

For the appellant R (on the application of Godfrey)

No 5 Chambers’ Ian Dove QC; 39 Essex Street’s James Burton; Richard Buxton associate Lisa Foster

For the respondent Southwark London Borough Council

Landmark Chambers’ Dan Kolinsky instructed directly

For the interested party

BDW Trading Ltd Landmark Chambers’ Neil King QC and Robert Walton; Richard Max & Co partner David Warman



(1) Quinn Finance (2) Irish Bank Resolution Corporation Ltd

(3) Quinn Hotels Praha AS

(4) Demesne Investments Ltd v Galfis Overseas Ltd (2012) NICh 9. Chancery Division (Northern Ireland). McCloskey J. 30 March 2012

Purported assignments of company debts worth around £100m for a total consideration of less than £5,000 were null and void, having been unlawfully backdated and executed without authority. They were also liable to be set aside as transactions defrauding creditors.

Judgment for plaintiffs


For the plaintiffs (1) Quinn Finance (2) Irish Bank Resolution Corporation Ltd (3) Quinn Hotels (4) Demesne Investments Ltd

South Square’s Gabriel Moss QC; Tughans partners Michael McCord and Toby McMurray