Judgment call: 9 April 2012

The European Convention on Human Rights 1950 art.10 had no application to a case involving a journalist’s application to the Charity Commission for the disclosure of information concerning an inquiry it had conducted, and the Freedom of Information Act 2000 s.32(2) did not have to be read down to give effect to it.

Christopher Nugee
Christopher Nugee

Human rights

Kennedy v Information Commissioner. [2012] EWCA Civ 317. Court of Appeal (Civil Division) Ward LJ; Sir Robin Jacob; Etherton LJ. 20 March 2012

Appeal allowed; cross-appeal allowed

For the appellant Kennedy
4-5 Gray’s Inn Square’s Philip Coppel QC and Andrew Sharland; Bates Wells & Braithwaite partner Rupert Earle

For the respondent Charity Commission
5 Essex Court’s Jason Beer QC; 11KBW’s Rachel Kamm; instructed directly

For the first intervener the Information Commissioner
11KBW’s Ben Hooper; instructed directly

For the second intervener the Secretary of State for Justice
11KBW’s Karen Steyn; instructed by the Treasury Solicitor


BESTrustees Plc v Kaupthing Singer & Friedlander Ltd (in administration). [2012] EWHC 629 (Ch). Chancery Division. Sales J. 16 March 2012

Under the Occupational Pension Schemes (Employer Debt) Regulations 2005 reg.5, the time at which both a pension scheme’s assets and the cost of the notional acquisition of annuities in the market to match its liabilities were to be assessed was the date of the event that triggered the application of the Pensions Act 1995 s.75.Declaration granted in favour of defendant

For the claimant BESTrustees
Wilberforce Chambers’ Christopher Nugee QC; Pinsent Masons solicitor Charlotte Scholes

For the defendant Kaupthing Singer & Friedlander
Wilberforce Chambers’ Jonathan Hilliard; Freshfields Bruckhaus Deringer solicitor Alexandra Fricke

Banking and finance

Euroption Strategic Fund Ltd v Skandinaviska Enskilda Banken AB. [2012] EWHC 584 (Comm). Commercial Court. Gloster J. 15 March 2012

A tortious duty of care could not be implied into the relationship between an investment fund trading in derivatives and its clearing broker in circumstances where the broker had exercised its right to conduct a forced close-out of the fund’s portfolio owing to non-payment of a margin call. Similarly, it was not appropriate to imply a term pursuant to the Supply of Goods and Services Act 1982 s.13 that the broker would conduct the close-out using reasonable care and to a suitably professional standard.
Judgment for defendant

For the claimant Euroption Strategic Fund
4 Stone Buildings’ Sharif Shivji; Stewarts Law partner Sean Upson

For the defendant Skandinaviska Enskilda Banken
One Essex Court’s Daniel Toledano QC and Sam O’Leary; Clifford Chance lawyer Martin Power

Civil procedure

Walter Lilly & Co Ltd v Mackay. [2012] EWHC 649 (TCC). Technology & Construction Court. Akenhead J. 15 March 2012

Legal professional privilege and legal advice privilege did not attach to correspondence to and from a company which had provided claims and project-handling advice in connection with a construction project.
Application granted

For the claimant Walter Lilly
4 Pump Court’s Sean Brannigan QC; 4 New Square’s Annaliese Day (now QC); RPC partner Ron Nobbs

For the defendant Mackay
4 New Square’s David Sears QC; Atkin Chambers’ Serena Cheng and David Johnson; Nabarros partner Steven Williams


Flood v Times Newspapers Ltd. [2012] UKSC 11. Supreme Court. Lord Phillips JSC; Lord Brown JSC; Lord Dyson JSC; Lord Clarke JSC; Lord Mance JSC. 21 March 2012

The Supreme Court considered the elements necessary for a successful claim of Reynolds privilege in a defamation claim, in particular whether it was in the public interest to report allegations of police corruption while an investigation was ongoing, and the steps that a reasonable journalist should take to verify the information.
Appeal allowed in part

For the appellant Times Newspapers
One Brick Court’s Richard Rampton QC and Kate Wilson; Doughty Street’s Heather Rogers QC; instructed directly by Times Newspapers

For the respondent Flood
5RB’s James Price QC and William Bennett; Edwin Coe partner Nick Neocleous


(1) Regeneron Pharmaceuticals Inc; (2) Bayer Pharma AG v Genentech Inc. [2012] EWHC 657 (Pat). Chancery Division (Patents Court). Floyd J. 22 March 2012

It was not appropriate to revoke a patent relating to medical treatment where it did not lack novelty, it had involved an inventive step and the patent claim had been sufficient. Consideration of whether it had been “obvious to try” was still relevant but it was the invention which had to be obvious to try and, in a use case, the expectation of success had to be sufficient to induce the skilled person to use the invention.
Judgment for defendant

For the claimant Regeneron Pharmaceuticals
Three New Square’s Andrew Waugh QC and Thomas Mitcheson; Simmons & Simmons managing associate Scott Parker

For the claimant Bayer Pharma
8 New Square’s Richard Meade QC and Mark Chacksfield; Bird & Bird partner Trevor Cook

For the defendant Genentech
8 New Square’s Michael Tappin QC and Isabel Jamal; Marks & Clerk partner Mike Gilbert


Tesco Stores Ltd v Dundee City Council. [2012] UKSC 13. Supreme Court. Lord Hope JSC; Lord Brown JSC; Lord Reed JSC; Lord Dyson JSC; Lord Kerr JSC. 21 February 2012

When granting outline planning permission for the development of an out-of-town superstore, the local planning authority had properly interpreted and applied one of the policies in the development plan.
Appeal dismissed

For the appellant Tesco Stores
No 5 Chambers’ Martin Kingston QC; Ampersand Stable’s Jane Munro; Semple Fraser partner Kenneth Carruthers

For the respondent Dundee City Council
Terra Firma Chambers’ Douglas Armstrong QC; Cornerstone Barristers James Findlay QC; Gillespie Macandrew consultant Keith McFarlane

For interveners Asda Stores and MacDonald Estates Group
Ampersand Stable’s Malcolm Thomson QC; Axiom Advocates Kenny McBrearty; Brodies partner Joyce Cullen


Golden Eye (International) Ltd & Ors v Telefonica UK Ltd. [2012] EWHC 723 (Ch). Chancery Division. Arnold J. 26 March 2012

In a claim by copyright owners for Norwich Pharmacal relief against an internet service provider, where the copyright owners suspected peer-to-peer file sharing of their material, the court acknowledged companies’ rights to seek redress for infringement, but insisted that any claim letters or “speculative invoices” sent to customers whose details were released had to safeguard their interests. The court had to carefully consider the terms of a draft letter, and guidance was given regarding content.
Judgment for claimants in part

For the claimant Golden Eye (International)
Littleton Chambers’ Jonathan Cohen; Wagner & Co principal Mark Wagner

For the intervener Consumer
Focus Hogarth Chambers’ Guy Tritton instructed directly

The defendant Telefonica UK Ltd did not appear and was not represented