UKSCBlog http://www.cqzpie.icu UK Supreme Court Blog Fri, 04 Sep 2020 10:58:59 +0000 en-US hourly 1 https://wordpress.org/?v=4.6.1 Case Comment: Sevilleja v Marex Financial Ltd [2020] UKSC 31 http://www.cqzpie.icu/case-comment-sevilleja-v-marex-financial-ltd-2020-uksc-31/ http://www.cqzpie.icu/case-comment-sevilleja-v-marex-financial-ltd-2020-uksc-31/#respond Fri, 04 Sep 2020 10:58:59 +0000 http://www.cqzpie.icu/?p=21796 In this case comment, David Bridge and Jessica Foley, both solicitor-advocates within the CMS litigation & arbitration team, comment on the decision handed down by the UK Supreme Court earlier this summer in the matter of?Sevilleja v Marex Financial Ltd [2020] UKSC 31, which concerned?whether the rule against reflective loss bars creditors of a company from claiming directly against a third party for asset-stripping the company.

On 15 July 2020, the UK Supreme Court handed down its much-anticipated judgment in the case of?Sevilleja v Marex Financial Ltd?[2020] UKSC 31, significantly cutting back the scope of the “reflective loss” principle that had been steadily expanding for several decades.

Background

The rule against reflective loss

The rule that “reflective loss” cannot be recovered has its origins in?Prudential Insurance Co Limited v Newman Industries Limited (No 2)?[1982] Ch 204.? In that case the Court held that a shareholder cannot bring a claim in respect of a diminution in the value of their shareholding (or a reduction in the distributions which they receive by virtue of their shareholding), which is merely the result of a loss suffered by the company as a result of a wrong done to it by the defendant, even if the defendant’s conduct also involved the commission of a wrong against the shareholder, and even if no proceedings have been brought by the company.? The shareholder’s loss is not a personal, separate and distinct loss from that sustained by the company, so does not give rise to an independent claim to damages. This decision is consistent with the rule established in?Foss v Harbottle?(1843) 2 Hare 461, namely that the only person who can seek relief for an injury to a company, where the company has a cause of action, is the company itself.

Twenty years later, in?Johnson v Gore Wood & Co?[2002] 2 AC 1, the Court of Appeal purportedly (in the words of the Supreme Court yesterday) followed the?Prudential?decision, reiterating the?Foss v Harbottle?rule and holding that a shareholder cannot sue for the recovery of a diminution in the value of his shares or in distributions, where that loss flows from loss suffered by the company and that company has a cause of action to recover its loss (even if it has declined or failed to pursue that cause of action).? However, as discussed further below, the Supreme Court has now observed that some of the reasoning in?Johnson?“was?not clearly confined to circumstances of the kind with which Prudential was concerned” and paved the way for the expansion of the rule beyond the narrow ambit of the circumstances at issue in?Prudential.

An exception to the reflective loss rule was established in?Giles v Rhind?[2002] EWCA Civ 1428, in which the Court of Appeal held that the rule did not apply where the wrong caused to the company had made it impossible for the company to pursue a remedy against the wrongdoer.? In such circumstances, the shareholder can bring a claim even if it is for reflective loss.? The decision in this case was followed in subsequent cases, including?Gardner v Parker?[2004] EWCA Civ 781.? This exception was also examined by the Court of Appeal in?Sevilleja v Marex.

Sevilleja v Marex Financial Ltd

The case involved Mr Sevilleja – the owner of two companies (the “Companies”) incorporated in the British Virgin Islands, which were involved in foreign exchange trading – and Marex Financial Ltd (“Marex”), a creditor of the Companies.? Marex had initially brought proceedings against the Companies in the Commercial Court, and obtained a judgment debt and costs against them. Following the draft judgment being issued to Marex and Mr Sevilleja, Mr Sevilleja arranged for funds held by the Companies to be transferred into his personal control.? This resulted in the Companies being unable to satisfy the judgment debt and costs awarded in favour of Marex.? Mr Sevilleja later placed the Companies into insolvent voluntary liquidation.

Marex subsequently sought damages in tort from Mr Sevilleja for inducing or procuring the violation of Marex’s rights in relation to the judgment debt and related court orders, and intentionally causing it to suffer loss by unlawful means.? Mr Sevilleja claimed that certain of the amounts claimed by Marex could not be recovered because they were merely reflective of the loss suffered by the two Companies, which had concurrent claims against him. The Court of Appeal held that the reflective loss principle barred Marex from recovering those amounts.? It applied the decision in?Gardner v Parker, in which the Court had in turn relied on the reasoning in?Johnson?(in particular Lord Millet’s speech, discussed below), and found that the reflective loss principle not only applied to claims by shareholders, but also to claims arising from a creditor’s inability to recover a debt owed to it by a company in which the creditor was a shareholder.

Marex appealed the Court of Appeal’s decision to the Supreme Court, which was invited by the Court of Appeal to review the principle of reflective loss generally, including its conceptual basis.

The (majority) Supreme Court’s decision

The Supreme Court (with majority judgments from Lord Reed and Lord Hodge) closely examined the authorities on the principle of reflective loss, in particular?Prudential?and?Johnson.??The Court held that the speech of Lord Bingham in?Johnson?was consistent with the decision in?Prudential?that a shareholder is usually unable to recover a diminution in the value of their shareholding or in dividends/distributions due to them, as a result of loss suffered by the company and where the company has a cause of action to recover such loss (regardless of whether it has declined or failed to take action to recover that loss).

However, the speech of Lord Millet in?Johnson?came under particular scrutiny by the Supreme Court, which observed that Lord Millet had relied on the rule against double recovery – a principle of wider application – as justifying the?Prudential?rule.? The Court noted that this was problematic because the double recovery rule is premised on recognising that a shareholder’s loss exists (but just does not permit it to be recovered), whereas the?Prudential?rule denies that the shareholder’s loss exists at all.? Where there is no recoverable loss, a shareholder cannot bring a claim, regardless of whether the company pursues its own cause of action.

The majority of the Court recalled the basic nature and attributes of company shares in its reasoning, noting that shares are “merely a right of participation in the company on the terms of the articles of association”.? Whereas a loss to a company may well cause a fall in share value in certain circumstances (particularly in small, private companies), there is not necessarily always a correlation between the two, meaning that an award of damages restoring the company’s position will not always restore a shareholder’s share value.? The avoidance of double recovery is therefore not sufficient to justify the?Prudential?rule.

As a result of the decision in?Johnson?erroneously rooting the?Prudential?rule in double recovery reasoning, shareholders in subsequent cases have been able to circumvent the reflective loss rule by, for example, seeking injunctions rather than damages as their remedy.? In the meantime, in decisions such as?Gardner v Parker, the courts have expanded the application of the rule beyond the narrow ambit of?Prudential?to shareholders acting in their capacity as creditors expecting repayment of a debt.? The Supreme Court held that?Gardner v Parker?was wrongly decided.

The Court also found unpersuasive Lord Millet’s reliance on other arguments, including:

  • Causation, i.e. that the true loss to a shareholder is caused by a company’s decision not to pursue its remedy, and not by the defendant’s wrongdoing.? The Court noted, among other things, that the failure of a company to sue (or its decision to settle) may be the result of impecuniosity caused by the defendant’s wrongdoing, so the company’s decision does not constitute an intervening act in the chain of causation.
  • Policy considerations, including the need to avoid potential conflicts of interest between the personal interests of directors and the company claimant, which the Court noted does not justify a general rule against preventing shareholders from pursuing claims that are consequential on a company’s loss – the principle is not confined to shareholders who are also directors.

The Supreme Court considered that the “critical point” is that a shareholder has not suffered a loss that is regarded by the law as being separate and distinct from the company’s loss, and therefore has no claim to recover it.? Shareholders instead have access to other rights that may be relevant, such as the right to bring a derivative or unfair prejudice claim.? These considerations do not apply in the context of a creditor/company relationship.? If a creditor pursues a claim in respect of a loss resulting from a company’s loss, there is no conflict with the?Foss v Harbottle?rule.

The Court also examined?Giles v Rhind, which had established an exception to the rule in circumstances where the wrong caused to the company had made it impossible for the company to pursue a remedy against the wrongdoer.? The Court recalled the fundamental basis of the decisions in?Prudential?and?Johnson, namely that a shareholder whose shares have fallen in value as a consequence of a company’s loss has not suffered a recoverable loss.? This conclusion is not affected by whether the company is financially able to bring a claim or not.? Therefore the Court concluded that the so-called exception does not exist.

Having examined the authorities in great detail, the Court’s application of the reasoning to the facts of the present case was straightforward; this case did not concern a shareholder, so the rule on reflective loss simply did not apply.? Marex’s appeal was allowed.

The minority judgment

Lord Sales gave the judgment for the minority.? Despite agreeing that the appeal should be allowed, the minority took issue with the view that?Prudential?had laid down a “bright line” rule of law that a shareholder with a parallel claim to that of a company “simply had to be deemed to suffer no different loss of his own”. There were, the minority found, “some cases where the shareholder does suffer a loss which is different from the loss suffered by the company”, and it should not be open to a court simply to rule such claims out.?? Where the wrongs and the losses suffered by the claimant shareholder and the company are different, they each have different, personal, causes of action, and a shareholder should not be “subjected to the collective decision-making procedures which apply when the company decides what to do in relation to any cause of action it may have”.? The minority considered that the exclusion of the shareholder’s cause of action falls outside the?Foss v Harbottle?rule rather than being consistent with it; it would actually erode the principle of the separate legal personality of the company simply to deny that the shareholder has a separate cause of action.

Lord Sales stated in his judgment for the minority that the reflective loss principle was a “flimsy foundation” on which to “build outwards into other areas of the law” and that the reasoning of both Lord Bingham and Lord Millet in?Johnson, so far as it endorsed the principle originating in?Prudential?in relation to claims by shareholder claimants, was not sustainable.? He concluded by noting that, even if the reflective loss principle exists, it did not apply to the Marex case.

Comment

The Supreme Court’s decision is a significant development, the effect of which is to create a “bright line” reflective loss principle that is limited to shareholders who bring claims for the loss in value of their shares or distributions, where that loss is a consequence of the company having suffered loss, in relation to which the company has a cause of action.? Any other claims, such as those of a creditor, will not be caught by the ambit of the rule.? This decision will be welcomed by many potential claimants, who may otherwise have found that the expansion of the rule prevented them from being able to recover their losses where their claims were concurrent to those of companies.

In addition, the Court has confirmed that there is no?Giles v Rhind?exception to the rule in circumstances where the action of the defendant makes it impossible for the company to pursue a claim.? This exception was likely to be of quite narrow application anyway, and may not have been of much assistance to claimants.? However, the removal of this exception removes the likelihood of further litigation around issues such as the meaning of “impossibility” and the causal link between the defendant’s wrongdoing and that impossibility.? Although the increased certainty is positive, the complete removal of this exception does mean that situations may arise where a wrongdoer’s conduct goes entirely unremedied, with both a company and its shareholder being unable to pursue their claims.

The judgment is welcome in that the existence of a “bright line” rule in this context creates simplicity and certainty and should therefore reduce the volume of litigation involving parties seeking to avail themselves of an ever-expanding principle or the possibility of exceptions.? However, as noted in the minority judgment, will this simplicity come “at the cost of working serious injustice” for shareholders who may well have suffered loss that is real and different from that suffered by the company? The minority declined to apply such strict limitations to an area of law that could present “complex situations”, requiring the courts to work through them in “nuanced and pragmatic ways”.? However, in the light of 40 years of case law development in this area, the majority ultimately decided in favour of creating a clearly defined scope of the rule, embedded in company law principles, which will provide much needed certainty for commercial parties.

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Case Comment: R (on the application of Palestine Solidarity Campaign Ltd and another) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16 http://www.cqzpie.icu/case-comment-r-on-the-application-of-palestine-solidarity-campaign-ltd-and-another-v-secretary-of-state-for-housing-communities-and-local-government-2020-uksc-16/ http://www.cqzpie.icu/case-comment-r-on-the-application-of-palestine-solidarity-campaign-ltd-and-another-v-secretary-of-state-for-housing-communities-and-local-government-2020-uksc-16/#respond Wed, 02 Sep 2020 07:21:18 +0000 http://www.cqzpie.icu/?p=21794 In this case comment, Jana Blahova and Imtiyaz Chowdhury, both trainee solicitors with CMS, comment on the decision handed down by the UK Supreme Court in the matter of?R (on the application of Palestine Solidarity Campaign Ltd and another) v Secretary of State for Housing, Communities and Local Government [2020] UKSC 16, which concerned whether parts of the Secretary of State’s guidance on the investment of Local Government Pensions Schemes relating to UK foreign and defence policy were for an unauthorised purpose.

On 29 April 2020, the UK Supreme Court ruled in R (on the application of Palestine Solidarity Campaign Ltd & Anor) v Secretary of State for Communities and Local Government [2020] UKSC 16 that the Secretary of State’s guidance prohibiting the local authorities who administer the local government pension scheme from making investments contrary to UK foreign or UK defence policy was unlawful as it did not fall within the power conferred by Parliament on the Secretary of State. This decision highlights that fiduciary duties of local authorities arising from their roles as administrators of the pension scheme will prevail even in circumstances where their investment decisions conflict with the policies of central government.

Background

This appeal concerned the guidance issued by the Secretary of State on 15 September 2016, entitled “Local Government Pension Scheme: Guidance on Preparing and Maintaining an Investment Strategy Statement” (the “Guidance”). The aim of the Guidance was the formulation, publication and maintenance by administering authorities of their investment strategy in relation to the pension scheme. Included in the guidance were two passages according to which the authorities administering the pension scheme should not pursue policies contrary to UK foreign or UK defence policy.

The claim for judicial review of the two passages in the Guidance was launched by two claimants. The first is Palestine Solidarity Campaign Ltd: a company dedicated to support of the rights of the Palestinian people and opposing racism. The second is Ms Jacqueline Lewis, a member of the company’s executive committee and an employee of a local authority who is also a member of the pension scheme.

On 22 June 2017, the Administrative Court of the High Court of England and Wales declared the two passages in the guidance under challenge to be unlawful. However, on 6 June 2018, the Court of Appeal reversed the decision, upholding the Secretary of State’s appeal and dismissing the claim. The Court of Appeal’s judgment was then appealed to the Supreme Court.

Decision

?The Supreme Court allowed the appeal, by a majority decision. The court’s judgment can be summarised as follows:

  • In considering whether the two relevant passages contained in the Guidance were lawful, it was noted by the court that the scope of power conferred by Parliament on the Secretary of State had to be analysed. The court referred to the decision in the earlier case of Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1, which held that when considering Parliament’s intention as to the power to be conferred, the intention “must be determined by construing the [relevant] Act as a whole…”.
  • Accordingly, the court considered the relevant provisions in the Public Service Pensions Act 2013, s 3, and the Public Service Pensions Act 2013 (the “2013 Act”), Sch 3, which identified the matters which Parliament had in mind when conferring the power, such as the “administration and management of the scheme”. It was also noted by the court that the Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (the “2016 Regulations”), reg 7, required the investment strategy adopted by the relevant local authority in relation to the management of the pension scheme to include the authority’s policy on how non-financial considerations are taken into account. In addition, the Guidance required two tests to be met when considering non-financial considerations as part of the investment strategy: 1) does the proposed step involve significant risk of financial detriment to the pension scheme?; and 2) is there good reason to think that members would support taking it?
  • The court held that the relevant wording in the 2013 Act, the 2016 Regulations and the Guidance (as set out above) indicated that the 2013 Act only intended to identify the procedures and strategy by which the local authorities should administer the pension scheme. The local authorities who administered the pension scheme did not discharge conventional local government functions – they have duties which are similar to that of trustees. It was therefore held that the inclusion by the Secretary of State of the relevant passages in the Guidance, which effectively sought to enforce the government’s foreign and defence policies, exceeded his powers, as he could not direct what investments the local authorities made, only how they should approach their decision-making by reference to non-financial factors. Although Lord Carnwath (in line with the dissenting opinions of Lord Sales and Lady Arden) disagreed with Lord Wilson’s view that the scope of the Guidance is limited to “purely procedural or operational matters”, he stated that this did not open the door to “the delineation of the functions of central government in relation to the fund”.
  • The 2013 Act and the 2016 Regulations required any guidance issued regarding the administration of the pensions scheme to respect the primary responsibility of the local authorities as quasi-trustees of the pension scheme, and so the Secretary of State could not make the local authorities give effect to his own policies, which were matters for the government to deal with.

Practical considerations

The decision in this case highlights that government ministers must consider the extent of any powers conferred on them by Parliament, by reviewing the language of the relevant Act of Parliament as a whole, to ensure compliance when making decisions or issuing guidance. Otherwise, those decisions or guidance may be challenged in court.

In addition, government ministers need to bear in mind that although local authorities are a part of government, in relation to certain matters such as the administration of the local authority pension scheme, local authorities have fiduciary duties which, when exercised, may conflict with the policies of central government.

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Case Comment: Sutherland v Her Majesty’s Advocate (Scotland) [2020] UKSC 32 http://www.cqzpie.icu/case-comment-sutherland-v-her-majestys-advocate-scotland-2020-uksc-32/ http://www.cqzpie.icu/case-comment-sutherland-v-her-majestys-advocate-scotland-2020-uksc-32/#respond Tue, 01 Sep 2020 07:54:59 +0000 http://www.cqzpie.icu/?p=21789 In this post, Joanna Clark and Emma Ainsley of CMS discuss the judgment handed down by the UK Supreme Court on 15 July 2020 in a referral from the High Court of Justiciary, the Scottish criminal appeal court, in the matter of?Sutherland v Her Majesty’s Advocate [2020] UKSC 32 concerning the admissibility of evidence obtained by so-called “paedophile hunter” groups in criminal trials.?

On 3 June 2020, the Supreme Court heard this case in which the Director of Public Prosecutions in England and Wales intervened. Since the issues raised relate to issues of compatibility with Convention rights, specifically the ECHR, art 8 right to respect for private life and correspondence, the decision will be relevant to prosecuting authorities across the UK.

Case background

This case concerned the admissibility of evidence in a criminal trial that had been obtained by a “paedophile hunter” group (“a PH group”).

The appellant, Mark Sutherland, began corresponding on Grindr with a member of a PH group, Groom Resisters Scotland, posing as a thirteen year old boy (“the decoy”). The appellant’s first communication with the decoy was to send a sexual image. On receiving the image, the decoy replied “Wow, I’m only 13.” The appellant and the decoy continued to communicate using Grindr and WhatsApp, with the appellant sending further sexual images and sexual messages. The two then arranged to meet at a bus station in Glasgow.

Members of PH groups impersonate children in order to expose people who they consider to be sexual predators, often streaming their in-person encounters online and later reporting their findings to the police. It is estimated that 164 cases using evidence originating from PH groups have been heard in Scotland, with between 80 – 90% of cases reported by PH groups to the police culminating in prosecution. It is estimated by HM Inspectorate of Constabulary in Scotland that almost half of online child sexual offence cases now result from the activities of PH groups. At the time of the hearing before the Supreme Court, 110 cases at various stages of procedure in Scotland had been adjourned in anticipation of this judgment.

At the time of the arranged meeting, members of the PH group met the appellant and livestreamed the encounter on Facebook. Police officers attended during the ongoing confrontation and the PH group subsequently turned the information they had gathered about the appellant over to the police.

In relation to the entire course of his conduct, the appellant was prosecuted for attempted offences under the Sexual Offences (Scotland) Act 2009 (“SO(S)A”), ss 33, 34 and the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005, s 1, including causing an older child to look at a sexual image and communicating indecently with an older child. The appellant objected to the admissibility of the evidence provided by the PH group on the grounds that the covert investigation had (a) proceeded without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 (“RIPSA”), and (b) breached his right to respect for his private life and correspondence under ECHR, art 8. The sheriff repelled these objections and the appellant was convicted. He appealed the conviction to the High Court of Justiciary. The High Court of Justiciary determined that RIPSA had no application in the circumstances, since the decoy had acted on his own initiative and not at the instigation of the police. It referred the ECHR compatibility issues to the Supreme Court.

Whilst a large number of criminal cases have been adjourned pending the outcome of this decision, the use of evidence obtained by PH groups has been considered in a previous Scottish decision, namely Procurator Fiscal, Dundee v P H P [2019] SC DUN 39. In that case, another PH group had set up profiles on the platform SayHi. While the accused in that case (who was cognitively impaired) did not agree to any meeting, the PH group was able to find his address after exchanges of sexual messages and the accused was subsequently charged with attempted contraventions of SO(S)A, ss 34(1), 24(1).

While the sheriff presiding over the P H P case found that the accused’s ECHR, art 8 rights were not engaged, he determined that the evidence in question was nonetheless inadmissible. This was because, in his view, the evidence had been obtained unlawfully, by way of common law fraud, and irregularly. The sheriff voiced concerns over encouraging vigilante groups, pointing out that the police work within a scheme of regulation and inspection and are democratically accountable, going about their work in a way which involves making careful judgments about what lines of enquiry to follow up and which takes account of factors such as cognitive impairment in a suspect. Furthermore, the police do not confront suspects or make arrests in a way that risks public disorder, and they understand that publishing photographs of suspects on the internet poses risks for the administration of justice and might amount to contempt of court.

Issues referred to the Supreme Court

The High Court of Justiciary characterised the issues raised by the Sutherland case as being of general public importance and requested that the hearing be expedited. Two questions were remitted to the Supreme Court under the Criminal Procedure (Scotland) Act 1995, s 288A (which permits compatibility issues in Scottish criminal appeals to be determined by the Supreme Court):

  • Whether, in respect of the type of communications used by the appellant and PH groups, ECHR, art 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for the relevant offences; and
  • The extent to which the obligation on the state, to provide adequate protection for ECHR, art 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime.

ECHR, art 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Since prosecuting authorities and courts are “public authorities” within the meaning of the Human Rights Act 1998, s 6, it is unlawful for them to act in a manner that is incompatible with Convention rights.

Decision

The decision begins with a detailed analysis of ECHR, art 8 and the “two fundamental values” that it protects as identified by Baroness Hale of Richmond in R (Countryside Alliance) v Attorney General [2007] UKHL 52, para 116, namely:

  • the inviolability of the home and personal communications from official snooping, entry and interference without a very good reason”; and
  • the inviolability of … the personal and psychological space within which each individual develops his or her own sense of self and relationships with other people.

The court noted that the first of these two values was not relevant in the present case as the evidence was gathered by a private individual acting on his own behalf, and not by means of surveillance by state authorities or someone acting at the instigation of a state authority. However, the second value was of significance to this case.

Was the appellant’s right to respect for his private life and correspondence interfered with?

The court answered this question in the negative, for two reasons.

Firstly, the court said that the nature of the communications – which were to a person whom the appellant believed to be a child – were not worthy of respect for the purposes of the application of the ECHR.

Secondly, the court said that the appellant had no reasonable expectation of privacy in relation to the communications.

Nature of the communications

The court began by noting the language used in ECHR, art 8(1), i.e. “right to respect for”. In the court’s view, it was implicit within this that the conduct over which protection was claimed by the appellant should be capable of respect within the “scheme of values” that the ECHR exists to protect and promote.

The court referred back to the second value that Baroness Hale had identified in Countryside Alliance, namely “the inviolability of … the personal and psychological space”. This was an aspect of ECHR, art 8 that arose in this case, not in relation to the appellant’s rights, but in relation to the rights of any children who might be the intended recipients of his communications. The court noted that the jurisprudence of the Strasbourg court on ECHR, art 8 had identified that, in this context, ECHR, art 8 placed a special responsibility upon the state to protect children from sexual exploitation by adults.

The court considered a number of authorities in this regard, including X and Y v The Netherlands (App no 8978/80) and KU v Finland (App no 2872/02), in which the Strasbourg court had indicated that ECHR, art 8 placed a positive obligation on states to put in place effective deterrence measures against activities which may pose a threat to fundamental values and essential aspects of the private lives of individuals, particularly children and other vulnerable persons. This obligation extended beyond the creation of appropriate offences to the effectiveness of criminal investigations into those offences.

In this case, it was clear that the statutory offences the appellant had been charged with – which related to direct, sexually motivated communication with a child – were put in place to protect children against interference with “essential aspects of their private lives” (to use the language adopted by the court in KU v Finland). Having put these offences in place, the state was obliged under ECHR, art 8 to enforce them.

In this case, in the absence of any state surveillance, when it came to balancing relevant interests the only two interests to be considered were those of the person engaging in the criminal conduct, and those of the children who were the recipients (or intended recipients) of the communications. Given the nature of the communications, they did not attract protection under ECHR, art 8(1).

The court also referred to ECHR, art 17 (prohibition of the abuse of rights) in support of the conclusions the court had reached. The actions of the appellant were aimed at the destruction or limitation of the rights and freedoms of a child, and those rights and freedoms were the subject of positive obligations on the state under ECHR, art 8. In these circumstances, any legitimate interest the appellant could have under ECHR, art 8 was outweighed by the positive obligations on the state to protect children from sexual exploitation.

The court identified four distinct stages at which the appellant’s conduct was brought to the attention of the public authorities for criminal justice purposes when it might be argued his rights had been interfered with:

  • When the decoy passed the evidence to the police;
  • When the police took investigative action based on that evidence;
  • When the prosecuting authority presented charges and relied upon the evidence at trial; and
  • When the court admitted the evidence and convicted the appellant on the basis of it.

The court indicated that at none of these stages did the appellant have a legitimate interest under the ECHR in preventing the action taken. The communications sent by the appellant constituted criminal offences, so the decoy was entitled to pass evidence in his possession of them to the police. Once the police had this, they were entitled to use it and pass it to the prosecuting authority for use in criminal proceedings against the appellant. The public authorities had responsibility under the ECHR to take effective action to protect children and the information provided by the decoy demonstrated that the appellant represented a risk to children.

No reasonable expectation of privacy

In the context of whether the appellant had a reasonable expectation of privacy, the court began by pointing out that the appellant’s communications had been sent directly to the decoy who was a private individual the appellant believed was a child of 13. Their contents were not, the court said “a matter in relation to which the recipient could be thought to owe the appellant any obligation of confidentiality”.

In addition, there was no prior relationship between the appellant and the recipient from which an expectation of privacy might arise. The appellant contacted the decoy himself. It was entirely foreseeable that a child might well share any “worrying communication” with an adult and the fact that the appellant had urged the decoy to keep their messages private did not establish any relationship of confidentiality between them. The criminal nature of what the appellant was doing was not an aspect of his private life he was entitled to keep private and he could not reasonably expect that messages which were evidence of criminal conduct would not be passed on to the police.

The court did note, with reference to the case of Benedik v Slovenia (App No 62357/14), that there may be different expectations of confidentiality in relation to the use of the internet. The court referred to the fact that different degrees of anonymity might be possible, depending on the forum, and held that whether or not a reasonable expectation of privacy existed in relation to a particular matter was an objective question.

The court recognised that there was a degree of overlap between the issues of the reasonable expectation of privacy, and that of the nature of the appellant’s communications. Although the court found it helpful to examine these two issues separately, it was of the view that the nature of the communications provided further reasons why the appellant would not have had a reasonable expectation of privacy in relation to them.

Other issues addressed by the Supreme Court

The court held that even if there had been an interference with his ECHR, art 8 rights, the appellant would still have faced fundamental difficulties in challenging the High Court’s refusal of his appeal. Firstly, any interference with his ECHR, art 8 rights would have been justified under ECHR, art 8(2) as being in accordance with the law and necessary in a democratic society, as a measure proportionate to promoting the legitimate objectives of the prevention of disorder or crime and the protection of the rights and freedoms of others. Secondly, as the High Court had correctly pointed out, a breach of the appellant’s ECHR, art 8 rights did not necessarily require his conviction to be quashed, as, generally, evidence obtained in breach of ECHR, art 8 may be relied on in criminal proceedings, provided that there is no violation of the right to a fair trial under ECHR, art 6, and no breach of any rules of domestic law regarding the fairness of those proceedings.

Comment

?Counsel for the appellant in this case sought to argue that the acquisition and use of the evidence of the communications between the appellant and the decoy were not “in accordance with the law”, as required by ECHR, art 8(2). However, since the court found there was no interference under art 8(1), the court did not require to address these arguments, or the issues regarding the activities of vigilante groups that were commented upon by the sheriff in the P H P case. It may be that some of those issues may raise ECHR, art 6 issues, however, that was not argued in this case.

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New Judgment: Unwired Planet International Ltd and another) v Huawei Technologies (UK) Co Ltd and another [2020] UKSC 37 http://www.cqzpie.icu/new-judgment-unwired-planet-international-ltd-and-another-v-huawei-technologies-uk-co-ltd-and-another-2020-uksc-37/ http://www.cqzpie.icu/new-judgment-unwired-planet-international-ltd-and-another-v-huawei-technologies-uk-co-ltd-and-another-2020-uksc-37/#comments Wed, 26 Aug 2020 09:00:59 +0000 http://www.cqzpie.icu/?p=21787 (Also Huawei Technologies Co Ltd and another v Conversant Wireless Licensing SáRL [2020] UKSC 37 and ZTE Corporation and another v Conversant Wireless Licensing SáRL [2020] UKSC 37)

On appeal from:?[2019] EWCA Civ 38

 

1.This appeal discusses whether the English court has the power or jurisdiction, or is it a proper exercise of any such power or jurisdiction without the parties’ agreement:

  • to grant an injunction restraining infringement of a UK SEP unless the defendant enters into a global licence under a multinational patent portfolio;
  • to determine the rates/terms for such a licence; and
  • to declare that such rates/terms are FRAND?
  1. If the answer to (1) is “yes”, is England the proper forum for such a claim in the circumstances of the Conversant proceedings?
  2. What is the meaning and effect of the non-discrimination component of the FRAND undertaking and does it mean that materially the same licence terms as offered to Samsung must be offered to Huawei in the circumstances of the Unwired case?
  3. Does the CJEU’s decision in Huawei v ZTE mean that a SEP owner is entitled to seek an injunction restraining infringement of those SEPs in circumstances such as those of the Unwired case?

The cases concern a number of patents, which are declared to be essential to the practice of numerous telecommunications standards, held by the Respondents in both sets of proceedings, who commenced proceedings against the respective Appellants for infringing those patents. The Respondents are under an obligation to make available standard essential patents (“SEPs”) on fair, reasonable and non-discriminatory terms (“FRAND”) terms.

In Unwired, two of Unwired’s patents were found to be valid and essential to the standards, and Unwired obtained an injunction against Huawei for the latter’s infringement of the SEPs. Huawei, with the permission of the first-instance judge, appealed to the Court of Appeal on three grounds, namely Issues (1), (3) and (4). Huawei’s appeal was dismissed and Huawei now appeals to the Supreme Court.

The proceedings in Conversant were brought after the High Court judgment was handed down in Unwired. The defendants in the Conversant proceedings challenged the jurisdiction of the English court, raising issues (1) and (2). The application was dismissed but Huawei and ZTE appealed to the Court of Appeal. The appeal was dismissed and Huawei and ZTE now appeal to the Supreme Court.

Held: the Supreme Court unanimously dismisses both appeals. The full Court gives the judgment, which confirms that the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a global license of a multi-national patent portfolio.

The Court holds that Unwired had not breached the non-discrimination limb of the FRAND undertaking [112]. ETSI’s IPR Policy requires SEP owners, like Unwired, to make licenses available “on fair, reasonable and non-discriminatory… terms and conditions”. This is a single, composite obligation, not three distinct obligations that the licence terms should be fair, and separately, reasonable, and separately, non-discriminatory.

The Court considers Article 102 of the Treaty of the Functioning of the European Union, the facts of the present case and the decisions of the trial judge and the Court of Appeal. It confirms that bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will infringe Article 102. However, the nature of the notice or consultation required will depend on the circumstances of the case: there is no mandatory requirement to follow the protocol set out in Huawei v ZTE. On the facts, what mattered was that Unwired had shown itself to be willing to grant a licence to Huawei on whatever terms the court decided were FRAND. Unwired had not therefore behaved abusively.

 

For judgment, please download here.

For Court’s press summary, please download here.

For a non-PDF version of the judgment, please see here.

To watch the hearing please visit: Supreme Court website:

21 Oct 2019 Morning session Afternoon session
22 Oct 2019 Morning session Afternoon session
23 Oct 2019 Morning session Afternoon session
24 Oct 2019 Morning session Afternoon session

 

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In the Supreme Court W/C 24 Aug 2020 http://www.cqzpie.icu/in-the-supreme-court-wc-27-july-2020/ http://www.cqzpie.icu/in-the-supreme-court-wc-27-july-2020/#respond Mon, 24 Aug 2020 08:41:38 +0000 http://www.cqzpie.icu/?p=21764 On Wednesday 26 Aug 2020, the Supreme Court will hand down judgment in three appeals?Unwired Planet International Ltd and another v Huawei Technologies (UK) Co Ltd and another and ZTE Corporation and another v Conversant Wireless Licensing SARL and?Huawei Technologies Co Ltd and another (Appellants) v Conversant Wireless Licensing SARL. These appeals will consider the power or jurisdiction of the?English courts to make decisions?in a number of patents under the multinational patent portfolio, which are declared to be essential to the practice of numerous telecommunications standards, without the parties’ agreement.

The following Supreme Court judgments remain outstanding:

Keefe (by his litigation friend Eyton) v Hoteles Pinero Canarias SL, heard 7 Mar 2017

Arcadia Petroleum Ltd & Ors v Bosworth & Anor, heard 10-11 Apr 2017

Vedanta Resources Plc & Anor v Lungowe & Ors, heard 15-16 Jan 2019

Test Claimants in the Franked Investment Income Group Litigation & Ors v Commissioners of Inland Revenue, heard 27 June 2019

In the matter of an application by Anthony McIntyre for Judicial Review (Northern Ireland), heard 24 October 2019

Halliburton Company v Chubb Bermuda Insurance Ltd (Formerly known as Ace Bermuda Insurance Ltd), heard 12-13 November 2019

ABC (AP) v Principal Reporter & Anor (Scotland), heard 13- 14 November 2019

In the matter of XY (AP) (Scotland), heard 13- 14 November 2019

R v Hilton (Northern Ireland), heard 2 December 2019

MacDonald & Anor v Cambroe Estates Ltd (Scotland), heard 4 December 2019

The Law Debenture Trust Corporation plc v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) Nos. 2 and 3,?heard 9-12 December 2019

R?(on the application of Pathan) v Secretary of State for the Home Department,?heard 12 December 2019

R V C, heard 27 January 2020

Royal Mencap Society v Tomlinson-Blake, heard 12- 13 February 2020

Shannon v Rampersad & Anor (T/A Clifton House Residential Home), heard 12-13 February?2020

Test Claimants in the Franked Investment Income Group Litigation & Ors v Commissioners of Inland Revenue (1) and (2), heard 18- 20 February 2020

Stoffel & Co v Grondona, heard 5 May 2020

Secretary of State for Health & Ors v Servier Laboratories Ltd & Ors, heard 9 June 2020

Okpabi & Ors v Royal Dutch Shell Plc & Anor, heard 23 June 2020

R (Highbury Poultry Farm Produce Ltd) v CPS, heard 25 June 2020

Asda Stores Ltd v Brierly & Ors, heard 13-14 June 2020

R (Gourlay) v Parole Board, heard 16 July 2020

Alexander Devine Children’s Cancer Trust v Housing Solutions Ltd, heard 20 July 2020

Uber BV & Ors v Aslam & Ors, heard 21-22 July 2020

Takhar v Gracefield Developments Ltd & Ors, heard 23 July 2020

Allykhan v Abdool (Mauritius), heard 23 July 2020.

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New Judgment: Peninsula Securities Ltd v Dunnes Stores (Bangor) Ltd (Northern Ireland) [2020] UKSC 36 http://www.cqzpie.icu/new-judgment-peninsula-securities-ltd-v-dunnes-stores-bangor-ltd-northern-ireland-2020-uksc-36/ http://www.cqzpie.icu/new-judgment-peninsula-securities-ltd-v-dunnes-stores-bangor-ltd-northern-ireland-2020-uksc-36/#respond Wed, 19 Aug 2020 13:42:40 +0000 http://www.cqzpie.icu/?p=21783 The appeal related to a restrictive covenant given by the developer of a shopping centre in a lease that it granted to a retailer over part of the centre. In giving the covenant the developer and later Peninsula each undertook not to allow any substantial shop to be built on the rest of the centre in competition with the Dunnes. Peninsula then argued that the covenant engaged the doctrine of restraint of trade; that it was unreasonable; and that it was therefore unenforceable. The appeal to the Supreme Court concerned whether the covenant engages the doctrine.

The Supreme Court unanimously allowed the appeal and dismissed Peninsula’s common law claim. Lord Wilson observed that the court’s duty in this appeal was to examine the decision in Esso in the light of questions of logic and public policy and to ask whether the surrender of a pre-existing freedom was an acceptable criterion for engagement of the doctrine.

The Court held that it has long been accepted and normal for the grant of a lease in part of a shopping centre to include a restrictive covenant on the part of the landlord in relation to the use of other parts of the centre. It followed that the covenant in this case has at no time engaged the doctrine. Peninsula sought an alternative remedy under the Property (Northern Ireland) Order 1978, which gives the Lands Tribunal or the High Court the power to make an order modifying or extinguishing the covenant if it constitutes an impediment to the enjoyment of land. The Court observed that that would be a more satisfactory vehicle for resolution of the issues in this case and so Peninsula’s claim under the Order should now proceed to be heard.

For judgment, please download: Judgment

For Court’s press summary, please download:?Press summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website: 28 January morning and afternoon session and 29 January morning session

To watch the judgment summary, please visit: Supreme Court website:?19 August 2020

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New Judgment: Commissioners for HMRC v Parry & Ors [2020] UKSC 35 http://www.cqzpie.icu/new-judgment-commissioners-for-hmrc-v-parry-ors-2020-uksc-35/ http://www.cqzpie.icu/new-judgment-commissioners-for-hmrc-v-parry-ors-2020-uksc-35/#respond Wed, 19 Aug 2020 13:22:35 +0000 http://www.cqzpie.icu/?p=21780 This appeal was about whether the pension scheme transfer by the late Mrs Staveley, and her omission to take income benefits which were then payable, constituted, or are to be treated as constituting, for the purposes of the Inheritance Tax 1984 a “disposition” which is a “transfer of value” in favour of her sons, who were to be the beneficiaries of the death benefit.

By a majority, the Supreme Court partially allowed the appeal, holding that the omission gave rise to a charge to inheritance tax, but the transfer did not. It held that?inheritance tax is chargeable on the value transferred by a “disposition” which is a “transfer of value” under the IHTA. Section 3(3) IHTA extends the meaning of “disposition” to include deliberate omissions by which the disponor’s estate is diminished and the value of another person’s estate is increased. Section 10(1) IHTA provides that a disposition that “was not intended, and was not made in a transaction intended, to confer any gratuitous benefit on any person” is not a “transfer of value” and so does not give rise to a charge to inheritance tax. Section 10(3) IHTA provides that a “transaction” for section 10(1) purposes “includes a series of transactions and any associated operations.

For judgment, please download: Judgment

For Court’s press summary, please download:?Press summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website: 31 October 2020 morning and afternoon session

To watch the judgment summary, please visit: Supreme Court website:?19 August 2020

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Case Comment: R v Adams (Northern Ireland) [2020] UKSC 19 http://www.cqzpie.icu/case-comment-r-v-adams-northern-ireland-2020-uksc-19/ http://www.cqzpie.icu/case-comment-r-v-adams-northern-ireland-2020-uksc-19/#respond Tue, 18 Aug 2020 12:13:27 +0000 http://www.cqzpie.icu/?p=21773 Introductionni-ghralaigh-b-sept-2018-1

On 13 May 2020, the Supreme Court handed down judgment in the case of R v Adams (Appellant) (Northern Ireland) [2020] UKSC 19. The case, on appeal from the judgment of the Court of Appeal of Northern Ireland [2018] NICA 8, concerned the challenge by Gerry Adams, former leader of Sinn Féin, to his convictions for attempted escape from the Maze Prison (also known as Long Kesh) in Belfast in the early 1970s. The issue in the case was whether the order pursuant to which Mr Adams was interned in the Maze was valid, given that it had been made by the Minister of State for Northern Ireland and had not been considered personally by the Secretary of State for Northern Ireland himself. The Supreme Court held that it was not valid, that Mr Adams had therefore not been detained lawfully, and consequently, that he had been wrongly convicted of attempting to escape from lawful custody. The Supreme Court duly quashed Mr Adams’ convictions.

The unanimous judgment was given by Lord Kerr (former Lord Chief Justice of Northern Ireland), with whom Lady Black, Lord Lloyd-Jones, Lord Kitchin and Lord Burnett agreed.

Facts

Since the partition of Ireland in 1921, the British Government has introduced successive pieces of legislation, authorising the detention without trial of persons in Northern Ireland, commonly referred to as “internment”. Internment was last introduced on 9 August 1971, when British Army officers arrested over 340 people in violent dawn raids across the Province in an operation codenamed “Operation Demetrius”, now widely discredited as having relied on flawed and dated intelligence. Many of those interned were subjected to serious violence, and some to techniques now recognised as torture. By the time internment ended in December 1975, an estimated over 2,100 people had been interned, overwhelmingly from the nationalist / Catholic community. One of those was Gerry Adams, later to become the president of Sinn Féin, who was interned without trial in 1973.

The internment procedure in 1973 operated through the issuing of interim custody orders (“ICOs”), pursuant to article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (“the 1972 Order”), which authorised a person’s arrest and initial detention. An ICO was made in respect of Gerry Adams on 21 July 1973, resulting in his arrest and detention in the Maze. Two unsuccessful attempts to escape from prison, in December 1973 and March 1974, led to Mr Adams being convicted in 1975 of attempting to escape from lawful custody, for which he was sentenced to four and a half years’ imprisonment.

In these proceedings, Mr Adams challenged the validity of the 1973 ICO. He was prompted to do so by the release of official Government papers under “the 30 year rule”, pursuant to which certain Government records become available to the public 30 years after their creation. The papers revealed that the British Government had been aware of a procedural irregularity in relation to Mr Adams’ detention and that of hundreds of other internees. In a legal opinion, written in 1974, concerning Mr Adams’ 1975 prosecution, JBE Hutton QC (then legal adviser to the Attorney General, later Lord Hutton and Lord Chief Justice of Northern Ireland) questioned the premise of the prosecution. The advice suggested that it was a condition precedent to the making of a valid ICO that the Secretary of State should have considered personally whether he believed that the person to be detained was involved in terrorism. However, the ICO concerning Mr Adams had been signed by a Minister of State in the Northern Ireland Office, not by the then Secretary of State for Northern Ireland, Willie Whitelaw, and there was no evidence that the Secretary of State had ever personally considered his case.

Mr Adams argued that his detention on the basis of the 1973 ICO was therefore unlawful, and that his convictions for attempted escape from unlawful detention (his only ever convictions, Troubles-related or otherwise) should be quashed. The Court of Appeal in Northern Ireland dismissed his appeal. Mr Adams appealed to the Supreme Court against the Court of Appeal’s judgment.

The certified question

?The question certified was whether the making of an ICO under Article 4 of the 1972 Order:

  1. required the personal consideration by the Secretary of State of the case of the person subject to the order; or
  2. whether the Carltona principle operated to permit the making of such an Order by a Minister of State.
Judgment

The Supreme Court ruled unanimously that the making of an ICO pursuant to the 1972 Order required the personal consideration by the Secretary of State of the case of the person subject to the Order.

It did so on the basis of the express wording of Article 4(1) of the 1972 Order which provided that the statutory power to make an ICO arose “where it appears to the Secretary of State” that a person was suspected of being involved in terrorism. The wording of that provision was to be contrasted with the language of Article 4(2), which provided that “an interim custody order of the Secretary of State shall be signed by a Secretary of State, Minister of State or Under Secretary of State”. The Court held that the clear language of the provisions demonstrated a segregation of roles as between the making and the signing of an ICO, with the former being reserved to the Secretary of State exclusively. The use of the possessive “of the Secretary of State” in Article 4(2) further made clear that the ICO was personal to the Secretary of State.

In so finding, the Supreme Court rejected the application to the 1972 Order of the “Carltona principle”, so named after the Court of Appeal judgment in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560. That provides (at p.563) that the duties imposed upon a Secretary of State and the powers conferred on a Secretary of State by Statute may be exercised under their authority by responsible officials in the Secretary of State’s department.

The Supreme Court found that a true construction of the 1972 Order demonstrated that it was the intention of Parliament to require the Secretary of State personally to take the “momentous” decision to make an ICO against an individual [38]. It was the Court’s view that such a “crucial decision”, capable of leading to the deprivation of a person’s liberty, without trial, for “potentially a limitless period” [38], should be made by the Secretary of State alone. The Supreme Court rejected the contention that that would have placed an excessive or undue burden on the Secretary of State for Northern Ireland in 1973, when the ICO was made in relation to Mr Adams, having regard inter alia to the fact that the subsequent Secretary of State for Northern Ireland from 1974 to 1975, Merlyn Rees, had made all ICOs personally ([19] and [39]).

In reaching its conclusion, the Supreme Court examined the nature and application of the?Carltona?principle, with regard to the case law relied upon by the Parties. The Court took the view that whether the Carltona principle should be deemed to apply to a particular statutory provision “should be approached as a matter of textual analysis”, having regard to a number of factors, notably:

  1. the framework of the legislation;
  2. the language of pertinent provisions in the legislation; and
  3. the importance of the subject matter, having regard to the gravity of the consequences flowing from the exercise of the power: the more serious the consequences, the more likely it is that Parliament intended the power to be exercised by the Secretary of State personally (see [26]).

Lord Kerr opined that the above textual analysis concerning the Carltona principle should be performed unencumbered by the application of a presumption” [26]. Indeed, the Supreme Court refused to rule at all whether there exists a presumption of general application that the Carltona principle applies to statutory provisions. The Court held that it was

“unnecessary for the purposes of the present appeal to reach a firm conclusion on the question whether it is now established that there is a presumption that Parliament should be taken to have intended that the Carltona principle should apply” [25].

Lord Kerr premised that refusal inter alia on his determination that, on the facts of this particular case, even if a presumption were found to have existed, it would have been displaced by the clear statutory language of Article 4 of the 1972 Order [26].

Discussion

The judgment has significant ramifications beyond Mr Adams’ case. It adds further contention to what was already a controversial use of power by the British Government in Northern Ireland, predominantly against the minority nationalist / Catholic community, widely perceived as having fanned the flames of violence in the Province for years thereafter. It calls into direct question the lawfulness of the internment and convictions of hundreds of individuals interned in Northern Ireland in the 1970s, many of whom have already begun proceedings to challenge the lawfulness of their own detention.

It also has ramifications beyond the context of the Troubles. It leaves open to potential challenge any other “momentous” decisions taken by junior ministers pursuant to different legislative provisions, which might similarly be found retroactively by the Courts to be of no legal effect, for the fact that they were not personally taken by a Secretary of State. That has led to strident criticism of the five eminent Law Lords for purportedly misunderstanding in their judgment the fundamentals of the way the Government works in practice, through the delegation of decisions and duties by Secretaries of State to junior ministers. It has been asserted that the judgment now throws that system into disarray. There have been calls for Parliament to respond to the judgment by placing the Carltona principle on a general statutory footing – and indeed for Parliament to legislate to retroactively validate all 1970s ICOs, to prevent other former internees being able to challenge the lawfulness of their detention.

The strength and vehemence of those critiques is difficult to square with the proposition for which the judgment stands: that where the Government is taking “momentous” decisions to deprive individuals of the most fundamental of rights, such decisions should be subject to enhanced scrutiny and care, and given the most careful consideration possible by those ultimately responsible to Parliament for them. In the times in which we live, and with the benefit of hindsight as to the injustices caused by certain such decisions in the recent and not so distant past, it is surprising that such a proposition should be perceived as controversial.

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New Judgment: Shagang Shipping Company Ltd (in liquidation) v HNA Group Company Ltd [2020] UKSC 34 http://www.cqzpie.icu/new-judgment-shagang-shipping-company-ltd-in-liquidation-v-hna-group-company-ltd-2020-uksc-34/ http://www.cqzpie.icu/new-judgment-shagang-shipping-company-ltd-in-liquidation-v-hna-group-company-ltd-2020-uksc-34/#respond Wed, 05 Aug 2020 09:50:51 +0000 http://www.cqzpie.icu/?p=21770 On appeal from: [2018] EWCA Civ 1732

This appeal arose out of a claim by the appellant under a guarantee of a contract, to charter a vessel which was met with a defence from the respondent that the contract was procured by bribery and that the guarantee was therefore unenforceable. The bribery allegation was based on evidence of confessions that the appellant alleged were obtained by torture and therefore inadmissible.

At trial, Knowles J gave judgment in favour of the appellant, finding that there was no bribery and that he could not rule out torture. On appeal, the Court of Appeal held that the judge’s decision was unsustainable and sent the case back for reconsideration by a different judge. The appellant appealed to the Supreme Court seeking restoration of the judge’s judgment.

The issue on the appeal was whether the Court of Appeal’s criticisms were justified and warranted remitting the case for fresh determination. The Supreme Court unanimously allowed the appeal and restored the judgment in favour of the appellant. The Court held, inter alia, that the Court of Appeal’s approach was logical; it could not be said that the conclusion on bribery was unreasonable or unsustainable; and the Court of Appeal’s failure to consider the evidence systematically was not an error of law.

For judgment, please download:?Judgment

For Court’s press summary, please download:?Press summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website: 15 June 2020 morning and afternoon session and 16 June 2020 morning and afternoon session

To watch the judgment summary, please visit: Supreme Court website: 5 August 2020

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New Judgment: Lehtimaki & Ors v Cooper [2020] UKSC 33 http://www.cqzpie.icu/new-judgment-lehtimaki-ors-v-cooper-2020-uksc-33/ http://www.cqzpie.icu/new-judgment-lehtimaki-ors-v-cooper-2020-uksc-33/#respond Wed, 29 Jul 2020 09:30:14 +0000 http://www.cqzpie.icu/?p=21767 On appeal from: [2018] EWCA Civ 1605

The Children’s Investment Fund Foundation is a charitable company with more than $4bn in assets helping children in developing countries. It was founded by Sir Christopher Hohn and Ms Jamie Cooper in 2002, but it became difficult to manage when their marriage broke down. These proceedings stem from the steps they took to resolve those difficulties. Specifically, they agreed that in exchange for a grant of $360 million to Big Win Philanthropy, a charity founded by Ms Cooper, she would resign as a member and trustee of CIFF.

CIFF’s members had to approve this grant. CIFF has only three members, two of whom, namely Sir Christopher and Ms Cooper had to recuse themselves from the vote. Thus, only Dr Marko Lehtimaki can vote on the proposal.

The Chancellor of the High Court held that the grant would be in CIFF’s best interests and ordered Dr Lehtimaki to vote for the resolution approving the grant. Dr Lehtimaki appealed against that order, and the Court of Appeal allowed the appeal holding that, in the absence of a breach of fiduciary duty, the court could not direct Dr Lehtimaki on how he should exercise his powers. Ms Cooper appealed to the Supreme Court and sought an order requiring Dr Lehtimaki to vote in favour of the resolution.

The Supreme Court allowed the appeal and made an order requiring Dr Lehtimaki to vote in favour of the resolution on the basis that Dr Lehtimaki is a fiduciary when acting as a member of CIFF, the Court can direct Dr Lehtimaki to vote in favour of the resolution and s 217 of the Companies Act 2006 does not prevent the court from directing a member to vote.

For judgment, please download:?Judgment

For Court’s press summary, please download:?Press Summary

For a non-PDF version of the judgment, please visit: BAILLI

To watch the hearing please visit: Supreme Court website: 14 June 2020 morning and afternoon session and 15 January 2020 morning and afternoon session.

To watch the judgment summary, please visit: Supreme Court website:?29 July 2020 judgment summary

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