In Practice | Law Gazette

Immigration

jmaher — Tue, 18 Jun 2013 10:05:13 +0000

Asylum seeker – Detention – Claimant being detained under non-suspensive appeals process

R (on the application of JB (Jamaica) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 12 June 2013

The claimant was a Jamaican national who came to the UK and claimed asylum on the grounds of his risk of persecution in Jamaica on account of him being a homosexual. The claimant was detained under the non-suspensive appeals process and his application for asylum refused. The claimant applied for judicial review of the defendant secretary of state's decision to include Jamaica in the designated list of countries contained in section 94(4) of the Nationality, Immigration and Asylum Act 2002 and the decision to detain him. The judge dismissed the claimant's application. The Court of Appeal, Civil Division, allowed the claimant's appeal on the basis that the secretary of state had not been entitled to conclude that there was in general in Jamaica no serious risk of persecution of persons entitled to reside there, nor could she have been satisfied at the time of the claimant's detention that a fair and sustainable determination of his claim could have been made within a period of two weeks.

Appeal

jmaher — Tue, 18 Jun 2013 09:40:29 +0000

Practice – Family proceedings – Ancillary relief

Prest v Petrodel Resources Ltd and others: Supreme Court: 12 June 2013

The wife brought ancillary relief proceedings following a divorce between her and the husband and joined as additional respondents a number of companies belonging to a group which the judge found to be wholly owned and controlled by the husband. One of the companies was the legal owner of five residential properties in the UK and another company was the legal owner of two more residential properties in the UK. The judge concluded that, in applications for financial relief ancillary to a divorce, a wider jurisdiction to pierce the corporate veil was available under section 24 of the Matrimonial Causes Act 1973 (the 1973 act) and ordered the husband to procure the transfer of the properties to the wife in partial satisfaction of a lump sum order. The companies appealed against the orders made against them. The Court of Appeal considered that the judge ought not to have made the order. The wife appealed against that decision to the Supreme Court. The Supreme Court, in allowing the appeal, held that the piercing of the corporate veil could not be justified in the instant case by reference to any general principle of law and that it was impossible to say that a special and wider principle applied in matrimonial proceedings by virtue of section 24(1)(a) of the 1973 act. However, on the evidence, the husband had, at all relevant times, been the beneficial owner of the properties which therefore were held on resultant trust for him. That was the only basis on which the companies could be ordered to convey the properties to the wife.

Pensions

jmaher — Mon, 17 Jun 2013 15:20:03 +0000

Construction of pension scheme – Claimant being principal employer of occupational pension scheme – Defendants being trustees of pension scheme – Construction of rules governing scheme

Royal Mail Group Ltd v Evans and others: Chancery Division: 11 June 2013

The Chancery Division agreed with Royal Mail and held that the definitive trust deed and rules, which governed a pension plan, should be construed to mean that the relevant members continued to be entitled to have their pensions increased (in payment or deferment) by the increases which would be applicable as a result of the rules applicable under Section A or B of the Post Office Pension Plan (POPP), as the case might be, as they stood as at 31 March 2001. Accordingly, none of the relevant members of the scheme had an entitlement under POPP to have their pension increase in line with the retail prices index.

Bribery Act: ‘facilitation payments’

jmaher — Mon, 17 Jun 2013 12:19:54 +0000

The ‘Star Chamber’, a somewhat sinister-sounding governmental group tasked with reducing bureaucracy, is to carry out a review of the Bribery Act 2010 with a view to examining facilitation payments. At present, the act draws no distinction between facilitation payments or other payments, such that any payment (facilitating or otherwise) is capable of being caught as a bribe.

Changes to public law

jmaher — Fri, 14 Jun 2013 09:43:07 +0000

The pressures on the public purse as much as those of the present Conservative government have brought about yet more radical changes to public law proceedings. To echo the words of Sir James Munby, the president of the Family Division: ‘The family justice system is undergoing the most radical reforms in a lifetime. The process of reform is little short of revolutionary.’ For those on the coalface, these changes can of course be both exhausting and exhilarating. At every level of the family justice system there is a sense that the goalposts have been moved.

Freedom of information: limits of privilege

jmaher — Thu, 13 Jun 2013 16:26:18 +0000

One of the key recommendations of the House of Commons Justice Select Committee in its July 2012 report on the Freedom of Information Act 2000 (FoI) was the introduction of a new exemption for academic research. The government accepted this recommendation in its official response late last year.

Defamation on social media

jmaher — Thu, 13 Jun 2013 13:40:03 +0000

On 24 May Mr Justice Tugendhat handed down the judgment in McAlpine v Bercow [2013] EWHC 1342 (QB), finding that Mrs Bercow’s tweet carried a defamatory meaning. Following the judgment it was announced that Bercow had accepted an earlier settlement offer, saying that ‘today’s ruling should be seen as a warning to all social media users’.

Trademarks in toys and games – part two

jmaher — Thu, 13 Jun 2013 11:28:51 +0000

A recent High Court judgment concerning the Scrabble ‘tile’ trademark highlights the tension between trademarks and the functional elements of toys and games. Below is part two of a two-part summary of a few key decisions in this area; claims with varying degrees of success. Part one was published on 27 May (see tinyurl.com/pcd4kk2).

Hasbro v 123 Nährmittel [2011] EWHC 199 (Ch)

Breach of contract

jmaher — Tue, 11 Jun 2013 09:43:43 +0000

Licence agreement being made between publishing company (Bright Star) and defendant permitting defendant to re-package Reader's Digest book edition of 'Wildlife of Britain'

Morse v Eaglemoss Publications Ltd: Chancery Division: 7 June 2013

The claimant and defendant were publishing companies. The claimant was the chief executive officer of another publishing company, Bright Star. The defendant and Bright Star entered into a licence agreement, which permitted the defendant to re-package the Reader's Digest book edition of 'Wildlife of Britain'. The claimant, as assignee of Bright Star, contended that he was entitled to a share in the royalties under the licence agreement. He brought a claim against the defendant for breach of contract. The Chancery Division held that, on the correct construction of the November licence, the claimant was only entitled to a proportion of royalties in the strict sense.

Appeal

jmaher — Tue, 11 Jun 2013 09:29:14 +0000

Passing off – Get-up of goods – Confusion

Lumos Skincare Ltd v Sweet Squared Ltd and other companies: Court of Appeal, Civil Division: 6 June 2013

The claimant sold skincare products using the word mark 'LUMOS'. The defendants launched nail care products under the same mark. The parties' products reached professional and retail customers and the claimant issued passing off proceedings. The Court of Appeal, Civil Division, held that the judge had been wrong to dismiss the action. The judge had misdirected himself when asking the question whether the relevant persons for the purposes of establishing confusion were the claimant's trade customers. The evidence had justified the inference that a significant number of the claimant's actual and potential customers would be likely to be misled by the defendants' use of the LUMOS mark into thinking that the defendants' nail care products were products of or associated with the claimant.