Law reports

Copyright

jmaher — Mon, 20 May 2013 10:24:19 +0000

Infringement – Photograph

Sheldon v Daybrook House Promotions Ltd: Patents County Court: 8 May 2013

The claimant, a professional photographer, brought a claim for infringement of copyright against the defendant for the alleged unlicensed use of a photograph taken by the claimant of American pop star, 'Ke$ha' and the group 'LMFAO'. A preliminary issue arose as to the level of damages likely to be awarded if the claim succeeded. The claimant contended that it would be more than £5,000 as so should be dealt with in the multi-track procedure of the Patents County Court (PCC) and not the small claims track. The PCC held that, given the renown of the artists and the exclusivity of access in respect of the photographs, the correct measure of damages was £5,682.37.

Patent

jmaher — Mon, 20 May 2013 09:44:26 +0000

Petition for revocation – Obviousness

Phil & Ted's Most Excellent Buggy Company Ltd v TFK Trends for Kids GMBH and others: Patents County Court: 8 May 2013

The Patents County Court considered a dispute between two sellers of buggies used to move young children. The claimant commenced proceedings for unjustified threats and a claim for revocation in the ground that the defendant's patent was invalid. The court considered, among other things, three related patents. The court held that the defendant's patent was invalid for obviousness, against an earlier Chinese patent.

Criminal law

jmaher — Thu, 16 May 2013 13:49:17 +0000

Defendant appealing – Whether judge erring in admitting surveillance evidence at trial

R v Turner: Court of Appeal, Criminal Division: 8 May 2013

The defendant had been convicted of the murder of his girlfriend after the use of covert surveillance provided evidence of significant admissions made by the defendant of his responsibility for her death. He was subsequently sentenced to life imprisonment with a minimum term of 16 years. He appealed against conviction and sentence. The Court of Appeal, Criminal Division dismissed both appeals rejecting the defendant's submissions that the covert surveillance evidence should not have been admitted into evidence at the trial and that the minimum term of the sentence had been imposed unjustifiably.

Libel and slander

jmaher — Tue, 14 May 2013 09:41:42 +0000

Claimant seeking determination on meaning of words complained of as preliminary issue

Lord McAlpine of West Green v Bercow: Queen's Bench Division (Mr Justice Tugendhat): 25 April 2013

In the course of libel proceedings, Lord McAlpine sought, as a preliminary issue, the determination on the meaning of certain words tweeted by the defendant. The Queen’s Bench Division held that the overriding objective required that the actual meaning of the words complained of should be determined at as early a stage in the litigation as was practical. Accordingly, it ordered the trial of a preliminary issue on the actual meaning of the tweet and whether those words had been defamatory.

Appeal

jmaher — Tue, 14 May 2013 09:31:19 +0000

Defendants being convicted of misconduct in public office offences – Defendants appealing

R v Cosford and others: Court of Appeal, Criminal Division: 16 April 2013

The defendants were employed as either a nurse or prison/health officer in a prison. They had all been convicted of misconduct offences for activities undertaken during their course of employment involving supplying mobile telephones to a prisoner. They appealed against conviction contending that they had not held a public office by virtue of their employment. The Court of Appeal, Criminal Division dismissed the appeals and held that the duties undertaken in their employment amply fulfilled the requirements of a public office.

Employment

jmaher — Thu, 09 May 2013 11:08:33 +0000

Admission – Liability – Withdrawal

Berg v Blackburn Rovers Football Club & Athletic plc: Chancery Division, Manchester District Registry: 29 April 2013

The Chancery Division dismissed an application by the defendant Blackburn Rovers Football Club to withdraw an admission by which it had admitted liability to pay £2.25m claimed by the claimant to be due to him following termination of his contract of employment as club manager. The court gave guidance on the correct way to approach such an application and held that neither of the club's asserted defences were realistically arguable.

Contempt of court

jmaher — Tue, 07 May 2013 09:36:00 +0000

Committal – Breach of injunction – Claimants publishing photographs on Facebook and Twitter in breach of injunction

Attorney general v Harkins; Attorney general v Liddle: Queen's Bench Division: 26 April 2013

The defendants had published on Facebook and Twitter photographs of two individuals who had been convicted of murder when they were eleven-years-old in breach of an injunction against the world at large. The attorney general sought their committal for contempt. The defendants admitted the breaches. The Queen’s Bench Division considered the very serious aggravating factors and sentenced them to imprisonment for nine months, suspended for fifteen months.

Tax

jmaher — Thu, 02 May 2013 10:35:22 +0000

Appeal out of time – Correct approach

O'Flaherty v Revenue and Customs Commissioners: Upper Tribunal (Tax and Chancery Chamber): 4 April 2013

The Upper Tribunal (Tax and Chancery Chamber) (the tribunal) allowed an appeal by the taxpayer proprietor of a pub and hotel against a decision by the First-tier Tribunal (Tax Chamber) (the FTT) to refuse him permission to appeal out of time. The tribunal decided that the FTT had erred in the correct approach to be adopted in relation to such applications. Accordingly, the matter was remitted to a new panel of the FTT for the parties to present their respective cases afresh.

Trademark

jmaher — Mon, 29 Apr 2013 10:41:42 +0000

European Community – Infringement of trademark – Damages for infringement of trademark

32Red plc v WHG (International) Ltd and other companies: Chancery Division: 12 April 2013

In earlier proceedings, the claimant company successfully brought a claim against the defendants for the infringement of its trademark '32Red'. In a further judgment, the Chancery Division awarded the claimant damages of £150,000.

Costs

jmaher — Mon, 29 Apr 2013 09:21:06 +0000

Costs – Third party – Liability of third party

Flatman v Germany; Weddall v Barchester Health Care Ltd (Law Society intervening): Court of Appeal, Civil Division: 10 April 2013

The Court of Appeal, Civil Division, held that a judge had erred in finding that the mere payment of disbursements by solicitors on behalf of their client incurred a potential liability to an adverse costs order. The judge had been wrong to find that funding disbursements alone was sufficient to justify his conclusion that the solicitors had stepped outside the 'normal role' of a solicitor so as to attract the risk of a third-party costs order.

Sentencing

jmaher — Thu, 25 Apr 2013 17:29:04 +0000

Imprisonment – Length of sentence – Defendants pleading guilty to number of terrorism offence

R v Khan and others: Court of Appeal, Criminal Division: 16 April 2013

The Court of Appeal, Criminal Division, ruled on a number of appeals against sentence following the defendants pleading guilty to terrorism offences. In all but one of the appeals, the sentences were reduced.

Jury

jmaher — Tue, 23 Apr 2013 10:23:09 +0000

Discharge of jury – Apparent bias – Forced labour – Conspiracy to hold a person in servitude

R v C and others: Court of Appeal, Criminal Division: 28 March 2013

The defendants were all members of a travelling community. They were convicted of offences including forced labour and conspiracy to hold a person in servitude. The issue on appeal was whether the judge had erred in failing to discharge the jury following a letter from a juror indicating that members of the jury were biased against travellers. The Court of Appeal, Criminal Division, in dismissing the appeals held that in the context of alleged jury bias, there was no reason to doubt the safety of the guilty verdicts returned by the jury.

Immigration

jmaher — Thu, 18 Apr 2013 11:52:23 +0000

Rules – Amendment being made – Immigration Rules imposing pre-entry English language test for foreign spouses and partners of British citizens or persons settled in UK

R (on the application of Bibi and another v Secretary of State for the Home Department (Liberty and Joint Council for the Welfare of Immigrants, intervening): Court of Appeal, Civil Division: 12 April 2013

The claimants were both foreign nationals who were married to British citizens. They applied for judicial review of an amendment to rule 281 of the Immigration Rules HC 395 which required a foreign spouse or partner of a British citizen or person settled in the UK to produce a test certificate of knowledge of the English language to a prescribed standard prior to entering the UK. The Court of Appeal, Civil Division, dismissed the claimants' appeal as the amended rule did not contravene any requirement of the European Convention on Human Rights or of domestic law.

Extradition

jmaher — Thu, 18 Apr 2013 09:38:06 +0000

Appeal – Respondent judicial authority requesting appellant's extradition to serve remainder of sentence following various offences

Neuman v Circuit Court of Katowice, Poland: Queen's Bench Division, Administrative Court: 15 February 2013

Following the issue of a European Arrest Warrant by the respondent judicial authority in respect of the appellant, a district judge ordered his return to serve the balance of sentences totalling two years which had been imposed on him for non-residential burglary and robbery. The Administrative Court, in allowing the appellant's appeal against the order, held that, in all the circumstances, it would be disproportionate to return the appellant to Poland. If the warrant had been issued within a reasonable time it would have been virtually impossible for the appeal to have succeeded. However, the lapse of time had made all the difference when coupled with the short period of the sentence that remained to be served.

Evidence

jmaher — Mon, 15 Apr 2013 09:52:05 +0000

Admissibility – Evidence of actual confusion – Claimant companies commencing proceedings against defendant companies for trademark infringement

Interflora Inc and another company v Marks and Spencer plc: Court of Appeal, Civil Division: 5 April 2013

The Court of Appeal, Civil Division, in allowing the defendant Marks & Spencer's appeal against the decision to allow the claimants Interflora to adduce survey evidence, held that the judge had conducted a flawed analysis of the nature of the application, the quality of the raw data that supported the witness statements, and ultimately applied too lax a test.

Costs

jmaher — Wed, 10 Apr 2013 16:01:35 +0000

Criminal law – Order to pay – Defendant failing to provide interpreter at rescheduled time

R v Applied Language Solutions Ltd: Court of Appeal, Criminal Division: 25 March 2013

The defendant company had been ordered to pay a third-party costs order after it had failed to provide an interpreter at a sentencing hearing in a Crown Court. The Court of Appeal, Criminal Division allowed the defendant’s appeal against the order in circumstances where it was held that the failure to provide an interpreter had been an isolated failure and had not amounted to serious misconduct. The Court also provided guidance on circumstances where misconduct would be found.

Judicial review

jmaher — Tue, 09 Apr 2013 10:25:14 +0000

Public authority – Claimant religious organisation seeking to place advert bearing anti-gay message on London buses

Core Issues Trust v Transport for London: Queen's Bench Division, Administrative Court (London): 22 March 2013

The claimant religious trust had sought to take out an advertisement on the side of London buses, in which it made comments opposing a pro-gay rights advert made by the group Stonewall. The defendant, Transport for London (TfL), refused to permit the claimant's advert to be used on buses. The claimant sought judicial review of that decision. In dismissing the claimant's application, the Administrative Court held that although TfL applied its advertising policy inconsistently, its decision had not been irrational and had not infringed the claimant's rights under the European Convention on Human Rights.

Immigration

jmaher — Tue, 09 Apr 2013 09:49:32 +0000

Deportation – Decision to deport – Claimant being regarded as high-risk terrorist

Othman (aka Abu Qatada) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 27 March 2013

The Court of Appeal, Civil Division, upheld a decision of the Special Immigration Appeals Commission which had allowed the appeal of the appellant, Abu Qatada, against the secretary of state's decision to refuse to revoke a deportation order. The SIAC had been entitled to find that, if the appellant was returned to Jordan to be retried for terrorist offences, then, despite changes to the Jordanian law, there was a real risk that the statements obtained from former co-defendants by way of torture would be admitted as probative of the appellant's guilt at his retrial.

Copyright

jmaher — Thu, 04 Apr 2013 15:44:06 +0000

Owner – Rights – Performance rights and sound recordings

Henderson v All Around the World Recordings Ltd: Patents County Court: 28 March 2013

The claimant was a singer, songwriter and musician. She alleged that the defendant recording company had infringed, amongst other things, her performer's rights by its release of a song she had composed called 'Heartbroken'. The Patents County Court held that the defendant had infringed H's performer's rights by copying the recording of her performance and issuing copies of the recording to the public.

Tax

jmaher — Tue, 02 Apr 2013 10:03:39 +0000

Capital allowances – Machinery or plant – Films – Expenditure on production of film

Re Alchemist (Devil's Gate) Film Partnership: First-tier Tribunal (Tax Chamber): 15 March 2013

The First-tier Tribunal (Tax Chamber) (the FTT) dismissed the appeal by Alchemist (Devil's Gate) Film Partnership against the amendment by the Revenue and Customs Commissioners to the partnership's tax return which had shown losses of £1,920,259, comprising £1,223,132 by way of deferred cast and crew amounts in respect of the production of a film called 'Devil's Gate'. The effect of that amendment was to reduce the partnership losses to £597,300, the Revenue taking the view that the partnership had been under no obligation to make any payment in respect of the deferred cast and crew amounts to any of the cast and crew individuals.

The FTT upheld the Revenue's decision that the disputed amount of £1,223,132, representing the aggregate of the deferred cast and crew amounts, had not been 'capital expenditure' by the partnership on the production of the film for the purposes of section 48 of the Finance (No. 2) Act 1997.

Libel

jmaher — Tue, 02 Apr 2013 09:45:50 +0000

Justification – Specific examples of wider allegations which are justified on facts

Rothschild v Associated Newspapers Ltd: Court of Appeal, Civil Division: 19 March 2013

The claimant, a well-known banker and businessman, had issued proceedings against the defendant publisher regarding a newspaper article which, he claimed, had been libellous of him. His claim was dismissed as the judge found that the defence of justification applied. The Court of Appeal, Civil Division, in dismissing the claimant's appeal, found that the justification defence did apply. In reaching its conclusion, the court discussed whether there was need for a fifth principle, specifically to be applied in 'exemplar' cases, governing when a plea of justification could succeed in relation to a general allegation.

Copyright

jmaher — Tue, 26 Mar 2013 11:07:43 +0000

Claimant television broadcasting companies in main proceedings commencing proceedings against defendant television production company

ITV Broadcasting Ltd and other companies v TVCatchup Ltd: Court of Justice of the European Union (Fourth Chamber): 7 March 2013

The Court of Justice of the European Union made a preliminary ruling concerning the interpretation of article 3(1) of Directive (EC) 2001/29 of the European Parliament and of the Council of 22 May 2001 (on the harmonisation of certain aspects of copyright and related rights in the information society). The request had been made in proceedings between, on the one hand, ITV Broadcasting Ltd, ITV 2 Ltd, ITV Digital Channels Ltd, Channel 4 Television Corporation, 4 Ventures Ltd, Channel 5 Broadcasting Ltd and ITV Studios Ltd and, on the other, TVCatchup Ltd (TVC) concerning the distribution by TVC over the internet, substantially in real time, of television broadcasts transmitted by the claimants in the main proceedings.

Employment tribunal

jmaher — Tue, 26 Mar 2013 10:25:20 +0000

Unfair dismissal – Determination whether procedure fair or unfair – Procedure relating to dismissal

Christou and another v Haringey London Borough: Court of Appeal, Civil Division: 12 March 2013

The employees had been employed as social workers by the employing local authority. They had been subject to disciplinary procedures under the simplified procedure. However, following a review into serious failings at the authority, the employees were then subjected to a more formal disciplinary process. The employees' were summarily dismissed. Their appeals were dismissed. The Court of Appeal, Civil Division, upheld the decision of the Employment Appeal Tribunal, finding that the second disciplinary proceedings had not been barred by the doctrine of res judicata, nor had the doctrine of abuse of process been engaged.

Contract

jmaher — Wed, 20 Mar 2013 14:49:16 +0000

Breach – Causation – Claimant seeking to sell house by means of competition

Overy v PayPal (Europe) Ltd: Queen's Bench Division, Manchester District Registry (Mercantile Court): 2 March 2012

The claimant sought to sell his house through a competition, which he organised by means of an electronic payment account through the defendant company, PayPal. When PayPal suspended his account, he commenced proceedings. The Mercantile Court held that although the claimant would not be protected by the Consumer Contracts Regulations 1999, he would be entitled to the protection of the Unfair Contract Terms Act 1977.

Patent

jmaher — Wed, 20 Mar 2013 10:44:17 +0000

Infringement – Validity of patent – Obviousness – Prior art

Samsung Electronics Co Ltd v Apple Retail UK Ltd and another company: Chancery Division, Patents Court: 7 March 2013

The claimant (Samsung) alleged infringement of three patents by the defendants (together Apple). In respect of the third patent (404) allegedly infringed, the Chancery Division, Patents Court, held that the patent was invalid both because it had lost priority and was accordingly rendered invalid by intervening prior art and because it was, in any event, obvious.

Insurance

jmaher — Tue, 19 Mar 2013 12:25:14 +0000

Claimant challenging defendant secretary of state's decision to ban referral fees – secretary of state contending no process of consultation adopted

R (on the application of Association of Personal Injury Lawyers) v Secretary of State for Justice: Queen's Bench Division, Administrative Court (London): 1 March 2013

The Administrative Court held that the claimant's challenge against the secretary of state for justice's reform of the 'no-win no-fee' conditional fee agreements and the banning of referral fees to be introduced by the provisions of sections 56-60 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 would be dismissed. The claimant's arguments that the secretary of state had erred by failing to engage all stakeholders during the process of consultation had not been established, since it had been clear that no process of consultation had been commenced.

Police services

jmaher — Thu, 14 Mar 2013 11:51:25 +0000

Police attendance at football matches – Defendant police force providing police services in certain identified streets and public areas beyond stadium and areas owned and controlled by claimant football club (the extended footprint)

Leeds United Football Club v Chief Constable of West Yorkshire Police: Court of Appeal, Civil Division: 7 March 2013

The Court of Appeal, Civil Division, in dismissing the defendant police authority's appeal, held that the policing of an extended footprint around the claimant football club's ground on match days was provided in order to maintain law and order and protect life and property in a public place pursuant to section 25 of the Police Act 1996. Accordingly, those services were not 'special police services' for which it was entitled to charge the club.

Copyright

jmaher — Mon, 11 Mar 2013 09:56:05 +0000

Infringement – Authorising infringement without licence of owner – Claim arising from downloading of music from three file-sharing websites in breach of copyright

EMI Records Ltd and other companies v British Sky Broadcasting Ltd and other companies: Chancery Division: 28 February 2013

The claimant record companies sought an injunction against the defendant internet service providers, to compel them to block or impede access by their customers to file-sharing websites from which copyrighted music was being illegally downloaded. The Chancery Division held that the grant of such an injunction was appropriate and proportionate.

Human rights

jmaher — Wed, 06 Mar 2013 17:19:25 +0000

Human Rights – Freedom of expression – Protesters

The wife and children of Omar Othman v The English National Resistance and others: Queen's Bench Division: 25 February 2013

The Queen's Bench Division, in granting orders preventing the defendants from harassing the claimant wife and children of Abu Qatada within 500m of their home and restraining the defendants from disclosing personal matters in relation to the claimants, held, amongst other things, that freedom of thought, conscience and religion was awarded subject to limitations provided by law, for example, in the Protection from Harassment Act 1997. Further, the balancing exercise as between articles 8 and 10 of the European Convention on Human Rights leaned towards the making of the non-disclosure order.

Appeal

jmaher — Wed, 06 Mar 2013 17:08:07 +0000

Discharge of jury – Defendant being convicted – Defendant appealing

R v Pouladian-Kari: Court of Appeal, Criminal Division: 22 February 2013

The Court of Appeal, Criminal Division quashed the defendant's conviction for being knowingly concerned in an attempt to export prohibited or restricted goods in circumstances where one of the jury members had special knowledge and experience of the issue which had arisen for the decision in the trial, resulting in the real possibility of unconscious jury bias and the conviction being unsafe.