Court of Appeal (Civil Division) judgments, 1999

In reviewing a national fisheries quota system under Community law, the court must distinguish discrimination from merely different treatment of different…

Where a contract provides for support and maintenance in perpetuity, the obligation survives termination of the principal agreement unless the contract…

Equitable interests in a family home arising under a resulting trust, constructive trust or proprietary estoppel may be overreached by a disposition or…

In judicial review, a court may refuse to quash a decision despite procedural impropriety where the circumstances are exceptional, the alleged defect could not…

A contractual time bar may extinguish liability even where the relevant breach occurs only after the contractual period has expired, provided that this is the…

A person may rely directly on a Directive against the State only where the relevant provision is unconditional and sufficiently precise, and the Member State…

A child support officer may require information about an absent parent’s new household when making the initial maintenance calculation. A “maintenance…

An expert is not disqualified merely because he or she is employed by a party, including a local authority. Permission depends on relevant expertise and…

A negligence claim should not be struck out where the existence of a duty of care depends on facts yet to be established and falls within an uncertain and…

In claims based on persecution by non-state agents, the adequacy of home-state protection is central to the Article 1A(2) inquiry. The Court divided on whether…

The court may grant summary judgment where a pleaded defence has no real prospect of success. The common-law defence of necessity to trespass is exceptional.…

Where parents share parental responsibility and disagree about non-medically necessary circumcision, one parent cannot arrange it alone under section 2(7) of…

Fresh evidence may be admitted on appeal where it was unavailable at trial, is sufficiently credible to have a real possibility of acceptance, and is likely to…

A statutory rent-increase notice remains valid where an earlier prescribed form is substantially to the same effect as the current form. Differences in layout…

In professional negligence cases, the Bolam approach applies to skilled judgments, but it does not determine disputed facts. The court must first decide what…

An immigration tribunal must observe the procedural safeguards governing further evidence. A party seeking to adduce additional evidence should give the…

Permission to appeal an interlocutory decision may properly be granted before trial where the proposed grounds raise significant public-policy issues and early…

Whether a design is commonplace under Copyright, Designs and Patents Act 1988, section 213(4), is a mixed question of law and fact. The design field is…

Refugee status depends on whether there is a serious risk that the applicant will be persecuted for a Convention reason if returned. The applicant does not…

A film may itself be a dramatic work under the Copyright, Designs and Patents Act 1988 if it is a work of action capable of performance before an audience. It…

A film can be a dramatic work under the Copyright, Designs and Patents Act 1988. The expression is not confined to works recorded from a pre-existing…

A secure tenancy terminated when the tenant breached a suspended possession order, leaving the former tenant in tolerated occupation during a statutory limbo…

A refugee sur place is not excluded from protection under the Geneva Convention merely because post-flight political activities were undertaken in bad faith or…

A pre-contractual representation must be construed objectively in its commercial context, including the parties’ knowledge, the transaction structure and the…

A court must not determine a central issue in civil proceedings on secret material, without notice to the opposing party, without evidence being called, and…

Long cohabitation as husband and wife gives rise to a strong common-law presumption of marriage. The presumption extends to compliance with requirements for a…

Summary judgment under rule 24.2 of the Civil Procedure Rules is appropriate where a party has no realistic, rather than fanciful, prospect of success and…

A post-employment covenant restraining competition is enforceable only so far as it reasonably protects the employer’s legitimate proprietary interests, such…

For limitation purposes, a claimant may have constructive knowledge of facts observable or ascertainable from a straightforward document which she might…

In an asylum claim based on homosexuality, persecution requires more than social disapproval, discrimination, harassment or difficulty in living openly. The…

Where the court’s jurisdiction is invoked in relation to a child’s medical care, the child’s welfare is paramount. A responsible and devoted parent’s views…

A planning permission must be construed from the approval notice as a whole. Clear indications that only a temporary permission was intended cannot be…

A planning permission must be construed objectively from the approval notice, read as a whole. Internal indications may establish that a temporary permission…

When deciding whether to permit a late amendment, the court should seek to determine the parties’ real dispute. An amendment should generally be allowed where…

Subordinate legislation made under one Act cannot be used to defeat specific statutory rights conferred by another Act. A power to prescribe requirements for…

Where a United Kingdom-resident company transfers an asset within a group and subsequently migrates, it ceases to be a member of the group when its United…

In relocation cases, the conventional approach which gives substantial weight to the primary carer’s reasonable proposal applies where parental roles are…

Where a company director, known to lack authority, procures a disposition of company money, no binding contract arises and the beneficial interest does not…

A default judgment should ordinarily be set aside where the defendant shows a merits defence carrying some degree of conviction. Substantial delay and serious…

A prescriptive right of way is limited by the use proved to have occurred while the dominant land was in its existing condition. The doctrine of lost modern…

Where an escape of water causes physical damage, damages ordinarily extend only to the reasonable cost of reinstating that damage. Recovery of expenditure on a…

For retirement relief, a person is a full-time working officer or employee where they are required to devote substantially the whole of their normal full…

An expert valuation stated to be final and binding will not be reopened merely because an alternative method of calculation produces a different result. The…

An admissions appeal committee must decide the merits of the individual appeal. Under the Education Act 1996, it is not generally a tribunal with jurisdiction…

On a strike-out application in a patent action, a claim should be struck out only where the alleged infringement is plainly and obviously unsustainable.…

For VAT purposes, a transaction supplied for one price must be analysed by reference to its essential features. Separate supplies remain distinct, but a…

A condition attached to a temporary planning permission must be construed by reference to the permission as a whole and according to its terms. Under Article…

A statutory time limit for appealing to a county court cannot be extended where the enabling statute confers no such power, and filing by fax is ineffective…

In disputes about medical treatment for a child, the court should determine the child's best interests on the facts existing when the dispute arises. It should…

A continuing nuisance caused by root encroachment gives rise to a continuing cause of action. A landowner may recover the reasonable cost of eliminating the…

A trust of personal property may be declared orally or inferred from conduct. No particular form of words is required. Where the property is already held by…

Professional indemnity cover depends on the true nature and proximate cause of the liability established by judgment, arbitration award or compromise. A third…

Under Part I of Insurance Companies Act 1982 Schedule 2C, a transfer of long-term insurance business is wider than an assignment of existing contractual rights…

A court must refuse to enforce a contract whose object is to deceive a third party, even where the illegality emerges without having been pleaded. The duty…

An express reservation of a right of way must be construed by reading the deed and the surrounding circumstances at the date of its execution together. Very…

Permission to remove a child temporarily to a non-Convention country requires careful and thorough preparation. The court must assess both the risk that…

To set aside a statutory demand on the basis of a counterclaim or disputed debt, the debtor must show a genuine triable issue. A disputed allegation fails…

Under Order 24, rule 14A, the implied undertaking restricting the use of compulsorily disclosed documents ends, unless the court orders otherwise, where the…

An appellate tribunal may review factual findings by a special adjudicator, but should be slow to interfere with credibility findings based on oral evidence.…

The Court of Appeal refused permission to appeal from a High Court judge's refusal to allow further challenges to a bankruptcy order where the applicant had…

On a renewed application for permission to appeal, permission should be granted where the proposed ground raises an arguable point with sufficient merit to…

An emergency control order under section 13 of the Food Safety Act 1990 may be used where the Minister reasonably considers that commercial operations…

On an application to confirm a reduction of capital, the court must be satisfied that creditors are protected and that the reduction is fair to affected…

In ancillary-relief proceedings, the court must identify the parties’ real financial resources. Moving cash into an account held by relatives does not remove…

Under section 24(6) of the Police & Criminal Evidence Act 1984, a constable must suspect both that an arrestable offence has been committed and that the person…

Under Council Regulation No 95/93, the airport co-ordinator allocates capacity declared under Article 6. The Regulation does not require or empower the…

In asylum cases, the applicant must show a current, well-founded fear of persecution on return. Past persecution is important evidence of present risk…

For VAT purposes, the court must identify objectively what the supplier provides under the agreement. The parties’ motives and commercial intentions are…

For an intermediary to be a commercial agent under the Commercial Agent (Council Directive) Regulations 1993, the statutory definition requires self-employed…

An appellate tribunal may permit a point of law to be raised for the first time on appeal only in exceptional circumstances and in accordance with established…

On a strike-out application, proximity remains a threshold requirement in negligence. The court may decide that issue on the pleaded facts where they do not…

Regulation 18(1) of the Community Health Councils Regulations 1996 requires consultation only on proposals which a health authority may have under…

"Special educational provision" under Part IV of the Education Act 1996 is not confined to classroom teaching and has no rigid boundary separating educational…

A procedural defect in a housing-benefit notice does not automatically invalidate the authority’s determination or prevent recovery in the County Court. The…

For limitation purposes, knowledge that an injury is attributable to an act or omission requires more than a reasonable belief or suspicion where the causal…

Time limits for appeals to the Employment Appeal Tribunal may be extended only in rare and exceptional cases where a reason justifies departure from the…

In a defamation action, a defendant may justify any defamatory meaning which the words are reasonably capable of bearing, but may not justify a separate…

A tenant may appeal an adverse legal determination made in proceedings that were dismissed overall where the determination may affect the tenant’s rights in…

In an Order 11 defamation claim, significant publication within England establishes an English tort, but it does not create an automatic entitlement to an…

On a standard-basis taxation, the reasonableness of instructing solicitors in a particular location is judged objectively by reference to the litigant’s…

Section 38(6) of the Children Act 1989 gives the court a broad power to obtain information needed for the final care decision. The power is investigative…

In ancillary relief proceedings, marital misconduct may affect the quantification of an award, while litigation misconduct ordinarily attracts a costs sanction…

A taxpayer sued for tax may raise a public law defence challenging the legality of directions underlying the assessment. The availability of judicial review…

In an opposed application to vary a residence order, the child’s welfare remains paramount. There is no statutory presumption that a child must be returned to…

In assessing an internal flight alternative, the decision-maker must consider all the circumstances relevant to whether relocation would be reasonable or…

In a rent review arbitration, an arbitrator’s assessment of the weight to be given to comparable evidence is not ordinarily misconduct. It may amount to…

Section 20(9) of the Landlord and Tenant Act 1985 does not give the court a general dispensing power. The discretion arises only after the court is satisfied…

Where entitlement to security for costs of an appeal is established, the amount should reflect a realistic assessment of the reasonable costs and expenses…

Under Regulation 8 of the Transfer of Undertakings (Protection of Employment) Regulations 1981, a dismissal is automatically unfair where the transfer is the…

Section 33 of the Limitation Act 1980 confers an equitable discretion to disapply the primary limitation period after balancing prejudice to both parties. For…

For asylum purposes, persecution requires more than isolated or random violence. It ordinarily involves a persistent course of conduct or sustained or…

A foster carer’s relationship with a local authority is not contractual and therefore does not constitute employment within section 78 of the Race Relations…

Under Employment Rights Act 1996, wages properly payable may include sums arising from the employment relationship which are not strictly contractual. However…

A sham tenancy document creates no contractual rights or obligations different from those actually intended by the parties. A successor in title who takes the…

Contractual words must be construed in the context of the agreement as a whole. Where a contract states that a price is “exclusive of VAT”, that ordinarily…

Where a client asks a solicitors’ firm to see a solicitor, and the firm supplies a non-solicitor adviser without explaining that person’s status, the…

An appellate court should not interfere with a trial judge’s apportionment of responsibility unless the judge erred in principle, misapprehended the facts, or…

In misconduct dismissals, fairness does not impose a universal requirement that an employee receive copies of witness statements obtained by the employer. The…

A fraud pleading can survive strike-out where it clearly alleges the representations, falsity, reliance and actual knowledge, even without particulars…

A famous person’s name is not inherently distinctive as a trade mark merely because the public uniquely associates it with that person. The question is whether…

Part IV of the Family Law Act 1996 may protect relatives, including brothers, even where they live in separate homes, if the dispute is genuinely shaped by the…

The Bill of Rights did not confer an unqualified right to possess firearms. Its declaration that Protestant subjects might have arms for defence was…

Under section 51(1) and (3) of the Supreme Court Act 1981, the court may order a non-party to pay litigation costs where, in all the circumstances, justice…

A constable may stop and search a person under Police and Criminal Evidence Act 1984, section 1, only where there are objectively reasonable grounds for…

Where a purchaser has paid the purchase price and performed the substance of an agreement for land, the vendor may hold the remaining legal title as a bare…

Under the trade mark legislation, a person who brings goods bearing another party’s mark into the United Kingdom with that party’s permission thereby…

A petition under sections 459 and 461 of the Companies Act 1985 must concern unfairly prejudicial conduct of the company’s affairs, or an act or omission of…

A former tenant remains liable for rent only if the landlord serves the notice required by section 17 of the Landlord and Tenant (Covenants) Act 1995 within…

A defects-liability clause which requires a contractor to make good patent defects does not, without clear words or necessary implication, extinguish the…

In construing an occupational pension scheme, the court must adopt a practical and purposive approach, while giving effect to the scheme’s actual language. An…

Under RSC O.65, r.4, impracticability of personal service is the essential precondition to substituted service. The court retains a broad discretion as to the…

There is no presumption that a parent has a right to contact with an adult child who lacks capacity to consent. The court must determine whether contact is in…

The residual discretion to grant rights of audience to a person outside the statutory categories must be exercised only in exceptional circumstances.…

Under Part IV of the Police and Criminal Evidence Act 1984, police detention must comply with the statutory review requirements. Where a required review is not…

Whether an insured event was likely to give rise to a claim under a notification condition must be assessed objectively, by reference to what the insured knew…

A trial judge must try to resolve disputed facts and must not avoid the issues merely to protect the parties’ interests. In the exceptional case, however, an…

Leave to appeal may be granted where the proposed appeal raises an issue not directly covered by existing Court of Appeal authority and authoritative…

The Court of Appeal held that it was appropriate to adjourn an application for permission to appeal where a closely overlapping preliminary reference to the…

On an application under section 167(1)(a) of the Insolvency Act 1986, the court itself must decide whether to sanction a liquidator’s proposed compromise. The…