Latest documents

  • Case: UKSC 2018/0117. Travelers Insurance Company Ltd (Appellant) v XYZ (Respondent)

    Issues:Where a liability insurer was contractually obliged to indemnify its insured against the costs of defending claims against it by third parties, in what circumstances is it appropriate to make an order pursuant to section 51 of the Senior Courts Act 1981 (the "1981 Act") the effect of which is to impose on a liability insurer, an extra-contractual liability to pay those third parties’ costs of bringing the claims?Facts:The issue raised on this appeal is the liability for costs arising out of litigation concerning the supply of defective implants for use in breast surgery, which had been manufactured by PIP. Claims were made in group litigation and were brought against Transform Medical Group (CS) Ltd ("Transform"). Transform had insurance cover with Travelers Insurance Co Ltd in relation to 197 claims; but was uninsured in respect of 426 claims made against it. Transform subsequently entered insolvent administration. The insured claims were settled by an agreement made in August 2015. Travelers paid an agreed proportion of the damages and costs attributable to those insured claims. The uninsured claimants (respondents) applied to the court for an order that Travelers pay their costs of the action.

  • Case: UKSC 2019/0046. BTI 2014 LLC (Appellant) v Sequana SA and others (Respondents)

    Issues: Whether an otherwise lawful dividend may nevertheless in principle be a "transaction defrauding creditors" under section 423 Insolvency Act 1986. Whether the trigger for the directors’ duty to consider creditors is merely a real risk of, as opposed to a probability of or close proximity to, insolvency. Facts:Sequana’s subsidiary was liable to indemnify BAT for costs arising from the clean-up of a polluted river. The directors of the subsidiary resolved that it should pay a substantial dividend to Sequana, without – BAT says – leaving enough money in the subsidiary to pay for the clean-up costs.

  • Case: UKSC 2018/0192. The Law Debenture Trust Corporation plc (Appellant) v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) (Respondent) No. 3

    Issues:In the Appeal by The Law Debenture Trust Corporation p.l.c.: whether there is any "domestic foothold" for the allegations of duress made by Ukraine or whether the foreign act of state doctrine is relevant to or engaged by the allegations such that they are non-justiciable before the English Court; and whether the claim (or any of its aspects) ought to be stayed. In Ukraine’s Appeal: whether Ukraine’s defence of lack of contractual capacity has a real prospect of success (including whether Ukraine as a sovereign has unlimited capacity to contract); whether Ukraine has an arguable case that Ukraine’s Minister of Finance did not have ostensible authority and/or usual authority to enter into the Notes and that it has not ratified the Notes; whether Ukraine’s defence that it was entitled not to repay sums otherwise due as a countermeasure has a real prospect of success; and whether there is a "compelling reason" within the meaning of CPR r24.2(b) for any of Ukraine’s defences to be determined at a trial irrespective of whether any of those defences satisfy CPR r24.2(a). Facts:The Law Debenture Trust Corporation p.l.c. (the "Trustee") is trustee of notes with a nominal value of USD 3bn carrying interest of 5 per cent per annum (the "Notes"). The Notes were issued by Ukraine (subject to Ukraine’s arguments that the Notes are void or voidable). The Notes were constituted by a trust deed to which the Trustee and Ukraine were named parties. The sole subscriber of the Notes was the Russian Federation. The principal amount of the Notes fell due for payment, together with the last instalment of interest, on 21 December 2015. However, payment was not made, and Ukraine has refused to make payment. The Trustee commenced proceedings for payment. Ukraine filed a Defence that resisted payment on the grounds that: (1) Ukraine lacked capacity to enter into the transaction as a matter of Ukrainian law; (2) Ukraine’s signatory (its Minister of Finance) lacked the authority to enter into the transaction by which the Notes were issued; (3) Ukraine was entitled to avoid the Notes for duress arising from allegedly unlawful threats made by the Russian Federation against Ukraine (including alleged threats to its territorial integrity and alleged threats of the use of unlawful force) and the application of allegedly unlawful trade measures and economic pressure by the Russian Federation before the transaction was entered into; (4) the terms on which the Notes were issued included implied terms that (inter alia) they would not be enforceable in circumstances where the Russian Federation itself was allegedly preventing or hindering their performance; and (5) in light of the Russian Federation’s alleged breach of its obligations towards Ukraine not to use force against Ukraine and/or not to intervene internally in the affairs of Ukraine, Ukraine was entitled to rely on the public international law doctrine of countermeasures to decline to make payment. The Trustee does not accept Ukraine’s Defence. The Trustee’s position is that even if Ukraine’s account of what occurred were accurate, it would be irrelevant to the Trustee’s rights under the Notes. The Trustee applied for summary judgment. Summary judgment was granted by Blair J, who also granted Ukraine permission to appeal. The Court of Appeal held that Ukraine had an arguable defence of duress (defence (3)), and that if it had not been justiciable then the claim would have been stayed, but not in respect of its other defences. (The Court of Appeal held that ratification was not suitable for summary determination, but this did not affect the result as Ukraine was bound by the ostensible authority of the Minister of Finance.) The Trustee appeals in respect of defence (3) and the Court of Appeal’s decision that it would have stayed the claim if it was non-justiciable, and Ukraine appeals in respect of defences (1), (2) and (5) (but not in respect of defence (4)).

  • Case: UKSC 2020/0179. Argenta Syndicate Management Ltd (Appellant) v Arch Insurance (UK) Ltd and others (Respondents)

    Issues:These appeals against the orders of the Butcher J and Flaux LJ concern the construction of certain provisions in insurance policies written by the Appellant Insurers, and obtained by a range of businesses and organisations, which purport to provide coverage in the event of business interruption. The Divisional Court considered the construction of each policy wording and the FCA, the Appellant Insurers and the Hiscox Interveners appeal on a number of points. However, broadly speaking, the Supreme Court is asked to determine: 1. certain matters of construction relating to: a. "Disease Clauses" (i.e. those which can be triggered by the occurrence of severe acute respiratory syndrome coronavirus 2 ("COVID-19"), typically within a specified distance of the insured’s premises); b. "Prevention of Access Clauses" (i.e. those triggered by public authority intervention preventing access to, or use of, premises as a result of COVID-19); and c. "Hybrid Clauses" (i.e. those clauses which contain wording from both Disease and Prevention of Access Clauses), and 2. whether the Divisional Court was correct: a. to apply certain counterfactual scenarios in relation to the operation of the clauses in relevant policies which provided for loss adjustments (the "Trends Clauses"); and b. in its analysis of Orient-Express Hotels Ltd v Assicurazioni Generali S.p.A. Facts:In March 2020, the UK Government began to take a series of measures to combat the transmission of COVID-19. These included informal announcements and instructions from the Prime Minister as well as the passage of primary and secondary legislation through the UK Parliament and devolved administrations. The present appeals considered the impact of these actions and measures on 28 clauses in the 21 lead policies written by the Appellant Insurers. The FCA and the Appellant Insurers agreed to submit those policy wordings for consideration with the aim of addressing issues arising from similar policies prevalent in the insurance industry. The case was heard in July 2020 by the Divisional Court under the Financial Markets Test Case Scheme. Judgment was given on 15 September 2020 and final orders were sealed on 18 October 2020.

  • Case: UKSC 2018/0173. Shagang Shipping Company Ltd (in liquidation) (Appellant) v HNA Group Company Ltd (Respondent)

    Issues: Whether the Judge made a finding that torture had not been proved on the balance of probabilities. The correct treatment of hearsay evidence in a civil trial where the possibility of torture cannot be ruled out. Whether the Court of Appeal erred in rejecting the contention that a payment to an individual who was not an employee or agent should not give rise to an irrebuttable presumption of bribery. Facts:The Appellant ("Shagang") and the Respondent ("HNA") are both based in China. In August 2008, a charterparty was concluded between Shagang and Grand China Shipping Co Ltd ("Grand China"). HNA provided a guarantee for Grand China's payment obligations under the charterparty dated 6 August 2008 ("the guarantee"). On 9 December 2010, Shagang made a demand to HNA under the guarantee, after Grand China defaulted. HNA declined to pay. The charterparty was terminated. The present English proceedings were issued against HNA in September 2012, when Shagang sued on the guarantee. HNA's defences are fraudulent non-disclosure and illegality. HNA claims that a bribe of RMB 300,000 was paid by Mr Xu Wenxhong ("Mr Xu"), an employee of Shagang, on instructions by Mr Shen Wenfu ("Mr Shen"), then General Manager of Shagang, to Mr Xu’s college acquaintance Mr Jia Tingsheng ("Mr Jia T"). This was alleged to have been done with a view to Mr Jia T persuading his father, Mr Jia Hongxiang ("Mr Jia H"), to approve the charterparty as quickly as possible. Mr Jia H was a General Manager within HNA and CEO of Grand China. In support of its bribery case, HNA relied on admissions made by Mr Xu, Mr Jia T and Mr Shen to officers of the Haikou Public Security Bureau ("the PSB") and a guilty plea by Mr Xu in the Chinese criminal courts. Shagang alleged that the confession evidence was obtained by torture and was therefore inadmissible. On 16 May 2016, Knowles J in the Commercial Court did not find bribery by Shagang, but also stated that he could not rule out the possibility of torture but that the available evidence did not equip him well to reach a firmer conclusion. Knowles J granted judgment in favour of Shagang for US$68,641,712. The Court of Appeal allowed the appeal on 23 July 2018, admitted new evidence and remitted the case to the Commercial Court for a partial retrial to determine whether bribery had occurred on the basis that Knowles J had already found, as a matter of law, that there was no torture.

  • Case: UKSC 2018/0068. Okpabi and others (Appellants) v Royal Dutch Shell Plc and another (Respondents)

    Issues:Whether and in what circumstances the UK-domiciled parent company of a multi-national group of companies may owe a common law duty of care to individuals who allegedly suffer serious harm as a result of alleged systemic health, safety and environmental failings of one of its overseas subsidiaries as the operator of a joint venture operation.Facts:The Appellants (some 42,500 people) are citizens of Nigeria and inhabitants of the areas allegedly affected by oil leaks from pipelines and associated infrastructure, that SPDC operates on behalf of an unincorporated joint venture in which numerous participating interests are held, in and around the Niger Delta. The leaks are said to have impacted their lives, health and local environment. They contend that the Respondents are responsible. Royal Dutch Shell Plc (‘RDS’) is the parent company of the Shell group of companies, incorporated in the UK. The Shell Petroleum Company of Nigeria Limited (‘SPDC’, the other Respondent) is an exploration and production company incorporated in Nigeria and is a subsidiary of RDS. The claims against RDS and SPDC are based on the tort of negligence under the common law of Nigeria which, for present purposes, is to be regarded as the same as the law of England and Wales. The claim against RDS is brought on the basis that RDS owed the claimants a duty of care either because it exercised significant control over material aspects of SPDC’s operations and/or assumed responsibility for SPDC’s operations. RDS applied under CPR Part 11(1) for orders declaring that the court had no jurisdiction to try the claims against it, or should not exercise such jurisdiction as it had. At first instance Fraser J held that there was no arguable case that RDS owed the Appellants a duty of care. The Appellants appealed to the CA against the judgment and Order of Fraser J. The CA upheld the decision of Fraser J. The Supreme Court has since clarified the law in this area, including by reference to the CA’s decision in this case, in Vedanta Resources PLC and another (Appellants) v Lungowe and others (Respondents) [2019] UKSC 20.

  • Case: UKSC 2019/0042. ZTE Corporation and another (Appellants) v Conversant Wireless Licensing SÁRL (Respondent)

    Issues:1. Does the English court have 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? 2. If the answer to (i) is "yes", is England the proper forum for such a claim in the circumstances of the Conversant proceedings? 3. 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? 4. 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??Facts: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.

  • Case: UKSC 2018/0208. Commissioners for Her Majesty’s Revenue & Customs (Respondent) v Parry and others (Appellants)

    Issues:This appeal is principally 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 ("IHTA 1984") a "disposition" which is a "transfer of value" in favour of her sons, who were to be the beneficiaries of the death benefit. The relevant statutory provisions are section 3(1) IHTA 1984, read with section 10(1), and section 3(3) IHTA 1984.Facts:The appeal arises out of the estate of Mrs Rachel Staveley who died of cancer on 18 December 2006. The Appellants are the personal representatives of Mrs Staveley’s estate. Shortly before her death Mrs Staveley transferred her pension fund from a pension under section 32 of the Finance Act 1981 to an AXA personal pension plan. If the pension had remained in the company scheme, on her death a sum would have been payable to her estate and chargeable to inheritance tax. Under the AXA personal pension plan, the deceased’s two sons were her beneficiaries in relation to death benefit. The deceased did not take any retirement benefit during her lifetime. Section 10(1) of the 1984 Act removed from the charge to inheritance tax a disposition which was not made with the intention of conferring a gratuitous benefit on any person, and which met further conditions, by providing that it was not a transfer of value. The effect in this case was that if section 10(1) applied, the sons would receive the death benefit free of inheritance tax. The First-tier Tribunal found that the deceased's sole motive for the transfer was to avoid any part of her pension fund reverting to the company, and thus to her former husband and partner in the company. The transfer was therefore not intended to confer a gratuitous benefit on her sons. However, it found that the omission to take any income benefits did constitute a transfer of value. This decision was upheld by the Upper Tribunal regarding the pension fund transfer, however the Upper Tribunal reversed the decision concerning the omission to take income benefits. HMRC appealed to the Court of Appeal and the appeal was allowed.

  • Case: UKSC 2018/0131. Regeneron Pharmaceuticals Inc (Respondent) v Kymab Ltd (Appellant)

    Issues:Kymab Ltd ("Kymab") alleges that the relevant patents are invalid for insufficiency because they did not enable the ordinary skilled person to work the claimed invention across the breadth of the claims.Facts:The patents are concerned with biotechnology, and in particular the production of human antibodies using transgenic mice. By the priority date, the potential uses of antibodies (also known as immunoglobulins) for treating human disease had been well recognised, and a number of different antibodies had been developed and approved for such use. The patents describe a technique for making such antibodies. Regeneron appealed the decision of Henry Carr J that European Patent (UK) No 1 360 287 and its divisional European Patent (UK) No 2 264 163 ("the 287 patent" and "the 163 patent" respectively) are invalid. Kymab cross-appealed against the judge's finding that its various strains of transgenic mice would infringe claims 5 and 6 of the 287 patent and claim 1 of the 163 patent if those patents had not been invalid. Regeneron’s appeal was allowed by the Court of Appeal. Kymab’s cross-appeal was dismissed.

  • Case: UKSC 2019/0001. Dill (Appellant) v Secretary of State for Housing, Communities and Local Government and another (Respondents)

    Issues:On an application for listed building consent, should the Planning Inspector consider whether the items listed were ‘buildings’; and(ii) what is the correct approach to determining whether the items are ‘buildings’?Facts:In 1973 the appellant’s father purchased Idlicote House, which had been designated a Grade II listed building in 1966. He brought with him from his previous residences a pair of eighteenth-century lead urns resting on limestone piers and put them in the gardens. On 30 June 1986 the urns and piers were individually listed. The appellant came into ownership of Idlicote House in 1993 but was unaware of the listing. He sold the items at public auction in 2009. In 2015 the second respondent (‘the Council’) told the appellant that listed building consent had been required for the removal of the items. The Council refused his application for consent and issued a listed building enforcement notice requiring the return of the items. The appellant appealed against both decisions, contending that there had been no breach of listed building control because the items were not buildings, that the items should be de-listed, or consent given. The Inspector dismissed his appeals.

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