Supreme Court

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  • Case: UKSC 2018/0150. Lehtimaki and others (Respondents) v Cooper (Appellant)

    Issues:Does the court have jurisdiction to direct members of a charitable company on how to exercise their powers absent a breach of fiduciary duty? Facts:The Children’s Investment Fund Foundation ("CIFF") 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.

  • Case: UKSC 2018/0203. Commissioners for Her Majesty’s Revenue & Customs (Appellant) v London Clubs Management Ltd (Respondent)

    Issues:The correct approach as to determining the value of non-negotiable chips for the purpose of calculating gaming duty.Facts:This case concerns non-negotiable chips and promotional vouchers ("Non-Negs") which are worth their face value when played in a casino game. The issue in the appeal is whether a player who places a bet in one of London Club Management Ltd’s casinos using Non-Negs, has staked "value, in money or money’s worth" with the casino, within the meaning of section 11(10)(a) of the Finance Act 1997. This issue is relevant to London Club Management Ltd’s liability to gaming duty in respect of Non-Negs that are lost to (or otherwise retained by) London Club Management Ltd as banker.

  • Case: Case summary. Case ID: UKSC 2019/0068

    Issues:In a claim for discrimination contrary to the Equality Act 2010, which party bears the burden of proving that discrimination has or has not occurred?Facts:The appellant, Mr Efobi, is a black Nigerian and a citizen of the Republic of Ireland. He has graduate and postgraduate qualifications in information systems. From August 2013, he was employed by the respondent, Royal Mail Group Ltd ("RMG"). He worked as a postman in the operational department but wanted to be employed in the management/IT service area. He applied for many posts but was unsuccessful. He brought proceedings in the Employment Tribunal ("ET") for harassment, victimisation, and direct and indirect race discrimination in relation to his failure to obtain 22 of these posts. The ET rejected his claims of discrimination, but his harassment and victimisation claims succeeded in part. Mr Efobi successfully appealed the ET’s discrimination findings in the Employment Appeal Tribunal ("EAT"). The EAT concluded that the ET had erred in its approach to the burden of proof. RMG successfully appealed the EAT’s decision to the Court of Appeal. Mr Efobi now appeals to the Supreme Court.

  • Case: Case summary. Case ID: UKSC 2019/0136

    Issues:The issues are, in the context of the Taxes Management Act 1970, section 29, in circumstances where Mr Tooth, in his self-assessment tax return for 2007-08, entered a loss he claimed was an employment loss as a partnership loss but informed HMRC that the loss was, in fact, an employment loss: (1) whether (and if so, how and when), on the facts of the case, HMRC made a "discovery" of an insufficiency of tax in Mr Tooth’s income tax self-assessment return for 2007-08; (2) whether a concept of "staleness" exists and, if so, how it applies in this case; (3) whether Mr Tooth’s return contained an "inaccuracy" (in that the loss claimed was entered as a partnership loss, rather than an employment loss; HMRC say that Mr Tooth’s explanation in his return that the loss was, in fact, an employment loss does not prevent the entry of the loss in the partnership box from being an "inaccuracy", whereas Mr Tooth says that his explanation that the loss claimed was an employment loss prevents there being an inaccuracy in his return at all) and (4) if so, was that inaccuracy "deliberate". It is common ground that the discovery assessment is valid if (and only if) the answer to each and every issue is determined in HMRC’s favour. Otherwise the discovery assessment is invalid. Facts:Mr Tooth entered into an arrangement to obtain an employment loss ("Romangate"). Whether or not the arrangement achieved its objective at the time it was entered into, it was in any event nullified by retrospective legislation. Mr Tooth had submitted his tax return claiming the loss (before the retrospective legislation was enacted) but as a partnership loss, rather than an employment loss (because he wanted to use the loss immediately against his tax liability for that year, and the software in the electronic tax returns would not permit the entry of the relevant figures into the box for employment losses). Mr Tooth had informed HMRC in the "white space" to the return that the loss he claimed was an employment related loss. HMRC issued a discovery assessment on Mr Tooth (after the enactment of the legislation which nullified the arrangement) on the basis that: (1) HMRC had discovered an insufficiency in Mr Tooth’s return; (2) Mr Tooth’s return contained an inaccuracy (in that the loss was entered on the partnership pages of the return and Mr Tooth’s explanation as to why he had done this did not alter the nature of what HMRC consider to be an inaccuracy); and (3) this inaccuracy was deliberate.

  • Case: Case summary. Case ID: UKSC 2019/0147

    Issues:(1) What is the test that the court must apply to determine the lawfulness of policy issued by HM Government in relation to the treatment of asylum seekers who claim to be children. (2) Whether the Home Department’s policy relating to an initial assessment of the age of asylum-seekers claiming to be children is lawful. Facts:BF is a national of Eritrea and an asylum seeker who presented himself to police claiming that he was 16 years old. The immigration officers who saw him believed him to be substantially over 18, describing his physical appearance as that of an adult in his mid-twenties. He had previously claimed asylum in Italy, where he had given his age as 26. BF was held in immigration detention pending his return to Italy and continued to claim that he was a minor. Two formal age assessments found him to be an adult, but a third found him to be 16. Save in limited circumstances, it is unlawful for the Home Department to detain an unaccompanied child. BF applied for judicial review of the decision to detain him on the ground that the Home Department’s policy, which provided that a person claiming to be a child could be treated as an adult if immigration officers considered that their physical appearance very strongly suggested that they are significantly over 18, is unlawful. BF’s judicial review claim was rejected by the Upper Tribunal. The Court of Appeal allowed BF’s appeal by a majority. The SSHD appeals the Court of Appeal’s decision.

  • Case: Case summary. Case ID: UKSC 2019/0167

    Issues:Whether section 61N of the Town and Country Planning Act 1990 should be interpreted to mean that the Appellant’s application for judicial review was made out of time.Facts:St Anne's on the Sea Town Council submitted a proposal to Fylde Borough Council, the local planning authority, for a neighbourhood development plan. The draft plan related to land adjacent to that owned by Fylde Coast Farms Ltd. Under the Town and Country Planning Act 1990, the draft plan was considered by an independent examiner, who made a report to Fylde Borough Council, recommending that the plan be modified to include land owned by Fylde Coast Farms Ltd and then submitted to a referendum. Fylde Borough Council decided to submit the draft plan to a referendum without the proposed modification. 90% of those voting in the referendum supported the draft plan and Fylde Borough Council subsequently published its decision to make the plan. Just under six weeks later, Fylde Coast Farms Ltd applied for a judicial review of the Council’s decision to make the plan without the examiner’s proposed modification. The Planning Court held that Fylde Coast Farm Ltd’s challenge related to Fylde Borough Council’s decision to hold the referendum without modifying the draft plan, rather than its later decision to make the plan. Since that decision had been published more than six weeks before Fylde Coast Farm Ltd’s claim for judicial review, the Planning Court held that the claim had been brought out of time. The Court of Appeal dismissed Fylde Coast Farm Ltd’s appeal. It now appeals to the Supreme Court.

  • Case: Case summary. Case ID: UKSC 2019/0121

    Issues:For the purpose of interpreting a contract for public liability insurance provided by Hanover (the "Policy"), the Supreme Court is asked to consider whether the death of Ms Burnett’s husband: (1) was brought about by a "deliberate act" within the terms of the Policy and, if so, whether Hanover’s liability to indemnify is excluded by the relevant policy wording; and (2) was a consequence of a "wrongful arrest" within the terms of the Policy with the effect that Hanover’s liability is limited to GBP 100,000. Facts:Ms Burnett is the widow of Mr Grant who died on 9 August 2013 following an assault by a door steward at a bar in Aberdeen. The door steward was employed by Prospect Security Limited ("PSL") which had obtained public liability insurance coverage from Hanover. Ms Burnett claims directly against Hanover under the Third Parties (Rights against Insurances) Act 2010 (the "2010 Act") as PSL is currently in liquidation. Hanover submits that its liability is wholly excluded under the terms of its Policy, which excludes liability for "deliberate acts, wilful neglect or default". Alternatively, the Insurer submits that door steward’s actions qualified as a "wrongful arrest" under the Policy, for which liability is limited. The Outer House of the Court of Session did not accept either submission. It held that Hanover was obliged to indemnify PSL and that this right vested in Ms Burnett under the 2010 Act. The Outer House’s finding was upheld by the Inner House of the Court of Session. The Insurer now seeks permission to appeal to the Supreme Court.

  • Case: Case summary. Case ID: UKSC 2019/0103

    Issues:Did the sale and leaseback of a care home involve the disposal of the owner’s entire interest, such that it effectively lost the benefit of zero-rating under paragraph 36(2) of Schedule 10 to the Value Added Tax Act 1994?Facts:In March 2013, Balhousie Care Ltd acquired a care home at Deveron Way, Huntly, Aberdeenshire on a zero-rated basis for VAT purposes. In order to finance the acquisition and further developments, it entered into a sale-and-leaseback arrangement with Target Healthcare REIT. Pursuant to that arrangement, Balhousie Care conveyed the land to Target and Target immediately granted the land on a long lease back to Balhousie. HMRC considered this involved the disposal of Balhousie Care’s entire interest in the care home. It sought to impose a VAT self-supply charge on Balhousie Holdings Ltd (an entity which was part of the same VAT group) under paragraph 36(2) of Schedule 10 to the Value Added Tax Act 1994 and issued a penalty notice. Balhousie Holdings successfully appealed to the First-tier Tribunal but HMRC’s approach was upheld by the Upper Tribunal and Inner House of the Court of Session.

  • Case: Case summary. Case ID: UKSC 2020/0191

    Issues:(1) Does a child named as a dependent on a parent’s asylum application have any protection from refoulement? (2) Can a return order be made under the 1980 Hague Convention even where a child has protection from refoulement? (3) Should the High Court be slow to stay an application under the 1980 Hague Convention prior to determination of an application for asylum?Facts:G is an only child of divorced parents. Until February 2020, her parents lived near to each other in South Africa. However, after telling friends that she was lesbian, G’s mother began to experience persecution from her family in South Africa. As a result, she fled to England with G and made an application for asylum. Upon discovering that G had been taken to England, G’s father made an application for her return under the 1980 Hague Convention. At first instance, Lieven J held that the father’s application for a return order should be stayed pending the determination of G’s mother’s asylum claim. The Court of Appeal considered that, in the circumstances, the High Court was not barred from determining the father’s application for a return order, nor was it barred from making such an order. The mother now appeals to the Supreme Court.

  • Case: Case summary. Case ID: UKSC 2019/0210

    Issues:This case concerns conditions in Hungarian prisons, and the approach to be taken in assessing and relying on assurances as to prison conditions given by the Hungarian authorities. The Supreme Court is asked to decide, when a court is considering whether to make or uphold an extradition order, and is obliged to assess an assurance given to the UK regarding future detention: (1) Is there a special test for admitting evidence relating to assurances given to the courts or authorities of countries other than the United Kingdom? (2) If so, was the High Court right that the court should exercise very considerable caution before admitting such evidence and that it should only do so if satisfied that the evidence is manifestly credible, directly relevant to the issue to be decided and of real importance for the purpose of that decision? Facts:The respondent, the Mateszalka District Court, Hungary, sought the extradition of the appellant, Mr Zabolotnyi, to Hungary pursuant to a European Arrest Warrant. On 5 September 2017, the District Judge ordered Mr Zabolotnyi’s extradition to Hungary. Mr Zabolotnyi appealed to the High Court. During his extradition hearing, Mr Zabolotnyi had argued that he faced a real risk of being detained in overcrowded prison conditions in Hungary, in breach of his rights under Article 3 of the European Convention on Human Rights. The Hungarian Ministry of Justice gave an assurance guaranteeing that, if extradited, Mr Zabolotnyi would be held in conditions compliant with Article 3. However, Mr Zabolotnyi argued that this assurance was unreliable. On appeal to the High Court, he sought to rely on fresh evidence from individuals extradited to Hungary from both the UK and Germany who complained that they had been subject to comparable assurances which were not honoured. The High Court held that there was no substantial risk that Mr Zabolotnyi’s Article 3 rights would be breached if he was extradited to Hungary. It held that evidence of past breaches of assurances given to other member states would only be admissible if it was manifestly credible, directly relevant to the issue to be decided and of real importance for the purpose of that decision. Applying that test to Mr Zabolotnyi’s case, the evidence relating to breaches of the German assurances was held to be inadmissible. The evidence concerning the UK assurances was considered to be limited. The appeal was dismissed. Mr Zabolotnyi now appeals against that ruling to the Supreme Court.

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