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  • Case: UKSC 2018/0062. Peninsula Securities Ltd (Respondent) v Dunnes Stores (Bangor) Ltd (Appellant) (Northern Ireland)

    Issues:Whether the doctrine of restraint of trade applies to a restrictive covenant in a lease granted by the respondent’s predecessor in title to the appellant.Facts:Mr Shortall, the freehold owner of land in Londonderry, wished to develop a shopping centre on the land. On 2 February 1981 he granted a 999-year lease of part of the land to the appellant. The lease contained a restrictive covenant that any development on the remaining land would not contain a large unit for the purpose of trading in textiles, provisions or groceries. In 1983 Mr Shortall transferred the freehold and his interest in the lease to the respondent. In 2010 the respondent issued proceedings for, amongst other matters, a declaration that the restrictive covenant was unenforceable as an unreasonable restraint of trade. This issue was determined in the High Court as a preliminary issue.

  • Case: UKSC 2019/0001. Dill (Appellant) v Secretary of State for 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.

  • 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 2019/0089. R v C (AP) (Appellant)

    Issues:For the purposes of section 4(1) of the Explosive Substances Act 1883, can personal experimentation or own private education, absent some ulterior lawful purpose, be regarded as a "lawful object"?Facts:C was charged with two counts of having in his possession an explosive substance in circumstances giving rise to a reasonable suspicion that he had not made it for a lawful purpose, contrary to s.4(1) of the Explosive Substances Act 1883. C submits that he had manufactured the explosive substance for his own personal experimentation and education. That, C submits, is a "lawful object" and therefore a defence in law under s.4(1) of the Explosive Substances Act 1883. The Crown Court rejected that defence as untenable, holding that a lawful object is not simply the absence of criminal purpose. The Court of Appeal upheld that ruling. C now seeks permission to appeal to the Supreme Court.

  • Case: UKSC 2018/0129. Public Prosecutors Office of the Athens Court of Appeal (Appellant) v O'Connor (AP) (Respondent) (Northern Ireland)

    Issues:When considering section 26(5) of the Extradition Act 2003, can a distinction properly be drawn between the actions of a person who has done everything reasonably possible to give notice of the appeal and the actions of that person’s solicitor who has not?Facts:On 11 December 2015, His Honour Judge Devlin made an order for the extradition of Mr O’Connor to Greece in accordance with a European Arrest Warrant. Pursuant to section 26(4) of the Extradition Act 2003, Mr O’Connor then had seven days in which to give notice of any application for leave to appeal against this order. Mr O’Connor’s solicitor lodged this application on 16 December 2015 but failed to serve notice of the application on the Appellant until 4 January 2016 owing to an oversight. The question was whether Mr O’Connor’s appeal could nevertheless be entertained on the basis that he had done everything reasonably possibly to give notice of the appeal pursuant to section 26(5) of the Extradition Act 2003. The Divisional Court in Northern Ireland allowed the appeal to proceed, drawing a distinction between the actions of Mr O’Connor and the actions of his solicitor. The Appellant seeks to appeal against this order.

  • 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 2018/0152. Zipvit Ltd (Appellant) v Commissioners for Her Majesty’s Revenue and Customs (Respondent)

    Issues:Where a customer pays a supplier for what both parties mistakenly believe is a VAT-exempt supply, but turns out to be standard rated, can the customer claim a deduction of input tax from HMRC for the VAT element of the original payment? Facts:Zipvit used postal services provided by Royal Mail. All parties believed that the services were exempt from VAT but the European Court of Justice subsequently decided they are not. Zipvit therefore claims a deduction for input tax in respect of the payments it made for these services, which it says as a matter of law included an element of VAT. Royal Mail has never paid the VAT to HMRC. Many cases stand behind Zipvit’s case, selected as a lead case, and the total amount of tax at stake is in excess of £1 billion.

  • Case: UKSC 2018/0156. Sainsbury’s Supermarkets Ltd and others (Respondents) v MasterCard Incorporated and others (Appellants)

    Issues:In appeal 2018/0154: Whether the Court of Appeal erred in law – in finding that the multilateral interchange fees at issue amount to a restriction of competition in the acquiring market contrary to Article 101(1) TFEU; in its finding as to the evidence and standard of proof required to satisfy the four conditions of Article 101(3) for exemption from the prohibition on restrictive agreements in Article 101(1); and in interpreting the ‘fair share’ requirement for exemption under Article 101(3). In appeal 2018/0156: Whether the Court of Appeal erred in law – in finding that the multilateral interchange fees at issue amount to a restriction of competition in the acquiring market contrary to Article 101(1) TFEU; and in holding that the evidential standard for exemption under Article 101(3) TFEU is stricter than the ordinary civil standard. In appeal 2018/0156: Whether the Court of Appeal found, and if so, did err in law in finding that a defendant must prove the exact amount of loss mitigated in order to reduce damages. In cross-appeal 2018/0156: Whether the Court of Appeal erred in law by declining to provide a legal remedy corresponding to its own definitive ruling that the Asda, Argos and Wm Morrison Respondents should have succeeded at trial.Facts:MasterCard and Visa operate payment card schemes. Those schemes impose a number of rules that apply between, on the one hand, banks that issue debit or credit payment cards to their customers and, on the other, banks that contract with merchants. Those rules include rules that specify the terms on which transactions must be settled as between the banks of the customer and merchant in the absence of any different agreement between them. One such rule is the default multilateral interchange fee ("MIF"). Under both the Visa and MasterCard schemes, the MIF is payable on debit and credit card payments. When a cardholder pays in a store by card, their bank deducts the transaction value from their account and transfers it to the merchant’s bank minus the MIF. The merchant’s bank then transfers to the merchant the value of the transaction minus a merchant service charge ("MSC") negotiated between the merchant and its bank. Merchants’ banks pass on all of the MIF to merchants through the MSC, with negotiation between merchants and their banks in respect of the MSC being limited to the amount charged by the bank in excess of the MIF. Merchants are therefore unable to negotiate with the banks on the level of the MIF, which typically accounted for some 90% of the MSC for most of the claim period. Various retailers commenced proceedings in different courts, claiming that the schemes’ MIFs infringed Article 101 TFEU. This resulted in three judgments at first instance, each of which had a different outcome, and which were consolidated for the purposes of their appeals to the Court of Appeal. The Court of Appeal determined that the MIFs do restrict competition contrary to Article 101(1) and the equivalent national provisions and that all the cases under appeal should be remitted to the Competition Appeal Tribunal to determine whether the MIF is exempted under Article 101(3) from the prohibition in Article 101(1) on agreements restrictive of competition. The judgment of the Court of Appeal is now being appealed by three parties to the proceedings below. The Supreme Court has granted permission to appeal to Visa and MasterCard, and to Asda, Argos and Morrison in respect of their cross-appeal, but refused permission to Sainsbury’s.

  • Case: UKSC 2018/0154. Sainsbury’s Supermarkets Ltd (Respondent) v Visa Europe Services LLC and others (Appellants)

    Issues:In appeal 2018/0154: Whether the Court of Appeal erred in law – in finding that the multilateral interchange fees at issue amount to a restriction of competition in the acquiring market contrary to Article 101(1) TFEU; in its finding as to the evidence and standard of proof required to satisfy the four conditions of Article 101(3) for exemption from the prohibition on restrictive agreements in Article 101(1); and in interpreting the ‘fair share’ requirement for exemption under Article 101(3). In appeal 2018/0156: Whether the Court of Appeal erred in law – in finding that the multilateral interchange fees at issue amount to a restriction of competition in the acquiring market contrary to Article 101(1) TFEU; and in holding that the evidential standard for exemption under Article 101(3) TFEU is stricter than the ordinary civil standard. In appeal 2018/0156: Whether the Court of Appeal found, and if so, did err in law in finding that a defendant must prove the exact amount of loss mitigated in order to reduce damages. In cross-appeal 2018/0156: Whether the Court of Appeal erred in law by declining to provide a legal remedy corresponding to its own definitive ruling that the Asda, Argos and Wm Morrison Respondents should have succeeded at trial.Facts:MasterCard and Visa operate payment card schemes. Those schemes impose a number of rules that apply between, on the one hand, banks that issue debit or credit payment cards to their customers and, on the other, banks that contract with merchants. Those rules include rules that specify the terms on which transactions must be settled as between the banks of the customer and merchant in the absence of any different agreement between them. One such rule is the default multilateral interchange fee ("MIF"). Under both the Visa and MasterCard schemes, the MIF is payable on debit and credit card payments. When a cardholder pays in a store by card, their bank deducts the transaction value from their account and transfers it to the merchant’s bank minus the MIF. The merchant’s bank then transfers to the merchant the value of the transaction minus a merchant service charge ("MSC") negotiated between the merchant and its bank. Merchants’ banks pass on all of the MIF to merchants through the MSC, with negotiation between merchants and their banks in respect of the MSC being limited to the amount charged by the bank in excess of the MIF. Merchants are therefore unable to negotiate with the banks on the level of the MIF, which typically accounted for some 90% of the MSC for most of the claim period. Various retailers commenced proceedings in different courts, claiming that the schemes’ MIFs infringed Article 101 TFEU. This resulted in three judgments at first instance, each of which had a different outcome, and which were consolidated for the purposes of their appeals to the Court of Appeal. The Court of Appeal determined that the MIFs do restrict competition contrary to Article 101(1) and the equivalent national provisions and that all the cases under appeal should be remitted to the Competition Appeal Tribunal to determine whether the MIF is exempted under Article 101(3) from the prohibition in Article 101(1) on agreements restrictive of competition. The judgment of the Court of Appeal is now being appealed by three parties to the proceedings below. The Supreme Court has granted permission to appeal to Visa and MasterCard, and to Asda, Argos and Morrison in respect of their cross-appeal, but refused permission to Sainsbury’s.

  • Case: UKSC 2018/0160. Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant)

    Issues:Whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity. Facts:In the first appeal ("Mencap Appeal"), Royal Mencap Society ("Mencap") provides care and support for vulnerable adults under a contract with a local authority. Mrs Tomlinson-Blake is a highly qualified and extensively trained care support worker employed by Mencap since 2004. She provides care and support to two men, each in a private property. They both have autism and substantial learning difficulties. Mrs Tomlinson-Blake’s usual work pattern involved a day shift and a morning shift, for which she received appropriate salaried remuneration. She was also required to carry out a sleep-in shift from 10pm to 7am at a flat rate of £22.35, plus one hour’s pay of £6.70 (£29.05 in total). No specific tasks were allocated in the sleep-in shift. However, she needed to keep a ‘listening ear’ out during the night in case her support was needed and expected to intervene where required or respond to requests for help. That need to intervene was found to be real and infrequent – six times over the preceding 16 months. Absent such interventions, she was entitled to sleep throughout. Where her sleep was disturbed and she needed to provide night-time support, the first hour was not additionally remunerated, while any further hours were paid for in full. Her claim in the Employment Tribunal ("ET") was that she was entitled to have all the hours spent sleeping in counted as working time for minimum wage purposes. The ET and (on appeal by Mencap) the Employment Appeal Tribunal ("EAT") upheld her claim. The Court of Appeal allowed Mencap’s further appeal on 13 July 2018, deciding that she was not entitled to national minimum wage payments for such shifts. In the second appeal ("Shannon Appeal"), Clifton House is a registered residential care home in Surrey. It provides care for up to 16 elderly residents. Before Mr and Mrs Rampershad took over the care home in 2013, it was owned by a Mr Sparshott. In 1993, he offered Mr Shannon employment as an "on-call night care assistant" with accommodation in the studio within the care home ("the Studio"). He was required to be in the Studio from 10pm to 7am. He was able to sleep during those hours, but had to respond to any request for assistance by the night care worker on duty at the home. In return, he received free accommodation and £50 per week (later £90 per week). The original arrangement was for him to take some time away on holiday. However, from 1996 onwards, he slept there every night. In practice, he was very rarely asked to assist the night care worker. He had day jobs as a driver from time to time. His claim in the ET was that he was entitled to have all hours between 10pm and 7am counted as salaried hours work for minimum wage purposes for 365 days per year. The arrears due to him on that basis were calculated to amount to almost £240,000. The ET dismissed his claim for such minimum wage arrears. The EAT affirmed the ET’s decision. The Court of Appeal dismissed his further appeal on 13 July 2018.

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