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Examples of Recent Cases

Case Study 1

Mr M was viciously attacked by unknown assailants following a night out with friends. He suffered a fracture of the orbital bone cavity of his right eye requiring two operations and leaving him with permanent scarring. Having been refused Criminal Injuries Compensation by the CICA the Student Law Office successfully helped Mr M appeal this decision. We represented Mr M at his hearing he was awarded £2,200 in compensation as a result.

Case Study 2

Mr G was the victim of an armed robbery during the course of his employment as a Cash Transit Officer. He suffered from Post Traumatic Stress Disorder following this incident lasting for almost two years at the date of hearing with symptoms expected to resolve slowly over many years. Having been refused Criminal Injuries Compensation by the CICA the Student Law Office successfully helped Mr G appeal this decision. We represented Mr G at his hearing and he was awarded £8,200 in compensation as a result.

Case Study 3

The students in the Student Law Office drafted a management agreement for a client who was concerned that there was nothing in place to formalise his relationship with the band he was managing, known as “The Watchers” despite him having effectively contributed to the band’s success. The management agreement formalised the client’s relationship with the band and protected his legal position.

Case Study 4

The client wished to set up a charitable trust to assist with the costs of caring for sick and injured hedgehogs. The client was interested in raising awareness about hedgehogs and their overall decline and wanted to know what sources of funding may be available to such a charity. The students provided the client with advice and guidance on the necessary formalities to set a charity. The students also provided the client with information surrounding funding and grants available to the charity.  

Case Study 5

Mrs E is a carer for her brother who has a number of health problems and disabilities. He had applied for Disability Living Allowance to help with these problems but this had been refused. The Student Law Office assisted with a benefit tribunal obtaining supporting medical evidence, preparing arguments for and attending to represent at the tribunal hearing. As a result the client was awarded backdated benefit amounting to in excess of £7,000 together with an ongoing extra weekly payment of £136.60.

Case Study 6

Mrs G is an elderly blind woman. She was visited at her home by a sales representative from a bed company. She thought he had come about a prize offer from the company. He proceeded to sell her an expensive orthopaedic bed despite the fact that her medical condition makes it impossible for her to use a bed. Students went out to visit her in her home and took her instructions. The students wrote a letter to the company who agreed to reimburse Mrs G. The students have reported the company to Trading Standards.

Case Study 7

Students represented a group of parents of disabled children whose home transport was removed by a local authority. Following a series of complaints brought by students on their behalf to the Local Government Ombudsman in 2007, the case worker dealing with the matter decided that there was no maladministration in any but two out of ten cases. The Student Law Office challenged these decisions and notified the Ombudsman of intention to commence judicial review. The matter was then considered by the chief ombudsman of the northern region who decided personally to reinvestigate all cases in January 2008. Her investigation is still ongoing.

Case Study 8

Mr L was issued with numerous parking tickets for parking on a street where double yellow lines had temporarily been removed pending re-painting. Mr L pleaded not guilty but missed his trial date and was convicted in his absence. Some considerable time after the deadline for appeal had passed, Mr L came to the Student Law Office for help in appealing this decision. The students researched his case and successfully applied to appeal the case out of time to the Crown Court. The case was listed for an appeal hearing and the students gathered evidence to support Mr L. When the evidence was submitted to the Prosecution, they decided not to oppose the appeal and the conviction was overturned.   

Case Study 9

Ms J booked first class tickets for herself and her husband to Jamaica (at considerable expense) as a treat following Mr J's lengthy illness. Instead of first class, they were given economy seats but the travel agents, the airlines and the consolidator would not accept responsibility. With the help of the Student Law Office, Ms J pursued a county court case and obtained judgement in her favour, recovering compensation.

Case Study 10

Company R were a learning and development consultancy offering assistance to business including the provision of staff training and help with recruitment. The students advised Company R on issues such as share buy-back, employee rights, removal of directors, and explained how each of these could be carried out.

Case Study 11

Mrs J took a horse out on loan on behalf of her daughter; the horse became seriously ill as a result of a disease and subsequently died. Mrs J was then taken to court for recovery of veterinary bills which were incurred as a result of the horses illness and paid for by the owner of the horse. The students acted for Mrs J who was the defendant in the case and disputed agreeing to pay the veterinary bills. The students researched the legal issues involved in the case, and represented Mrs J on both preliminary issue and full trial of the case in the small claims court. The Student Law Office successfully defended the claim on behalf of Mrs J.    

Case Study 12

Just before Christmas, Mrs P found that £2000 was missing from her bank account. She discovered that unknown to her; a man claiming to be her landlord had made a claim against her, which she had not received as it went to a previously rented property. He had therefore obtained judgment, and frozen funds in her bank account, to satisfy the judgment.

Two students in the Student Law Office acted for Mrs P in the proceedings, helping her to get the judgment set aside by making the application and representing her at that hearing. They then prepared a defence and counterclaim. As a result, the landlord dropped his claim against her, and the money was subsequently returned to her bank.

Case Study 13

Last year the Student Law Office successfully assisted Ben Hoare Bell LLP in a judicial review of the decision of the coroner for Durham not to reopen an inquest. This involved a GP, previously acquitted at a criminal trial of murder, who was alleged to have administered large and inappropriate doses of morphine resulting in patient deaths. One Student Law Office bar student drafted submissions on whether the Human Rights Act pertains to GPs. The barrister used his written submissions in this respect almost verbatim.

We instructed a barrister for the inquest, Oliver Longstaff of Parklane Plowden. The students assisted the barrister with the inquest every day. We represented one family, and the barrister carried out all of the work for the Student Law Office on a pro bono basis. The coroner found, inter alia, that the administration of morphine in our client's parent's case was not clinically justified and more than minimally contributed to his death.    

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law case study examples uk

law case study examples uk

Eight cases from across history which still shape the law today

law case study examples uk

Senior Teaching Fellow, School of Law, University of Surrey

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New students are streaming into law schools across the country. But to become the next generation of lawyers, judges and activists, they’ll first need to read through a mountain of case law. In case law, judges define what acts of parliament actually mean, explain the common law and resolve disputes between citizens, organisations and sometimes state institutions.

Newspapers occasionally publish a list of the most important cases for students to be aware of. But it’s not just students who could benefit from learning about the law – after all, cases decided hundreds of years ago can set the precedent for decisions that the courts in England and Wales make today.

Here’s my pick of some of the most important cases throughout history: ones that can teach us all something about how the law mirrors social and political attitudes, while revealing the principles and patterns that make up the country’s version of justice.

law case study examples uk

1. The Case of Proclamations, 1610

Over 400 years ago, the chief justice, Sir Edward Coke, ruled that King James I could not prohibit new building in London without the support of parliament. King James believed that he had a divine right to make any laws that he wished. But the court opposed his view, and decided that the monarchy could not wield its power in this arbitrary way.

By the end of that century, the Glorious Revolution laid the foundation for today’s constitutional monarchy, whereby whoever is king or queen respects the law-making authority of the elected parliament.

2. Entick v Carrington, 1765

Author and schoolmaster John Entick was suspected of writing a libellous pamphlet against the government. In response, the secretary of state sent Nathan Carrington, along with a group of other king’s men, to search Entick’s house for evidence. Entick then sued the men for trespass.

The court decided that the secretary of state did not have the legal authority to issue a search warrant, and therefore Carrington had trespassed. This case reflects the principle that “no man is above the law” – not even the secretary of state. To this day, law enforcement agencies may only do what the law allows.

3. R v Dudley and Stephens, 1884

In this case, the survivors of a shipwreck who killed and ate the youngest and weakest crew member were prosecuted for murder . Their defence was based on “necessity” – that they needed to eat the boy, as they were unlikely to survive and the boy probably would have died anyway.

law case study examples uk

It may have been a “custom of the sea” that cannibalism was allowed under such circumstances, but the defendants were found guilty on the basis that all life is equal – the law expected them to die, rather than kill another.

But the public was sympathetic to the defendants, and their sentences were later commuted from death to six months imprisonment. The boy was named Richard Parker, as is the tiger in the Man Booker prize-winning novel Life of Pi .

law case study examples uk

4. Carlill v Carbolic Smoke Ball Co, 1893

Mrs Carlill sued the manufacturer of the carbolic smoke ball – a device for preventing colds and flu – which had promised a reward of £100 for any one catching flu following the use of its product but then refused to pay out.

The court decided that this promise, together with Mrs Carlill’s use of the product as directed, amounted to a legally binding contract and she was entitled to the reward. The case explores many of the principles that must be present in modern day contracts, such as offer and acceptance, before we can make legally enforceable agreements between each other. Yet this most famous of cases may never have been brought at all, had Mrs Carlill not been married to a solicitor.

5. Donoghue and Stevenson, 1932

In a case originating in Scotland, Mrs Donoghue was given a bottle of ginger beer which allegedly contained the decomposed remains of a snail. She claimed to have suffered shock and gastroenteritis as a result. But as she had not bought the drink herself, she had no contract on which to sue.

law case study examples uk

Nevertheless, the court extended the law of negligence to require reasonable care towards those likely to be affected by a person’s or company’s actions. Was there really a snail? We don’t know for sure, as Mr Stevenson died before the evidence could be heard.

6. Fagan v Metropolitan Police Commissioner, 1969

To be guilty of a criminal offence, there often needs to be unlawful act accompanied by a guilty state of mind, such as a criminal intent. So, having accidentally driven his car onto a policeman’s foot, did Mr Fagan commit an assault when he decided not to remove it?

Mr Fagan suggested not because he had no criminal intent at the time the car first went on to the foot, but the court held that deciding to leave the car there was a combination of act and intention, which meant he was guilty of the offence .

7. R v R, 1991

The law is constantly evolving to meet changing social attitudes. In this case, the House of Lords swept away the common law rule that a man could not be guilty of raping his wife. The previous rule was based on a 1736 pronouncement that:

By their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract.

The House of Lords ruled that for modern times, marriage is a partnership of equals and any other suggestion was “quite unacceptable”.

8. The Belmarsh case, 2004

The Human Rights Act empowered judges to review acts of parliament, to check if they are compatible with the European Convention on Human Rights. Using this power, the House of Lords ruled that a statute which allowed terrorist suspects to be detained indefinitely without trial breached the suspects’ human rights.

The case shows how modern courts ask not just whether government action is authorised by law, but also whether it is compatible with our rights. Parliament amended the law as a result.

law case study examples uk

In 2016, Gina Miller brought a case against the UK government, claiming that it couldn’t trigger Article 50 – and therefore Brexit – without an act of parliament. Ruling in Miller’s favour in 2017, the Supreme Court drew on the 1610 case of proclamations. So there’s no doubt that even the oldest cases still have the power to shape society today.

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Lord Denning

The essential cases every law student should know

Cases capture human stories, shape public debate and establish new expectations of the state. Their wider effect can reflect society's consciousness but often lead to new laws. Cases and judges' decisions are a law student's bread and butter. Here are a few you will come across:

Care for thy neighbour:

In 1932 Mrs Donoghue launched the modern law of negligence, after finding her ginger beer less than appealing. Known to generations of law students as the "snail in the bottle" case, it is best known for Lord Atkin's famous neighbour principle. In declaring we should take reasonable care to avoid harm to those we foresee can be affected, he established when we owe duties to each other. Accidents and injuries were forever to be reshaped into claims and compensation.

Foreign detainees

Known as the Belmarsh decision , there is no modern case that better sets the boundary between national security and civil liberties. Decided by a panel of nine law lords, the 2004 decision became an important milestone in judges protecting both the rule of law and human rights. In a challenge to the Labour policy of indefinitely detaining foreign terrorist suspects without charge, the majority declared the British state acted illegally and in a discriminatory way. In his powerful rejection, Lord Hoffman stated "The real threat to the life of the nation… comes not from terrorism but from laws such as these."

Spanish fisherman

Providing the legal backdrop to a decade of EU-scepticism is the 1991 case of Factortame , this case on the rights of Spanish fisherman to fish in British waters is a mainstay on any public law course. It confirmed the priority of European laws over UK acts of parliament and thus struck a blow against parliament's legal supremacy. In so doing it provoked much constitutional debate about the extent of EU legal powers - and Britain's relationship with Europe as a whole.

Officially the longest case in English legal history, this ten year David v Goliath libel battle exposed the price of justice when corporations take on individuals. The fast food giant sued green campaigners David Morris and Helen Steel for libel over a stinging pamphlet criticising the their ethical credentials. McDonalds walked away with both a win and a PR disaster. The European court of human rights later declared in 2005 that the pair, who were unfunded and were representing themselves, had been denied their right to a fair trial.

Jodie and Mary

In the year 2000 the plight of conjoined twins made front page news . The question was whether it was justified to separate and knowingly "kill" the weaker Mary in order to save her stronger sister Jodie, given both were destined for a premature death. In spite of parents favouring non-separation, doctors wanted a declaration that such an operation would be lawful. In a maze of ethical and legal conflicts, Lord Justice Ward rather hollowly declared that "this is a court of law, not a court of morals."

After admitting to sleepless nights, the judges allowed the doctors to separate. Lord Justice Brooke declared the situation as one of necessity, allowing the option of a lesser evil. The stronger twin survived and made a full recovery. The thankfully rare case, otherwise found in philosophy debates, demonstrates the relationship between law and morality, perhaps one of the first questions on a legal theory course.

Domestic abuse

A year after marital rape was declared rape in 1991, came the case of Kiranjit Ahluwalia , who had been abused for over a decade by a violent husband. She was convicted of murder after setting her husband alight as he slept. In recognising long-term domestic abuse and the possibility of a slow-burn anger that led to her snapping, the case was a cause célèbre for feminist and domestic abuse groups. Though finally the decision in the end was based on diminished responsibility, it was seen as a benchmark for tackling the gender bias in the criminal law and raising public awareness of domestic abuse. Ahluwalia's conviction was reduced to manslaughter, and she was freed.

International human rights law received a global TV audience in 1998 after former Chilean dictator General Pinochet was arrested in London. Under the rules of universal jurisdiction, he was detained following a Spanish extradition request facing charges of crimes against humanity. The law lords declared that there could be a limit to the immunity enjoyed by heads of states. Though Pinochet was never extradited, the case sent out a strong message about accountability for leaders who commit human rights abuses,before the international criminal court was established.

The case is also well known among lawyers when after the first hearing it was disclosed that that one of the ruling law lords, Lord Hoffmann, was a director of Amnesty International, a party to the cases. The entire hearing had to be repeated to show that "justice must not only be done but be seen to be done."

The internet age

Injunctions, twitter, privacy and the extra marital activities of footballers were all the rage in early 2011. Nothing struck up more attention than the application for an injunction by Ryan Giggs against the Sun. His name was widely tweeted and the situation became more farcical when MP John Hemming revealed his name in the House of Commons. The debate forced the law to react to an age of the internet and social media. The case followed a long line of celebrity court battles in the 2000's, and became another marker in the debate between balancing freedom of expression and the right to a private life.

From across the Atlantic arguably no case better demonstrates the political and social impact of judicial decisions. The landmark decision in 1973 upheld a woman's right to an abortion. Synonymous with abortion in the USA. Hundreds of thousands march on the US supreme court on the anniversary of the decision each year.

Any of Denning's cases

In our common law system, many judges leave their mark on a particular area of law. However clichéd, no judge will live longer in the memory of law students than the controversial Lord Denning. He demonstrates the power of personality in a subject that is often seen technical, dry and rule-based. In the words of Lord Irvine, "the word Denning became a byword for the law itself." Denning reminds us that all cases are eventually decided by individuals who are made up of values and personal perspectives that make them who they are. Students , you are encouraged to think, debate and learn the law in the same spirit. Good luck.

Are there any need-to-know cases missing from this list? Add them in the comments below.

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UK Human Rights Blog

UK Human Rights Blog - 1 Crown Office Row

10 cases that defined 2020

24 December 2020 by Jonathan Metzer

law case study examples uk

This time last year I wrote that 2019 had been “perhaps the most tumultuous period in British politics for decades” . Little did I know what 2020 would have in store.

The Covid-19 pandemic has caused loss, suffering and anxiety across not only the UK but almost all of the globe. At the UK Human Rights Blog, we feel deep gratitude to the doctors, nurses, carers and essential workers who have kept society going in what has been a deeply difficult year for so many of us.

In light of this, it is perhaps harder to summon the usual festive spirit that graces the approach of the holiday period — particularly as so many of us will be separated from our loved ones. And yet, perhaps it makes holding onto some spirit of joy all the more necessary.

Writing the article summing up the legal developments of the year is one of the highlights for me as commissioning editor of this blog. Let us embark together on a tour of what the courts had to say over the last 12 months. As ever, it has been a very interesting year.

1. The challenge to the Covid-19 lockdown

Dolan & Ors, R (On the application of) v Secretary of State for Health and Social Care & Anor [2020] EWCA 1605

Well, we had better look at the major Covid-19 decision first.

The appellants (led by 1 Crown Office Row’s  Philip Havers QC)  challenged lockdown regulations made in response to the pandemic on 26 March 2020.

Their argument was that the Regulations imposed sweeping restrictions on civil liberties which were unprecedented and unlawful because: (i) the Government had no power under the legislation they used to make the Regulations; (ii) the Regulations were unlawful under ordinary public law principles; and (iii) the restrictions violated a number of rights under the European Convention on Human Rights (ECHR).

The High Court refused permission to apply for judicial review and the appellants appealed to the Court of Appeal. Although it was prepared to hear the case (despite the Government’s submission that it had become academic), the Court of Appeal dismissed the claim too.

First, it was held that the Government had the power to impose general and specific restrictions on the population and that the Civil Contingencies Act 2004 also provided for the making of emergency regulations if existing legislation could not be relied upon without risk of serious delay.

Secondly, the Court found that the Secretary of State had not unlawfully fettered his discretion, as at all times it has been possible for those who disagreed with the Government (including in Parliament and wider society) to make representations to invite it to ease restrictions. There were no grounds to argue that these had not been taken into account.

Finally, as to the human rights challenge, it was held that the restrictions were not incompatible with the right to liberty (as there was no deprivation of liberty on the facts), the right to private and family life (as there was no general principle that permission should be granted if it was arguable that there had been an interference with family life), the right to peaceful assembly (as the Regulations provided for a general defence of “reasonable excuse” to contraventions of the prohibition of gathering in public), the right to property (as there is a wide discretion afforded to the executive to balance this right against other considerations), or the right to education (as there was no order that schools had to close or education had to cease).

We covered the issues in a number of pieces, with the Court of Appeal’s decision explained here and the High Court’s decision here .

For the interested reader, there is also wider discussion arguing the case on the issues one way here , here and here and the other way here and here .

2. Shamima Begum

Begum v Special Immigration Appeals Commission and the Secretary of State for the Home Department   [2020] EWCA Civ 918

Early last year, after ISIL was dislodged from Raqqah, Shamima Begum was discovered in a refugee camp in Syria. When she expressed a wish to return home to Bethnal Green, the Government wasn’t welcoming. She had left to join ISIL and she was considered a serious risk to national security. Her British citizenship was removed and she was barred from entering the UK.

In February, the Special Immigration Appeals Commission (SIAC) held that although in her current circumstances she could not play any meaningful part in her appeal against the decision to deprive her of citizenship, this did not mean that she should be allowed back into the UK to take an active part in the appeal.

However, in July the Court of Appeal held that fairness required that she be permitted to return to participate in the appeal. The Court held that as her appeal would not be fair or effective if she was not permitted to return, pressing on with the appeal would be “unthinkable” (and would compound the unfairness), and staying (pausing) the proceedings was also wrong, as it would render the decision effectively incapable of challenge and failed to take account of ongoing risks that she was suffering mistreatment.

Whilst the Court recognised the Government’s national security concerns, it was considered that these could be managed in the UK by way of e.g. arrest and remand in custody pending trial, or if that were not feasible, through a TPIM (Terrorist Prevention and Investigation Measure) restricting her movement, contacts and residence.

The case was then heard by the Supreme Court in November and judgment is awaited. Angus McCullough QC of 1 Crown Office Row is acting as her Special Advocate in the proceedings.

We covered the Court of Appeal’s decision here and the decision of SIAC here .

3. Vicarious Liability

Barclays Bank v. Various Claimants   [2020] UKSC 13 and WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12

The boundaries of vicarious liability had been expanding in recent years, but in April a pair of decisions from the Supreme Court indicated that there may now be a retrenchment.

The Barclays case concerned Dr Bates, a self-employed practitioner who undertook unchaperoned medical examinations at his home and provided a medical report which was a prerequisite for each claimant to be employed by the bank. The claimants, represented by Lizanne Gumbel QC and Robert Kellar QC of 1 Crown Office Row, sued Barclays for damages for a very large number of sexual assaults allegedly committed by Dr Bates.

In the Morrisons case, an employee, Andrew Skelton, became very disaffected after being disciplined for minor misconduct and in response waged a criminal campaign of vengeance against his employer, sending workforce payroll data to the newspapers. The claimants were some of the affected employees and they brought proceedings against Morrisons for damages.

Although the claimants had succeeded in both cases in the Court of Appeal, the Supreme Court held that:

  • As Dr Bates was not at any time an employee of the Bank, was paid a fee for each report (rather than a retainer), was free to refuse to do an examination and was in business on his own, he was not an employee and nor was he close to being an employee of the Bank. Therefore, Barclays was not vicariously liable.
  • The necessary ‘close connection’ to the work that Mr Skelton had been employed to do did not exist. Just because his job gave him the opportunity to commit these acts, this was not enough. His conduct, done for highly personal reasons, was outside the scope of his employment: in common parlance, he went off on a ‘frolic of his own’.

However, some commentators argue that these decisions raise new questions about how the legal principles should be applied. We covered the decisions here and here and also published an extended discussion of the issues here .

4. What is a ‘mother’, in law? Court of Appeal has its say

R (McConnell and YY) v Registrar General   [2020] EWCA Civ 559

In May, the Court of Appeal revisited the tension between the wish of a transgender person to have their legal gender recognised on their child’s birth certificate and the right of the child to discover the identity of their biological mother.

Alfred McConnell is legally recognised as male, as confirmed by a Gender Recognition Certificate issued in April 2017. Subsequent to his recognition as male, he became pregnant through inter-uterine insemination using donor sperm and gave birth to child YY. When he came to register the birth, the Registrar General determined that Mr McConnell would have to be registered as YY’s “mother”. This was challenged on the basis of statutory interpretation and the ECHR (particularly the right to private life, with the prohibition on discrimination also being relied on at first instance).

However, the Court ruled that as the person who gave birth to the child, the appellant must be registered as the “mother” on the child’s birth certificate, even thought he was a transgender male. It was held that this was not a breach of Article 8.

We covered the decisions of the Court of Appeal here and the High Court here . The case is also discussed on LawPod UK here .

We also published a two-part analysis proposing changes to the law in light of this case here and here , and a discussion of the related decision that the lack of a gender-neutral option on a passport is not a breach of rights here .

5. Twitter, trans rights and the role of the police

R (Miller) v The College of Policing & The Chief Constable of Humberside  [2020] EWHC 225 (Admin)

In February, the Administrative Court considered the case of a claimant who tweets extensively on the issue of trans rights. Although he describes himself as “gender critical”, his tweets are considered by many to be derogatory and transphobic.

Humberside Police decided to record an incident as a non-criminal hate incident and a plain clothes constable attended the claimant’s work to speak to him, and in a phone call that resulted, warned the claimant that if he ‘escalated’ matters, the police might take criminal action. No explanation of what escalation meant was given.

The High Court held that while the mere recording of a hate incident did not interfere with the claimant’s rights, the police had gone further. In going to his workplace to speak to him and warning him about the risk of criminal prosecution, this could deter him from expressing himself on transgender issues, constituting a disproportionate and unlawful interference with his right to freedom of expression.

We covered this case here , in an analysis which discusses in detail many of the difficult issues in play.

6. ‘One of the most controversial questions which the law of human rights can generate’

AM (Zimbabwe) v Secretary of State for the Home Department   [2020] UKSC 17

So said Lord Wilson, giving a landmark judgment which changed the law, expanding the circumstances in which a person may resist being removed or deported from the UK on medical grounds.

The appellant is a 33-year old man from Zimbabwe who has resided in the UK since 2000 but was subsequently placed under a deportation order for serious criminal offending, including a 9 year prison sentence for possession of a firearm and possession of heroin with intent to supply.

However, he has also been HIV positive since 2003. Whilst this condition is being kept under control through antiretroviral medication available in the UK, he argued that it is doubtful whether he would be able to access the necessary drugs in Zimbabwe there, leaving him prey to opportunistic infections which could lead to his death. It is contended that deporting him would constitute a breach of the prohibition on inhuman and degrading treatment under Article 3 ECHR.

The Supreme Court held that the proper approach to Article 3 was modified by the European Court of Human Rights in  Paposhvili v Belgium [2017] Imm AR 867 . The relevant test now is whether removal would give rise to a real risk of a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering, or to a substantial reduction in life expectancy. This does not require that death be imminent.

The case was remitted back to the Upper Tribunal for a panel which would hopefully include the President to consider whether the anticipated further evidence in this case met this test.

We covered the Supreme Court’s decision here and the decision of the Court of Appeal here .

7. Can the Government provide evidence that will facilitate the death penalty being imposed?

Elgizouli v Secretary of State for the Home Department   [2020] UKSC 10

The Divisional Court had said ‘yes’. But in March, the Supreme Court said ‘no’.

Shafee El Sheikh is alleged to have been part of a British group of ISIL terrorists (the so-called “Beatles”), suspected of murdering British and American citizens in Syria. El Sheikh and another suspected terrorist were captured in January 2018. After the Crown Prosecution Service determined that it had insufficient evidence to prosecute them, the US decided to bring criminal proceedings.

As it usually would in a case such as this, the UK Government requested an assurance from the US Attorney General that information provided by the UK to assist the investigation would not be used in a prosecution that could lead to the imposition of the death penalty. But on this occasion the US refused to provide a assurance. The Home Secretary then decided that because this was a “unique” and “unprecedented” case, it was in the UK’s national security interests to accede to the request nonetheless.

Although the Divisional Court dismissed the challenge to this decision, the Supreme Court held that although there was no established common law principle which prohibited the sharing of information in a case such as this, the relevant requirements for transfer of personal data as set out in the Data Protection Act 2018 had been breached.

Lord Kerr, who passed away at the start of this month (see obituaries here and here ), dissented: he would have gone further and held that there was a common law principle against the facilitation of the death penalty. In his view, this was the “natural and inevitable extension” of the prohibition of extradition or deportation without death penalty assurances.

(We covered another important dissent by Lord Kerr in a different case which has led in that case to a change in the law here .)

Following the Supreme Court’s decision, the US Attorney General, William Barr, announced that the death penalty would not be sought. The High Court then permitted the UK to provide the relevant information to the US authorities .

We covered the Supreme Court’s decision in detail here .

8. Costs of commercial surrogacy arrangements abroad

Whittington Hospital NHS Trust v XX  [2020] UKSC 14

On the same day as the decisions in Barclays and Morrisons , the Supreme Court also held that a defendant hospital trust liable in damages for clinical negligence must pay for the cost of a commercial surrogacy arrangement abroad despite such arrangements being unlawful in the UK.

As a result of admitted negligence, the claimant developed avoidable cervical cancer. The resulting treatment destroyed her ability to bear children herself, a truly devastating blow to her. Prior to the treatment, and in anticipation of its inevitable consequences, eight mature eggs had been collected and stored. The claimant wished to enter into a commercial surrogacy arrangement in the USA (as it is not permitted here) and she sought the cost of doing so in damages.

At first instance it was held that the Court of Appeal’s decision in  Briody v St Helen’s and Knowsley AHA (Damages and Cost)  [2001] EWCA 1010 was binding to the effect that this could not be claimed as it was contrary to public policy.

However, the Court of Appeal overturned this decision and found for the claimant. By a 3-2 majority, the Supreme Court upheld this decision.

Lady Hale, for the majority, revisited her own decision in Briody almost 20 years before. She emphasised the restitutionary purpose of damages in tort and held that there had been significant developments since the previous decision, including the increased role of third parties in surrogacy arrangements, developing social attitudes to surrogacy, changing views as to the definition of what constitutes a family and advances in techniques of assisted reproduction. She held that the Briody decision was “probably wrong then and is certainly wrong now” . The claimant was entitled to recovery the costs of commercial surrogacy in full.

We covered the decision here (including discussion of both the majority and dissenting views) and on LawPod UK here .

9. Suicide and unlawful killing at inquests

R (Maughan) v Her Majesty’s Senior Coroner for Oxfordshire   [2020] UKSC 46

Last month, the Supreme Court gave judgment on the question of the standard of proof to be applied at an inquest where the death might have been caused by suicide or unlawful killing.

Traditionally, in order to be satisfied that either conclusion should be returned the criminal standard of proof was required. However, that all changed with the judgment of the Divisional Court and then the Court of Appeal in this case. This longstanding practice was held to be devoid of a sound legal basis. Given that the inquest was not itself a criminal proceeding, it was decided that the civil standard ought to be applied to both conclusions.

The Supreme Court has now confirmed that that is right, by a majority of 3 to 2. The relevant Note in the Coroner’s Rules that suggested to the contrary was held to be not a specification of a standard of proof, but instead a reflection of what was then (incorrectly) understood to be the legal position.

The result is that all forms of conclusion in the Coroner’s Court, whether narrative or short form, are to be rendered on the balance of probabilities.

We explained in detail the decisions of the Supreme Court and the Divisional Court here and here .

10. The proposed third runway at Heathrow

R (Friends of the Earth et al) v Heathrow Airport Ltd   [2020] UKSC 52

And finally, only last week the Supreme Court reversed a decision of the Court of Appeal and held that the Government policy on airport expansion at Heathrow was not unlawful on climate change grounds.

The policy decision under challenge was an Airports National Policy Statement (ANPS) made in 2018, which set out the decision-making framework within which further planning decisions on airport expansion would be taken.

In February, the Court of Appeal agreed with the claimants that the Government had failed to take into account the Paris Agreement on Climate Change, which was ratified by the UK in November 2016. This international Agreement commits parties to restrict temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.

The Government had decided not to appeal (perhaps signalling a change in policy), but the case was continued by Heathrow Airport. This led David Hart QC to characterise the appeal in his article as ‘Hamlet without the Prince’.

I do not know whether Heathrow Airport is Horatio, the Ghost or Ophelia (!) but regardless the Supreme Court upheld its appeal. Even though the Paris Agreement was not mentioned in the ANPS, it was held to have been properly considered in the background behind this framework document. Says David Hart QC:

the difference between the CA and the SC turned on their assessment of the rather opaque documents … The CA smelt a rat … The SC read things differently: even though Paris was not mentioned in the ANPS, it lurked there.

This year, for the first time in five years, the UKHR Blog received over a million views: the second largest number in our history. We are very grateful for your continued interest and support.

I hope you have an enjoyable and restful break and that the coming months bring success for the Covid-19 vaccines and a much happier 2021 .

Jonathan Metzer

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thank you for the information

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Great article!! Regarding surrogacy, I found a Ukrainian law translated into English. I advise anyone interested to read it. https://www.mother-surrogate.com/pdf/surrogate_motherhood_law.pdf

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Re: (1) R (McConnell and YY) v Registrar General [2020] EWCA Civ 559, [2020] 3 WLR 683 and (2) R (Christie Elan-Cane) v Secretary of State for the Home Department with Human Rights Watch intervening [2020] EWCA Civ 363, [2020] 3 WLR 386 (mentioned at the end of the above note of the McConnell and YY case) It may be of interest to note that in November the Supreme Court considered applications for permission to appeal in these two cases. Permission was refused in McConnell and YY, but granted in Elan-Cane (except in relation to grounds 5 and 7): https://www.supremecourt.uk/news/permission-to-appeal-from-the-uk-supreme-court-nov-2020.html .

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The key English contract law cases of 2020

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It has been a most unusual year. In response to the global pandemic, the Cabinet Office issued Guidance in the summer, encouraging contractual parties to act “responsibly and fairly” in the performance and enforcement of their contracts.

In a similar vein, the British Institute of International and Comparative Law (“ BIICL ”) has published three Concept Notes, the first of which noted that a plethora of disputes from the pandemic would be destructive to good contractual outcomes and the effective operation of markets. However, the BIICL also recognised that there are some cases which do require the involvement of the courts.

Inevitably then, there have been disputes which have made it to the courts this year: some which started before the pandemic hit; some borne of the pandemic itself (notably, the recent insurance business interruption case, which you can read about here   1 , and a case concerning material adverse effect clauses, which you can read about here ); and others that presumably just could not be resolved consensually. What can we learn from the decisions in these disputes? In this briefing we review this year’s important contract cases and consider what commercial parties can learn from them.

1. At the time of writing, we note that the Supreme Court heard a leapfrog appeal from the decision of the High Court from 16-19 November 2020. The judgment is pending.

Implied duties of good faith: plead at your peril.

Last year we noted that the law was still in a state of flux. One year on, is it any clearer when a contract will be subject to an implied duty of good faith? It’s fair to say the law still “has not yet reached a stage of settled clarity” ( Cathay Pacific Airways Ltd v Lufthansa [2020] EWHC 1789 ) with a continuing split between the two visions of this duty, namely:

  • that there is a class of “relational contracts” that are subject to a duty of good faith as a matter of law ( Essex County Council v UBB Waste (Essex) Ltd [2020] EWHC 1581 ), or
  • that such a duty will only arise where the strict tests for the implication of terms in fact are satisfied ( Taqa Bratani Ltd & Ors v Rockrose UKCS8 LLC [2020] EWHC 58 ).

Around these central themes, there have been various clarifications to the law. For example, in Morley v Royal Bank of Scotland Plc [2020] EWHC 88 (Ch) the High Court rejected a borrower’s argument that the bank had an implied duty to act in good faith towards it under a loan agreement. The Court held that this was not a relational contract of any kind but an ordinary loan facility agreement. The bank’s decision to call in the loan was the exercise of a contractual right, not a discretion (subject to the Braganza duty). The bank’s power to obtain a revaluation of the charged assets and its power to charge a default interest rate were discretions which had to be exercised for purposes connected to the bank’s commercial interests and not so as to vex the borrower maliciously (following Property Alliance Group Ltd v Royal Bank of Scotland plc [2018] EWCA Civ 355 ). On the facts, they had been exercised properly.

Similarly, the courts continue to treat references to good faith in some clauses as evidence that a wider overarching duty of good faith should not be implied into the agreement (see Russell v Cartwright [2020] EWHC 41 (Ch) ).

Perhaps most important is the nature of any duty of good faith. While this is sometimes described in broad terms, for example to “adhere to the spirit of the contract, to observe reasonable commercial standards of fair dealing, to be faithful to the agreed common purpose, and to act consistently with the justified expectations of [the other party]” ( CPC Group Ltd v Qatari Diar Real Estate Investment Company [2010] EWHC 1535 ), the courts have recently made it very clear that the assertion that a party has not acted in good faith is a serious allegation.

In Essex County Council v UBB Waste (No. 3) [2020] EWHC 2387 (TCC) the courts suggested this was, put colloquially, an allegation of “sharp practice” . To make such an allegation without proper foundation was out of the norm and justified an order for costs on an indemnity basis.

What does this mean for you?

Good faith is still an evolving area in English law. Until we have greater clarity, it is worth considering whether your contract might be classified as “relational” or whether a duty of good faith might arise under the rules for the implication of terms in fact. In either case, you might want to address the matter expressly. Finally, allegations of a breach of good faith are serious and should not be made without foundation, so plead at your peril.

Excusing liability

In times of crisis, contractual parties may have even greater reason to examine those parts of their contracts which may exclude or limit liability or offer defences to breach (such as force majeure provisions).

Force majeure and a variety of limitations

A recent dispute concerning the 2011 riots in London put all of these provisions under the spotlight. The High Court found that a warehouse operator had failed to use reasonable skill and care to protect the contents of the warehouse (CDs and DVDs), which were destroyed by fire during the riots. Could the operator rely on any contractual terms to excuse or limit its liability?

It was not able to rely on the force majeure clause since the fire was not a circumstance “beyond [its] reasonable control” . The Court found that, if it had acted reasonably, it could and should have prevented the fire.

Since the claims (for loss of profits, business interruption costs and increased cost of working, suffered as a result of the fire) were all direct (in that they were exactly the type of loss that one would expect to result from the breach), the clause excluding liability for “indirect and consequential loss” did not apply. A cap on liability for damage to goods was no protection either as the claims were not for damage to the goods themselves. However, an overall – aggregate – cap on all liability (of £5 million) was effective.

What does this mean for you? These types of clauses are very topical in the current uncertain times and always need to be drafted carefully. This case reminds us that the position of commercial parties will depend upon the exact terms of the contracts, applied to the facts of the situation.

Where can you read more? See 2 Entertain Video Ltd & Ors v Sony DADC Europe Ltd [2020] EWHC 972 (TCC) .

Indirect and consequential loss

Another recent case highlights just how useful an exclusion of “indirect and consequential loss” could have been, if only it had been included.

A contractor terminated a construction contract for breach by its employer (on the basis that the latter had failed to provide a prepared site for the water treatment plant that was to be built). The Board of the Privy Council held that the contractor was entitled to recover, as damages for breach, the loss of profits that it would have made under an operation and maintenance contract for the same plant had it been built. These losses were not too remote (and fell within the second limb of Hadley v Baxendale [1854] EWHC Exch J70) as they were within the reasonable contemplation of the parties to the construction contract when that contract was entered into (on the same day as the operation and maintenance agreement).

What does this mean for you?  When entering into related contracts, it is vital to consider the exact relationship between them, including the consequences of a termination, breach or force majeure scenario arising under one of them and the knock-on effects this might have. Exclusion of liability under a related contract might be achieved by an exclusion of indirect and consequential loss (depending upon the specific drafting) or expressly.

Where can you read more? See AG of the Virgin Islands v GWA [2020] UKPC 18 . 

Loss of goodwill

It is also relatively common to see clauses exclude liability for “loss of goodwill”. The Court of Appeal decided that, in a commercial context, the ordinary legal meaning of “goodwill” was the good name and public reputation of the business concerned. If a contract intends the term to have an unusual or technical meaning (such as the accounting concept of goodwill) then that should be spelt out expressly.

This decision highlights how important it is to agree the meaning of (and clearly define) terms in agreements, particularly where something different from the ordinary legal meaning is intended.

Where can you read more? See Primus International v Triumph Controls [2020] EWCA Civ 1228 .

What is a reasonable condition of consent (and what is not)?

In a recent decision, the High Court considered the case law on contractual consent provisions, which often state that one party “shall not unreasonably withhold consent” to whatever is being requested.

If we call the party asking for consent, Party A; and the party being asked to give consent, Party B, the Court found that the authorities drew the following distinction:

  • while it may be legitimate for Party B to impose a condition to protect or compensate it for the impairment of a benefit it enjoys under the contract which would result from giving consent,
  • that is completely different to imposing a condition which would impair a right which Party A currently enjoys under the contract.

The contract was for the onshore pipeline transportation of hydrocarbons produced in the North Sea. The producer (Party A in our analogy) requested consent to amend its estimated production profile for transportation for the period from January 2021 to December 2040. The pipeline owner (Party B) stated that it was only willing to consent to the amendment if Party A agreed to an increase in the tariff payable under the agreement. Contractually, Party B was not entitled to “unreasonably withhold” its consent to the amendment. Was Party B therefore acting contractually or non-contractually by seeking to impose a tariff rise as a condition to giving consent?

The Court found that Party A was both entitled and obliged to tender its hydrocarbons for transportation at the contractual tariff for the duration of the agreement, which would continue until terminated on one of the contractual bases set out in the agreement. The terms did not limit that entitlement and obligation to the period up to 2020. In those circumstances, it would be inconsistent with the terms and scheme of the agreement if Party B was entitled to make its consent to the amendment conditional on a fundamental revision of the parties’ bargain in the form of a new tariff. Party B was acting non-contractually.

This decision clarifies that a condition might be reasonable as a prerequisite to giving consent (e.g. to make up for something lost by the consenting party as a result of the change). However, a party cannot use a consent request as an opportunity to renegotiate terms or impose an unrelated change on the other party. It may be preferable to make this clear in the drafting of any relevant provision, by stating that consent cannot be unreasonably withheld or delayed, or made subject to additional conditions.

Where can you read more? See Apache North Sea v INEOS FPS Limited [2020] EWHC 2081 (Comm) .

How will the Courts determine the law applicable to an arbitration clause?

The Supreme Court recently provided the answer to this question in a landmark decision.

An arbitration clause is generally regarded as legally distinct from the main agreement in which it is contained (and the Rome I Regulation excludes arbitration and choice of court clauses from its scope). In England, therefore, common law conflict of laws rules apply to determine the law applicable to the arbitration agreement. Under those rules that will be: (i) the law expressly or impliedly chosen by the parties; or (ii) in the absence of such choice, the law “most closely connected” to the arbitration agreement.

Where the parties have not specified the law applicable to the arbitration agreement, but they have chosen the law to govern the contract as a whole, this choice will generally also apply to the arbitration agreement, rather than the law of the seat of the arbitration (as the Court of Appeal had held). But where the parties have made no choice of law to govern the arbitration agreement, either specifically or by choosing the governing law of the contract, the closest connection test will, in general, lead to the arbitration agreement being governed by the law of the seat of arbitration.

The potential for issues regarding what the applicable law of an arbitration clause is arise most frequently where the law governing the main contract and the place of the seat do not “match”. To remove the room for debate, parties, where the seat of arbitration is in England and the law of the contract is not English, therefore frequently consider using an express choice of law to govern the arbitration clause. Often, this is in favour of the law governing the main contract (the benefits of consistency with that law being something touched upon by the Supreme Court in its judgment). That approach should not change. The Supreme Court’s clarification of this area is welcome but is a general interpretative approach. Therefore, in such cases, an express designation still carries the value of some increased certainty (it will, of course, always be necessary to ensure the clause is properly drafted and works under the chosen law).

Where can you read more? See Enka Insaat Ve Sanayi AS (Respondent) v OOO Insurance Company Chubb (Appellant) [2020] UKSC 38 , and, for our ArbitrationLinks coverage see here .

What stays and what goes in assignment and novation?

The High Court held that an assignment by a contractor to an employer of “ the subcontract ” was an assignment of both (a) accrued rights, and (b) future rights under the subcontract. This meant that when the employer claimed damages in the sum of £133 million from the contractor, the contractor was left without a contractual right to seek a direct remedy from the subcontractor (in principle, it would be able to claim contribution from the subcontractor under the Civil Liability (Contribution) Act 1978, but this would have to be considered, alongside the effect of any relevant limitation or exclusion provisions, at full trial). The Court also held that the assignment did not amount to a novation, so that the contractor’s obligations under the subcontract had not been transferred to the employer.

It’s imperative to think – in advance and before agreeing to do so – what the possible effects of a transfer of rights might be, so that you are not left without a clear remedy, should that be needed. The decision also contains a handy summary of some of the key aspects of assignment and novation:


  • Subject to any express restrictions, a party to a contract can assign the benefit of a contract without the consent of the other party to the contract.
  • The burden of a contract (the obligations under it) cannot be assigned but the principle of conditional benefit can apply so as to impose on the contractual assignee a positive obligation where such obligation is inextricably linked to the benefit assigned.
  • In the absence of any clear contrary intention, reference to assignment of the contract by the parties is understood to mean assignment of the benefit of both accrued and future rights.
  • It is possible to assign future rights only, but clear words are needed for that.
  • Novation occurs when the original contract between A and B is extinguished and replaced by the creation of a new contract between A and C.
  • Novation requires the consent of all parties to the original and new contract. Consent can be given in the original contract, but clear words are needed.
  • The terms of the new contract must be sufficiently certain to be enforceable.
  • In every case the court must construe the contractual arrangements to give effect to the expressed intentions of the parties, using the established rules of construction.

Where can you read more? See Energy Works (Hull) Limited v MW High Tech Projects UK Limited and another [2020] EWHC 2537 (TCC) .

Notices: the devil in the detail

A share purchase agreement provided that the sellers would pay the buyer an amount equal to any tax liability which arose in certain circumstances, provided that, when making a claim, the buyer provided written notice stating “ in reasonable detail ” the matter which gave rise to the claim, the nature of such claim and (so far as reasonably practical) the amount claimed. The buyer gave notice of a claim to the sellers, referring to an investigation begun by the relevant tax authorities and gave a chronology of key milestones. Was this enough?

The High Court noted that the “reasonable detail” requirement amounted to an obligation to provide sufficient information so that the sellers, acting reasonably, knew what matter gave rise to the claim as well as the nature of the claim and, if reasonably practical, the amount. On the facts, the notice was insufficient. It contained no indication of the relevant facts, events or circumstances giving rise to the claim. Reference to the tax investigation was insufficient, and did not import all the tax authority’s comments and allegations, even if they were known to the sellers’ representatives. There had to be some indication of how the claim arose out of the facts identified.

Requirements to provide details usually mean that more, rather than less, should be included. It might help to consider what the purpose of the notification is and what it is that the recipient will need to know in order to respond or take a matter forward.

Where can you read more? See Dodika Ltd & Ors v United Luck Group Holdings [2020] EWHC 2101 (Comm) .

Waiver by election: understanding the boundaries

Rights can sometimes be lost by waiver by election: where a party has alternative, inconsistent rights, has knowledge of the facts which give rise to them and acts in a way which is only consistent with its having chosen to rely on one of them, it will be taken to have waived the other right ( Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 ). This explains why a party who communicates unequivocally an intention to continue with performance thereby loses the right to terminate a contract (instead, it is taken to have affirmed the contract).

A recent decision of the Privy Council is an important, and topical, illustration of the boundaries of the concept of waiver by election and highlights that it isn’t always applicable.

The parties entered into a fuel supply agreement against the backdrop of a potential closure of a refinery which supplied petroleum to the seller. The seller had a specific contractual right in a “Performance Relief” clause (effectively, a force majeure clause) to withhold, reduce or suspend deliveries to the extent it thought fit where necessitated by, amongst other things, the closure of the refinery.

When the refinery gave notice to the seller that it was closing, the seller notified the buyer but carried on supplying fuel, purchased and shipped from elsewhere while negotiations took place between the parties (as the seller sought a price increase to offset its higher costs). When these negotiations broke down, the seller sought to rely on the clause. The buyer argued that the seller’s rights had been “exhausted” after the seller had continued making deliveries. The Board of the Privy Council disagreed: waiver by election did not apply here. The seller’s right to claim performance relief did not present the seller with a binary, all-or-nothing choice between, on the one hand, putting an end to all the parties’ obligations or, on the other hand, treating all those obligations as still binding. Instead, it had a range of options: at one end of the scale, the seller might merely delay a delivery of fuel; at the other extreme, the seller might decide to cease all further deliveries under the contract, as eventually happened.

In situations where a party is faced with deciding whether to exercise a contractual right or not, whether taking one course of action will constitute a “waiver” of its other right(s) will ultimately turn on whether the rights are truly inconsistent with each other. Parties who want to make it clear that any action they are taking is to be without prejudice to their other rights should say so expressly, in writing. It should also be kept in mind that in these types of situations, estoppel can be relevant  – for example, if the seller had unequivocally represented it would not withhold deliveries under the supply agreement despite the closure of the refinery, it might have lost its right to performance relief by waiver by estoppel. There was no argument, however, that this was so in this case.

Where can you read more? See Delta Petroleum v BVI Electricity Corporation [2020] UKPC 23 .

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Case studies of all levels of the judiciary are available on the Judicial Appointments Commission (JAC) website . 

Case studies: judges in courts

The following case studies are from a series of interviews by the Law Society Gazette challenging some of the myths surrounding judicial appointment.

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Pieter de Waal , general counsel at the Law Society and a fee-paid tribunal member at the Information Tribunal, describes his current position, career highlights and tribunal role.

Thaira Bibi , a salaried immigration judge and a nominated diversity and community relations judge, describes her career, the skills she brought to the bench as a solicitor, and her tips for solicitors thinking about becoming a judge.

George Lubega talks about his role as an independent adjudicator for the Traffic Penalty Tribunal in England and Wales.

Samina Majid , fee-paid judge of the First-tier Tribunal, tells us about her current judicial role and her experience as a magistrate.

Nicola Chandler , disability qualified tribunal member of the Social Entitlement Chamber, explains what she learned from Pre-application Judicial Education (PAJE) programme. 

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Mr Justice Murray offers his valuable advice and experience to solicitors who are applying for appointment to the Bench in our podcast and in a JAC case study .

Tim Smith , BCLP partner and deputy High Court judge, talks to Yael Levy Ariel about his judicial career, shares advice to aspiring solicitor judges and explains why he thinks appointing more solicitors to the bench is important in our podcast.

David Stone was appointed as a deputy High Court judge in 2017. He's also an intellectual property solicitor and partner at Allen & Overy. He talks about:

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Access to education for a disabled teenager

PLP represented Francesca, a 15 year old with a rare genetic condition, in her challenge to Leeds City Council’s cuts to funding for post-16 education.

Leeds had announced that post-16 education for students with special educational needs would be cut to three days’ provision per week. It blamed the decision on cuts imposed by the Department of Education. PLP’s client challenged the cuts on the basis that local authorities are obliged by the Children and Families Act 2014 to provide the education described in students’ Education, Health and Care Plan, and cannot rely on lack of funding to provide less than is required. After issuing a judicial review, Leeds accepted that it had a duty to fund a five day programme. Our client’s mother said “A reduction in Francesca’s education, at a critical stage of her life would have limited her ability to reach her potential, isolated her from society and her peers, and increased her frustration. Given the complexity of Francesca’s needs, the provision required in her education, health and care plan would not have been met in those three days. I urge other parents to challenge these discriminatory cuts.”

PLP initially worked pro bono because legal aid was not available for the pre-action work. Because of this, Francesca’s mother had been turned away from all the law firms that she had approached.

law case study examples uk

Research on Exceptional Case Funding and university law clinics

PLP worked in partnership with the University of Exeter to set up an Exceptional Case Funding (ECF) clinic as part of the University of Exeter’s Community Law Clinic. The research assessed the feasibility of extending access to ECF through university law clinics. This included taking into account the practical experiences of setting up the clinic, and the perspectives of other institutions running similar schemes or considering setting up a similar project.

The findings demonstrate the practical issues encountered by universities engaging in ECF work, and provide recommendations for universities looking to expand their pro bono work by training students to assist members of the public with ECF applications. At a practical level, the research assisted the University to set up an ECF clinic in the academic year 2017/18, which continued to run in 2018/19.

PLP has published research relating to this project, Exceptional Case Funding Clinics .

law case study examples uk

Fairer access to benefits

In order to claim benefits, people are required to make an agreement with the Department for Work and Pensions about what they will do to look for work and improve their chance of getting work. These agreements can often contain unreasonable or unfair requirements failing to take account of physical and mental health problems, caring responsibilities and other factors.   Failure to live up to these unfair requirements then leads to claimants being sanctioned as they are effectively being set up to fail.

Claimants often don’t seek advice until after being sanctioned, and don’t realise they could have requested reasonable adjustments to their agreements, or not agreed to unfair conditions in the first place.  By delivering training to frontline mental health and homelessness workers about the changes that can be requested, PLP is ensuring client’s fairer access to benefits and enabling them to challenge decisions when things go wrong.

law case study examples uk

Using information rights to expose flawed policy

Under the Freedom of Information Act, PLP, acting on behalf of a concerned individual, obtained information from the Home Office revealing that a visit by its officials to Eritrea in December 2014 was made in order to discuss reducing Eritrean migration to the UK.

At the time, the grant rate for Eritrean asylum claims was over 85%. The disclosed documents showed  the Home Office doubted the reliability of Eritrean government officials, and it could not significantly reduce the asylum grant rate.

Despite this, in March 2015 the Home Office changed its policy position, which led to a reduction in the number of Eritreans it recognised as refugees to 48% by June 2016. In a majority of cases where the Eritreans lodged an appeal, the independent judiciary found the Home Office had made the wrong decision. However, the drop in the initial grant rate between July 2015 and June 2016 has had the effect of excluding many Eritrean unaccompanied children from being admitted to the UK under the ‘Dubs’ amendment policy.

This is an example of PLP using information rights to expose poor policy making by the UK Government with the effect of denying vulnerable people assistance. Alison Pickup, PLP’s Legal Director, said: “ The fact that the Home Office has excluded many Eritrean children in France from the possibility of being relocated to the UK under the ‘Dubs’ amendment on the basis of a statistic which is a result of its own flawed country guidance is a tragedy .”

This work led to a front page article in the Guardian, here : https://www.theguardian.com/uk-news/2017/jan/22/home-office-eritrea-guidance-softened-to-reduce-asylum-seeker-numbers

law case study examples uk

Upholding the Rule of Law to protect the rights of vulnerable children

Using specialist legal advice to inform policy

PLP’s Legal Director advised the children’s charity Article 39 about the lawfulness of the controversial “innovation clauses” in the Children and Social Work Bill 2016. The clauses would have allowed the Government to exempt local authorities from their statutory duties to vulnerable children in order to “test new ways of working”.  Article 39 used PLP’s advice to inform its successful advocacy and campaigning around the clauses which were defeated in the House of Lords and dropped by the Government when the Bill returned to the Commons.

law case study examples uk

Access to legal aid – Mr Miah’s story

“I came to PLP for help getting legal aid exceptional funding as I could not find anyone else to help me. I lost my job and after that I was not able to make any progress in my case because I had no legal aid and no way of paying for a lawyer. Without PLP’s help I would have found it very difficult to have the same contact with my children as an able-bodied person. I am disabled and I talk through a voice box which people often do not understand. With the help of my lawyer, I was able to get a fair hearing from the court and now have more contact with my children.”

law case study examples uk

Representing Rights of Women

Stricter evidence requirements were preventing many survivors of domestic abuse from getting legal aid. PLP represented the charity  Rights of Women  in a challenge to the evidence requirements. Following the Court of Appeal’s judgment, the Government introduced new regulations which allow applications to rely on a wider range of evidence of domestic abuse.

The impact of the case is illustrated by the Legal Aid Agency’s own statistics: subsequent to the case in April-June 2016 over 50% more applications for legal aid in family cases were received from survivors of domestic violence, and there was a 35% increase in the number of applications granted.

law case study examples uk

Personal Independence Payments (PIP) and disability rights

PLP represented RF, who brought a challenge to part of the Government’s 2017 Personal Independence Payment (PIP) Regulations. The Regulations explicitly excluded applicants receiving higher levels of benefit if they could not undertake certain activities because of psychological distress.   The judge quashed the  Regulations because they discriminate against those with mental health problems in breach of  the Human Rights Act. Because they were discriminatory, the judge also found that the Secretary of State did not have lawful power to make the Regulations (i.e. they were “ultra vires”), and that he should have consulted before making them, because they went against the very purpose of the PIP.  RF’s claim was supported by The National Autistic Society, Inclusion London, Revolving Doors and Disability Rights UK.  All of those organisations gave statements to the court that the Regulations were unfair and that the intention to treat those with psychological distress differently had not been made clear in the early PIP consultation stages. The claim was also supported by two interveners: Mind and the Equality and Human Rights Commission (EHRC). The EHRC made written submissions to the Court on the ongoing and persistent breaches by the UK Government of its obligations under UN Convention on Rights of Persons with Disabilities arising from its austerity measures. The Judge found that this inconsistency with the UN Convention supported his finding that the measure had no objective justification.

In his judgment Mr Justice Mostyn noted (para 59) that “The wish to save nearly £1 billion a year at the expense of those with mental health impairments is not a reasonable foundation for passing this measure.”

law case study examples uk

Mrs Tirkey’s story

In a ground breaking judgment the Employment Tribunal upheld numerous claims, including those for unpaid wages and religious and race discrimination, brought by Mrs Tirkey, anIndian woman kept in domestic servitude by her employers for 4 ½ years.

The Legal Aid Agency refused to fund Mrs Tirkey’s representation for 17 months, suggesting that the case was not of “sufficient importance or seriousness” and that it was “only a claim for money”. PLP helped Ms Tirkey to apply for legal aid Exceptional Case Funding, which was only successful after PLP began legal action on her behalf. The case will affect future claims by victims of discrimination and servitude and would not have been possible were it not for PLP’s Legal Aid Support Project.

  • Practical Law

Case studies: Dispute Resolution

Practical law uk help and information notes 5-205-6139  (approx. 5 pages), dispute resolution.

  • Adjudication case study: starting an adjudication and enforcing a decision .
  • Application for stay of proceedings .
  • Application to restrict access to court documents (CPR 5.4C(4)) .
  • Derivative actions under the Companies Act 2006: Case study: application for permission to bring a claim .
  • Disputing jurisdiction .
  • Freezing injunctions .
  • Permission to serve outside the jurisdiction .
  • Quantification of damages
  • Search orders .
  • Security for costs .
  • Security for costs: application for return .
  • Security for costs: application to vary .
  • Service by alternative methods .
  • Setting aside default judgment .
  • Strike out on basis of abuse of court's process .
  • Strike out on basis of failure to comply .
  • Summary judgment and strike out .


  • Application for an anti-suit injunction under section 37 Senior Courts Act 1981 .
  • Application to appoint a three member tribunal under section 18 English Arbitration Act 1996 .
  • Application to enforce a domestic arbitration award under section 66 English Arbitration Act 1996 .
  • Application to enforce a New York Convention award under section 101 English Arbitration Act 1996 .
  • Application to court to determine a jurisdictional issue under section 32 English Arbitration Act 1996 .
  • Application to English court for freezing injunction in support of arbitration under section 44 English Arbitration Act 1996 .
  • Application to the English court seeking determination of a jurisdictional issue under section 72 English Arbitration Act 1996 .
  • Application to remove arbitrator under section 24 English Arbitration Act 1996 .
  • Application to set aside appointment and cross-application to confirm appointment under section 17 English Arbitration Act 1996 .
  • Application for stay of English court proceedings under section 9 English Arbitration Act 1996 .
  • Challenging an award under section 67 of the English Arbitration Act 1996 .
  • Challenging the award: section 68 of the English Arbitration Act 1996 .
  • Challenging the award: section 69 of the English Arbitration Act 1996 .
  • Case study, Commencing ICC arbitration (2021 Rules) .
  • Commencing ICC arbitration (1998 Rules) .
  • Commencing HKIAC arbitration (2013 and 2018 Rules) .
  • Commencing HKIAC arbitration (2008 Rules) .
  • Commencing LCIA arbitration (2014 Rules) .
  • Commencing LCIA arbitration (1998 Rules) .
  • Commencing SIAC arbitration (2013 Rules) .
  • Resisting enforcement under section 66 English Arbitration Act 1996 .
  • Resisting enforcement of a New York Convention award under the English Arbitration Act 1996 .
  • SIAC interim application (2013 Rules) .
  • Creditor's petition to wind up a company .
  • Injunction against winding up proceedings .


Case Law: How to find and use case law: Introduction

  • Introduction
  • Where to find case law
  • Citations to case law
  • How to find case law
  • How to check the status of case law

Case law (or judicial precedent) is law which is made by the courts and decided by judges. Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.

In order for the principle of stare decisis to operate, a judge must know what the previous decisions of courts are. Case reports, or “law reports”, make this possible. Although earlier collections of cases exist, it was in the 19 th century that a formalised system of law reporting was established in Scotland and England. There are currently many different series of law reports published, which reproduce judgments and add supplementary information by an editor. It may take some time between a judgment being handed down and its being published as a report. Similar systems of law reporting operate in other common law jurisdictions.

The main sources of cases are law reports, digests and official transcripts.

Case law, like legislation, can change over time. Just because a decision was good law once does not mean it remains so today. A lawyer needs to be able not only to find and read case law, but also to be able to check whether it has been subject to subsequent judicial consideration and whether it remains good law.

Video: Finding case law

Online sources of case law, law reports, digests and transcripts, judicial precedent.

Judicial consideration

Structure of a law report

law case study examples uk

Law reports

Not all cases are reported. Indeed, given the volume of cases passing through the courts, only a small minority of cases are reported.

Whether a case is reported is decided by the editor of a series of reports. Generally speaking, to merit reporting a case must introduce a new legal principle or rule, modify an existing principle or settle a doubtful question of law. A case may be reported if it addresses an issue of statutory interpretation or provides a new application of an accepted principle.

A digest is a publication which contains summaries of cases. Digests can be a useful way of finding and checking the status of a case. They may also be the only source of a case available to you – especially if the case remains unreported. Examples include The Faculty Digest and Shaw’s Digest , which contain information about older Scottish cases. The Current Law Year Book and Monthly Digest also contain summaries of cases.


Transcripts of judgments are documents produced by a court (or reproduced by a publisher) which contain the opinion of the judge(s) with no additional information added. If a case remains unreported, a transcript may be the only source of the judgment. For some cases an application to the court which heard the case is the only method of obtaining a transcript. However, many transcripts are now made available electronically through public access and subscription services. Given the delay in reporting, such services have become an increasingly important source of recent judgments.

Judicial precedent operates under the principle of stare decisis which literally means “to stand by decisions”. This principle means that a court must follow and apply the law as set out in the decisions of higher courts in previous cases.

Judicial consideration - affirmed, applied, reversed, overruled...

A court in handing down a judgment may consider a previous decision in several ways. A previous decision may be:

  • Approved - A higher court may state that another case heard by a lower court was correctly decided.
  • A decision may be Applied - A court may apply the reasoning of a previous case in a current case, where the facts are different from those of the previous case.
  • A decision may be Followed - A court may be bound by a previous decision where the material facts were substantially the same as in the instant case.
  • Or a decision may be Distinguished - A court may not follow a previous and otherwise binding decision because there is a difference in, for example, the material facts. The previous case remains good law.
  • In some instances a decision may be Disapproved - A higher court may state that another case heard by a lower court was wrongly decided. The court indicates that the previous case may not be good law - but does not expressly overrule it.
  • Alternatively a previous decision may be Doubted - A court while not expressly overruling a previous case may give reasons to show that it may have been wrongly decided.
  • Or a decision may be Not followed - A court may choose not to follow the decision of a court of coordinate jurisdiction where the material facts were substantially the same as the instant case.

Finally, a decision in a different case may be Overruled - A court may expressly overrule the ratio decidendi of an inferior court’s decision in another case.

In addition, if a case is appealed to a higher court, the decision of the lower court may be:

  • Affirmed – The same case is held to have been correctly decided by the lower court. It is good law.
  • Or a decision may be Reversed – The same case is held to have been wrongly decided by the lower court. It is not good law.

Furthermore, under the doctrine of parliamentary supremacy, a decision in a case may be superseded by legislation.

Importantly, if a case has been reversed, overruled (or superseded by legislative provisions) it is no longer good law and should not be relied on as authority.

A law report is divided into distinct sections. The most important of these is the judgment, or opinion, which is the text of the judge’s reasoning. However, other sections added by the editor assist in understanding the case and assessing its likely impact.

Sections usually found in a report are:

  • Parties’ names – that is the parties involved in the case. 
  • Court - before which the case was heard.
  • Date of the hearing – often some time before it is reported.
  • Judges' names - who heard the case.
  • Keywords or subject terms.
  • Headnote (or rubric) – this a summary of the case outlining the material facts, legal issues and decision.
  • Judicial history – that is details of the case’s history (in inferior courts).
  • Authorities referred to – a list of cases, legislation and textbooks referred to in the case.
  • Opinion or judgment of the court – the judge’s decision and reasoning. Judgments of superior courts are now divided into numbered paragraphs for ease of reference (numbers are in square brackets).
  • The outcome of the case.
  • Representation – the solicitors and advocates (or barristers) who represented the parties.

  • Next: Where to find case law >>
  • Last Updated: Feb 20, 2024 9:37 AM
  • URL: https://guides.lib.strath.ac.uk/case_law

Case Studies

by Graham Ross and Beth Silver

The case studies provided here general involve only live cases, and statistics are provided where available.   An early impression is that, with the exception of those services making use of various forms of blind bidding (a tool that can be used within any process of dispute resolution, online or offline and, therefore, not alone likely to drive any overall recommendations and conclusions for the ODR Advisory Group) the only ODR services used in live casework have been limited to those using the online medium simply as a platform for discourse (whether synchronous, as in conferencing and chat rooms, or asynchronous, as in forum based systems). Those systems attempt to do little more than emulate existing dispute resolution processes such as mediation and arbitration (albeit with the benefit, in so doing, of avoiding physical attendances) and depend, for the quality of their outcomes and user satisfaction levels, very much on the ability, experience and approach of the neutrals rather than on the technology itself.

Projects considered in these papers include: domain disputes, eBay, The Mediation Room, Modria, Smarter Complaints and eQuibbly.

Related content

  • Download CJC-Case-Studies-at-Feb-2015-edited1.doc file CJC - ODR case studies (2015) 94.00 kb
  • Download Additional-Case-Studies1.pdf file CJC - ODR additional case studies 65.09 kb

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Recent uk construction law cases: a round up, latest news and updates.

Recent UK Construction Law Cases A Round Up

Nicola Webster is a commercial dispute resolution specialist with particular experience in resolving disputes in the construction sector. In this article she identifies the key takeaways from three recent construction dispute cases that have been before the UK Courts and the implications of these cases for those operating in the construction industry.

1. Balfour Beatty Regional Construction Limited v Van Elle Ltd [2021] EWHC 794 (TCC)

In a case heard in the Technology and Construction Court in March this year, Balfour Beatty Regional Construction Limited (“ Balfour Beatty ”) v Van Elle Ltd (“ Van Elle ”), a sub-contract was found to cover works carried out by a sub-contractor, even though it was unsigned at the time the works were carried out.

The Claimant in this case, Balfour Beatty, was engaged as a main contractor for a construction project at a site in Newcastle upon Tyne (“ the Site ”). Balfour Beatty was to design and construct a sub-sea cable manufacturing facility at the Site. The work to be completed by Balfour Beatty required a considerable amount of foundational piling. Balfour Beatty engaged a sub-contractor in respect of the foundational piling, Van Elle, the Defendant in this case.

A distinct element of the works known as “the Northern Carousel” was carried out by Van Elle prior to the parties signing a formal sub-contract (based on one of the JCT standard form contracts).

Shortly after installation excessive settlement was discovered and extensive remedial works were required. Balfour Beatty raised a claim against Van Elle to recover the remedial costs and for an indemnity from Van Elle for any liability that maybe due from Balfour Beatty to the Employer.

Van Elle argued that the works to the Northern Carousel were carried out before the parties signed the formal sub-contract and the contract between the parties was therefore set out in a written quotation that Van Elle had sent to Balfour Beatty sometime earlier. Van Elle argued Balfour Beatty accepted the earlier quotation by permitting Van Elle to commence work at the Site. The quote provided by Van Elle incorporated Van Elle’s standard terms of business. This was important because those standard terms of business contained several possible limitations of liability for Van Elle.

What did the Court decide?

The Judge found that the formal sub-contract governed all the works, even those to the North Carousel that were carried out before the parties signed the formal sub-contract. Although his comments were not binding, the Judge also considered and commented upon the various limitations Van Elle sought to make in their standard terms of business

Construction companies should take particular care at the outset of a construction project to determine the terms upon which work is carried out and should consider looking at their standard terms in relation to limitation in light of the Judge’s comments.

2. Multiplex Construction Europe Ltd v Bathgate Realisations Civil Engineering Ltd and others [2021] EWHC 590 (TCC)

In February this year, the Technology and Construction Court considered whether a consultant could have liability to a contractor where there was no contractual relationship between them.

The case of Multiplex Construction Europe Ltd (“ Multiplex ”) v Bathgate Realisation Civil Engineering Ltd and others [2021]EWHC 590 (TCC) concerned a sizable construction project in the City of London. Multiplex was the main contractor and had design and build responsibilities to the Employer.

One of the three defendants in this case, Bathgate Realisations Civil Engineering Limited (formerly known as Dunne Building and Civil Engineering Limited) (In administration) (“ Dunne ”) was a sub-contractor of Multiplex and had full design responsibility for the concrete works and the temporary works.

The concrete core was constructed with use of a slipform rig which was part of the temporary works. The slipform rig was designed by another Defendant, BRM Construction LLC (“ BRM ”). The contract required that the temporary works were checked by a qualified third party. RNP Associates Limited (“ RNP ”) were engaged by Dunne to carry out those third part independent checks of the temporary works. RNP entered liquidation in 2018 and was insured by another (and final) Defendant in this case, Argo Global Syndicate 1200 (“ Argo ”).

During the course of the works, Multiplex’s subcontractor, Dunne, went into administration. Multiplex therefore terminated its agreement with Dunne and engaged a new sub-contractor. The new subcontractor investigated the work undertaken to date and said that both the work and the slipform rig were defective and, it said, aspects were unsafe. Multiplex therefore had the rig replaced.

Multiplex wished to recover its costs of replacing the slipform rig and other remedial works, which were substantial (it claimed over £12 million). Multiplex obtained judgments against Dunne and BRM but also wished to make a claim direct against RNP’s insurer, Argo, who was the third defendant in this case. The reason Multiplex wished to proceed in this way was because the initial subcontractor, Dunne, had entered administration and the designer, BRM, was based in Dubai and uninsured.

There was no contractual relationship between Multiplex and RNP but Multiplex argued that it would have a claim against RNP on the basis that RNP owed Multiplex a duty of care, negligent misstatement and/or provided warranties to Multiplex.

In a preliminary issues hearing (meaning a hearing on a particular legal issue before a full trial), the Judge held that RNP, the consultant that had undertaken the third party independent check of the temporary works, did not owe any duties as argued by Multiplex nor did it provide any warranties.

Contractors should consider carefully the terms, in particular those dealing with the allocation of risk, upon which sub-contractors and consultants are engaged in construction projects and, if a dispute should arise, parties should always carefully consider a potential defendant’s ability to pay should a claim be successful.

3. JSM Construction Limited v Western Power Distribution (West Midlands) plc [2020] EWHC 3583 (TCC)

In the case of JSM Construction Ltd v Western Power Distribution (West Midlands) plc [2020] EWHC 3583 (TCC) the Technology and Construction Court (the “TCC”) considered the adequacy of payment provisions in a construction contract that failed to include a final account mechanism.

What is a final account?

Final accounts in construction projects are prepared at the completion of the construction phase. The purpose is to set out the final sum to be paid by the Employer to the Contractor taking into account all necessary adjustments. Generally, the final account should finalise any disputes that had arisen between the parties during the construction phase (aside from defects), for example, any disputes relating to losses incurred due to extensions of time, variations etc.

The precedent forms of construction contracts have slightly different ways of dealing with final accounts but in this case, there was no procedure set out for dealing with one. The Court therefore considered whether a procedure could be implied under statute, more specifically, under section 110 of the Construction & Regeneration Act 1996 (“ the Act ”).

JSM Construction Ltd (“ JSM ”) is a utilities service provider. Western Power Distribution (West Midlands) plc (“ Western Power ”) is an electricity distribution network. In this case, Western Power was the Employer and JSM was the Contractor.

Under the contract between JSM and Western Power, JSM agreed to install two cables and associated ductwork in Birmingham. The contract provided that interim payments would apply but no provision was made for a final account.

Throughout the course of the works JSM submitted interims applications for payment. Some months after its last interim application for payment, JSM made a further application that it called a “final application”. The sum in the final application had been based on a remeasurement of the works undertaken by JSM.

Western Power refused to pay JSM’s final application arguing that, under the terms of the contract between the parties, JSM was only entitled to a series of interim payments but was not entitled to raise a final account or to a final payment.

JSM commenced court action against Western Power to try and seek payment of the sums it claimed were owing. One of the arguments raised by JSM was that the payment mechanisms in the contract between Western Power and itself were inadequate and therefore, the final account provisions in paragraph 5 of the Scheme for Construction Contracts 1998 (“ the Scheme ”) should be implied instead.

Western Power argued that the failure of the contract to provide for a final account did not render the payment terms inadequate and the Scheme should not therefore be implied.

Western Power made an application to have JSM’s claim “struck out” (meaning it was asking the Court to dismiss JSM’s claim without a full hearing of all the evidence on the grounds it was bound to fail) or failing that, have a summary judgment entered against JSM (which, similarly, means it was asking the court to make a judgment against JSM at an early stage without a full trial).

The Judge hearing Western Power’s application therefore had to decide whether or not there was an implied term pursuant to section 110 of the Act.

The Judge held that there was nothing in the wording of section 110 of the Act that required parties to a construction contract to agree a separate procedure for dealing with final accounts in order for the payment mechanism to be “adequate” as required by the Act. The Judge noted that simple contracts for fixed fees and staged payments could well be “adequate” for the purposes of section 110 of the Act without there being a final account.

Western Power’s application to have JSM’s case struck out or alternatively, for summary judgment to be entered against JSM, failed on the basis that the Judge could not decide the matter without addressing the full facts of the matter which was not possible at an application hearing (as opposed to a full trial).

If a construction contract does not provide a mechanism for a final account, it does not necessarily follow that one will be implied. Parties should therefore not rely on the Act or the Scheme to remedy when they have entered into a bad bargain.

One to look out for…

4. Naylor and others v Roamquest Ltd and another [2021] EWHC 567 (TCC)

The Technology and Construction Court heard an application in March in relation to an ongoing cladding claim regarding a development of residential and commercial units comprising of eleven tower blocks in London. The Defendants in the case were the freehold owner and main contractor who carried out the design and build. The claimants are some of the leasehold owners.

At the stage of this application the leaseholders’ claim was inadequately pleaded but the Judge allowed them the opportunity to amend the pleadings. Therefore, should this case proceed to trial it is likely to be of significant interest given the widespread fears following the Grenfell Tower fire.

If you are involved in a construction contract dispute it is important to act quickly. Nicola has a reputation for her strong commercial approach which achieves swift and favourable outcomes for her clients. Contact her now for further advice.

Girlings has offices in Ashford, Canterbury and Herne Bay .

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.

Nicola Webster

Senior associate solicitor, dispute resolution.

Nicola is an experienced commercial dispute resolution specialist, providing advice, support, and guidance to a wide range of businesses, charities, public bodies, and organisations, often dealing with high value claims.


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Lee is an Associate (FCILEx) in our Litigation team, based in our Ashford office. He joined Girlings in May 2022.

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David specialises in property based litigation and breach of contract cases. He provides litigation support and guidance to a wide variety of commercial clients as well as to individuals.

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In the UK legal system , case law plays a critical role in guiding decisions and setting precedents in various legal matters. The concept of case law can be complex, but understanding its definition, significance, and its relationship with legislation is vital for anyone with an interest in the field of law. By examining different types of case law and their historical context, as well as differentiating between case law and common law , you can gain a deeper understanding of the role that case law plays in shaping legal principles . This article will delve into these subjects, providing insights and examples that will illuminate these important aspects of the UK legal system .

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Understanding Case Law in the UK Legal System

Case law definition: what it means.

Case law refers to the collection of legal decisions made by judges in courts, which interpret statutes, regulations and previous case decisions. These decisions create a body of law known as a precedent that future cases must follow.

  • Judicial decisions: Case law is established when a judge makes a decision on a specific legal issue.
  • Precedent: Once a decision is made, it becomes a precedent that lower courts are obliged to follow.
  • Hierarchy of courts: The UK has a hierarchy of courts, with the Supreme Court at the top and various lower courts, such as the High Court. Higher courts have the authority to make decisions that are binding on lower courts.

Importance of Case Law in the UK Legal System

  • It supplements legislation: When legislation is ambiguous or silent on a particular issue, case law can fill in the gaps by interpreting the legislation and providing guidance.
  • It promotes consistency and fairness: By following precedent, similar cases are decided consistently, making the legal system more predictable and ensuring that individuals are treated fairly and equally.
  • It allows for legal development: Case law allows the law to adapt and develop over time, as judges can reinterpret legislation and apply it to new situations or technological advancements.

The doctrine of precedent also enables an effective system of checks and balances. For instance, if a court's decision is thought to be incorrect, it can be appealed to a higher court. The higher court can then reconsider the decision and either affirm, reverse, or modify it, providing a safeguard against erroneous decisions.

Relationship between Case Law and Legislation

  • Statutory interpretation: Judges interpret legislation and apply it to the facts of the case before them. In doing so, the judge may have to decide on the meaning of a specific word or phrase in the legislation. This interpretation then becomes part of the case law.
  • Legal development: When judges make decisions in cases where there is no controlling legislation, they may create new legal principles or expand upon existing ones. These new principles can later be incorporated into legislation by Parliament.
  • Parliamentary response: Parliament may respond to case law by passing new legislation or amending existing legislation to clarify a legal issue, overrule an undesirable precedent, or address a new situation not previously covered by the law.

An example of the interaction between case law and legislation can be seen in the development of the law on unfair contract terms. Judicial decisions initially established that certain terms could be deemed unfair and unenforceable in court. Later, Parliament enacted the Unfair Contract Terms Act 1977 to provide a statutory framework for identifying and regulating unfair contract terms, influenced by the principles established in case law.

In conclusion, case law is a crucial aspect of the UK legal system, providing guidance in interpreting legislation, promoting fairness and consistency, and allowing the law to adapt to new situations. Understanding the relationship between case law and legislation is vital for a comprehensive grasp of the UK legal system.

Examining Different Types of Case Law

Case law examples and precedents.

  • Binding precedent: A binding precedent is a decision from a higher court that must be followed by lower courts in the same jurisdiction. Binding precedents are created when a court makes a decision on a specific legal issue, establishing a rule that must be followed in future cases with similar facts.
  • Persuasive precedent: A persuasive precedent is a decision from a court that is not binding on the court hearing a current case but can still be considered and may influence the decision. Persuasive precedents usually come from lower courts, foreign courts or from dissenting judgments within a higher court.
  • Overruling: Overruling occurs when a higher court changes the legal rule established by a lower court's decision. The new rule replaces the old rule and must be followed in future cases.
  • Distinguishing: Distinguishing occurs when a court identifies relevant differences in the facts or legal issues between a current case and a prior binding precedent. The court then decides that because of these differences, the binding precedent does not apply to the current case.

Example 1 (Binding Precedent): In the UK, the decision of the House of Lords in Donoghue v Stevenson (1932) established the principle of negligence and the "neighbour" test. This decision is a binding precedent, meaning lower courts must apply this principle in negligence cases.

Example 2 (Persuasive Precedent): In R v R (1991), the House of Lords recognized marital rape as a crime in English law. Although this decision is a binding precedent in England and Wales, it served as a persuasive precedent for courts in other jurisdictions such as Scotland, which later incorporated the ruling into their own law.

Example 3 (Overruling): The case of Pepper v Hart (1993) overruled the previous rule that restricted courts from referring to parliamentary materials to aid in statutory interpretation. The new rule allows courts to consider parliamentary debates and other materials to better understand ambiguous legislation.

Example 4 (Distinguishing): In R v Kingston (1994), the court distinguished its decision from the binding precedent of R v Sangha (1988). The court held that while involuntary intoxication could not be a defence for specific intent crimes, it could be a defence for basic intent crimes, based on the distinction between the two types of intent.

Famous Case Laws in UK History

  • Carlill v Carbolic Smoke Ball Co (1893): This case established the requirements of offer and acceptance in contract law and the concept of "unilateral contracts." The court held that the company's advertisement was a valid offer, and by using the Carbolic Smoke Ball as directed, Mrs. Carlill had accepted the offer and was entitled to the promised cash reward.
  • Donoghue v Stevenson (1932): As mentioned earlier, this case established the principle of negligence and the "neighbour test," laying the foundation for modern tort law . The court held that a duty of care existed between the ginger beer manufacturer and the ultimate consumer, even though there was no direct contract between the parties.
  • R v Dudley and Stephens (1884): This case addressed the defence of necessity in criminal law, confirming that it could not be applied to justify murder. The court held that although the defendants were in a desperate situation, they could not escape liability for killing and eating a cabin boy to save their own lives.
  • Entick v Carrington (1765): This case established the principle that government officials, such as the king's messengers, were not above the law and could be held liable for violating an individual's rights. This decision was instrumental in the development of modern principles of privacy and the rule of law.

Differentiating Case Law and Common Law

Case law vs common law: key differences and similarities.

Case law, also known as judge-made law or precedent, refers to the body of law established through the decisions made by judges in individual cases. These decisions serve as guidelines for the interpretation and application of legislation and principles in future cases that have similar facts or legal issues.

Common law, on the other hand, refers to an entire legal system that originated in medieval England and has since evolved over centuries. Common law is based on the principles and practices that have been developed through judicial decisions, as opposed to statutory or written law enacted by legislatures, such as Parliament or delegated legislation .

  • Scope: Case law is a component of common law, but it does not encompass the entire body of common law. While case law refers specifically to the precedent set by judicial decisions, common law includes principles and practices developed through those decisions, as well as customary norms and legal traditions.
  • Authority: In the context of common law, case law serves as the primary source of authority and guidance for decision-making in courts. It establishes binding and persuasive precedents that judges must follow or consider in their rulings. However, common law principles and rules themselves may be derived from a range of sources, including judge-made law, legal texts, customs, and conventions.
  • Evolution: Case law evolves continuously through the decisions of judges, while common law is a more stable system that evolves gradually over time. When judges encounter new scenarios or legal issues, they may create new precedents, which can then be integrated into the common law system.
  • Interdependence: Case law and common law are fundamentally interlinked, as case law serves as the primary mechanism through which the common law system develops and adapts to new situations. Additionally, both are essential for understanding and interpreting the law within the United Kingdom.
  • Precedent: A key aspect of both case law and common law is the doctrine of precedent , or stare decisis. This principle holds that judges should follow the decisions made by higher courts in cases with similar facts, thereby ensuring consistency and predictability in the application of the law.
  • Judicial interpretation: In both case law and common law, judges play a crucial role in interpreting legal principles and applying them to the facts of individual cases. Their interpretations and decisions shape the development of the law and can have a lasting impact on future cases.

The Role of Case Law in Shaping Common Law Principles

  • Establishing new principles: When judges decide cases involving novel legal issues or uncharted territories, their decisions can create new common law principles. These principles then become part of the common law and serve as a foundation for future cases.
  • Adapting to societal changes: As societal norms and values evolve, case law allows the common law system to be flexible and responsive to these changes. Judges can reinterpret existing principles or create new rules to better address the needs and expectations of contemporary society.
  • Resolving ambiguities: In situations where legislation is unclear or silent on a particular issue, case law can provide clarity by interpreting the legislation in light of common law principles. This interpretive process helps to harmonize statutory law with the broader common law system.
  • Refining legal concepts: Case law can refine existing common law principles, through judgments that provide detailed analyses and nuanced interpretations of legal concepts. These refined principles are then incorporated back into the common law system, further enhancing its coherence and consistency.

Case Law - Key takeaways

Case law definition: Collection of legal decisions made by judges, interpreting statutes, regulations, and previous case decisions to create precedent for future cases.

Importance in UK legal system: Supplements legislation, promotes consistency and fairness, and allows for legal development.

Case law vs common law: Case law is a component of common law, specifically referring to judicial decisions and precedents, while common law encompasses a wider range of legal principles and practices.

Relationship between case law and legislation: Includes statutory interpretation, legal development, and parliamentary response.

Famous case law examples: Carlill v Carbolic Smoke Ball Co (1893), Donoghue v Stevenson (1932), R v Dudley and Stephens (1884), and Entick v Carrington (1765).

Frequently Asked Questions about Case Law

--> what is case law, --> how can i reference case law in uk english, --> what is the difference between legislation and case law, --> can legislation override case law in the uk, --> why is it important to read case law, test your knowledge with multiple choice flashcards.

What is case law in the UK legal system?

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Case law refers to the collection of legal decisions made by judges in courts, which interpret statutes, regulations and previous case decisions, creating a body of law known as precedent that future cases must follow.

Case law is important because it supplements legislation, promotes consistency and fairness, and allows for legal development through judicial decisions and the creation of precedents.

Stare decisis is the principle that decisions made by higher courts are binding on lower courts, ensuring consistency, stability, and predictability within the legal system.

How does case law interact with legislation in the UK legal system?

Case law interacts with legislation through statutory interpretation, legal development (where judges create new legal principles or expand existing ones), and parliamentary response to case law (by passing new legislation or amending existing legislation).

What is the hierarchy of courts in the UK legal system?

The hierarchy of courts in the UK includes the Supreme Court at the top and various lower courts, such as the High Court, where higher courts have the authority to make decisions that are binding on lower courts.

What is a binding precedent in case law?

A binding precedent is a decision from a higher court that must be followed by lower courts in the same jurisdiction, establishing a rule that must be followed in future cases with similar facts.


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  • 10 Weird and Wonderful Cases Every Law Student Should Know About

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One of the most enjoyable things about studying Law is the sheer strangeness of some of the cases you’ll encounter.

You might think that cases involving nuisance would just be neighbours with their music turned up too loud, or contract law would just be about businesspeople trying to get one over on each other in a deal, but it can be so much more odd and so much more fun than this. Often, the really bizarre cases are the ones you’ll end up studying, too, as they are the ones that legislation didn’t plan for and that raised questions and issues that hadn’t come up previously. In this article, we look at some of the funniest, oddest and most entertaining cases you’re likely to come across at the start of a Law degree – we hope it whets your appetite for more.

1. Miller v Jackson

On the face of it, this case doesn’t seem that exciting. The Millers moved house next to a cricket pitch, and complained about the nuisance of the cricketers playing and cricket balls landing in their back garden. They went to court to try to prevent cricket being played there. They were turned down.

But all the same, this case is one where virtually every Law student can quote at least some of the judgment. It opens, “In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well…” and continues in a similar vein, with the judge, Lord Denning, wondering if the cattle that grazed there before houses were built objected to the cricket. The final line of the Wikipedia entry on the case provides an equally enjoyable conclusion: “Not long after the case, the Millers moved house.”

2. Carlill v the Carbolic Smoke Ball Co.

At the heart of this case is the question of what constitutes a contract (something that we’ll return to later in this list). Back in 1891, Britain was at the tail end of a flu pandemic that killed around a million people worldwide, and Carbolic Smoke Balls were a quack remedy to avoid getting the flu. It involved putting a tube up your nose, which was attached to a rubber ball filled with carbolic acid, which would cause your nose to run. So confident were the Carbolic Smoke Ball Company in the quality of their product that they offered a £100 reward to anyone who used a Carbolic Smoke Ball regularly and subsequently got the flu – and it’s worth bearing in mind that £100 in 1981 is the equivalent of around £11,500 in today’s money.

Mrs Carlill used the Carbolic Smoke Ball religiously, and came down with the flu all the same. The Carbolic Smoke Ball Co. had said in their advertisements, “£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks” and also added, “£1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter” but when Mrs Carlill requested her money, they refused to pay up. The court held that they had entered into a valid contract with Mrs Carlill, and ordered them to hand over the money.

3. Leonard v PepsiCo

In 1999, Pepsi ran an advert in the USA about a points scheme in which a teenager shows up in a Harrier jump jet, with the text: “HARRIER FIGHTER 7,000,000 PEPSI POINTS”. An enterprising 21-year-old saw that points could be bought for 10c each, and sent in a cheque for $700,008.50 to gain the required 7,000,000 points. When Pepsi refused to let him claim a jet worth roughly $23 million, he took them to court for breach of contract. Disappointingly, Leonard’s claim was rejected on the basis that no one could reasonably take the advert’s offer seriously. But the court’s observations make for a great source of deadpan humour, with comments such as “the callow youth featured in the commercial is a highly improbable pilot, one who could barely be trusted with the keys to his parents’ car, much less the prize aircraft of the United States Marine Corps.”

4. Proctor & Gamble v HM Revenue & Customs

In the UK, VAT is a tax, currently set at 20%, charged on products that are considered luxuries – so there’s no VAT on apples, milk, or tea, but there is on ice cream, cake decorations, cereal bars, and – crucially – crisps. This was a problem for Proctor & Gamble, producers of Pringles, who would rather not have had to pay a tax bill of around £100m if Pringles were considered crisps.

How could Pringles not be crisps? Well, they’re described on the packaging as a “savoury snack”, and in 2008 a judge ruled that since the type of Pringles in question were only 3% potato flour (and 39% vegetable oil) they couldn’t be said to be “made of potato flour”, and therefore, they weren’t crisps. What they were instead is debatable – but VAT-free, anyway. But in 2009, HMRC appealed and despite Proctor & Gamble’s strenuous arguments that there’s nothing crisp-like about a Pringle, HMRC won and the Pringle was ruled to be a crisp after all.

5. Re A (conjoined twins)

In the second half of this list, we look at some of the more unpleasant (though still odd) cases that the law has had to address. Re A was a case in England in 2001, where two twins – Gracie and Rosie – were born joined at the abdomen, with Rosie dependent on Gracie to oxygenate her blood. If surgically separated, Gracie had a strong likelihood of survival, but Rosie would die. But if left conjoined, both twins were unlikely to see their first birthdays.

Initially, a judge had ruled that separating the twins would not be murder, but “passive euthanasia”, although the Court of Appeal rejected this ruling. Instead, they argued that the defence of necessity could be used, and that the surgeon would not have mens rea (criminal intent implying culpability) for murder, as he would be carrying out the operation to save Gracie rather than kill Rosie. The operation went ahead, and Gracie is now a teenager who aspires to become a doctor herself.

6. R v Dudley and Stephens

Necessity isn’t always an adequate defence against murder, and that was vividly shown in the case of R v Dudley and Stephens. In 1884, Tom Dudley, Edwin Stephens, Edmund Brooks and Richard Parker were shipwrecked and adrift in a lifeboat 700 miles from the nearest land with no freshwater and only two tins of turnips to eat. This was on the 5th July. By 17th July, they had eaten the turnips and the entirety of a turtle they had managed to catch, and by 24th July, Parker had slipped into a coma. Realising there was no other way to survive, Dudley and Stephens killed Parker, and the three remaining men (including Brooks) resorted to cannibalism in order to survive. On the 29th of July, they were rescued. When the case was brought to trial, public opinion was highly sympathetic to Dudley and Stephens, to the extent that their defence was paid for by public opinion. At the same time, the judiciary wanted it established that necessity was not a defence for murder. The ultimate outcome of the case was something of a compromise: Dudley and Stephens were convicted of murder, but sentenced to just 6 months in prison.

7. Hollywood Silver Fox Farm v Emmett

If you’ve ever been irritated by a neighbour who deliberately turned their music up to annoy you, you have the Hollywood Silver Fox Farm to thank for the fact that you’re in the right and they’re in the wrong.

But in this case, it wasn’t about loud music. The neighbour, Emmett, had fallen out with the owners of the Hollywood Silver Fox Farm, and tried to disrupt their business of breeding silver foxes for the fur industry. Silver foxes are extremely nervy creatures and are likely to miscarry if disturbed when pregnant, so Emmett got his son to fire a gun repeatedly on the border between his land and the fox farm’s breeding pens, in order to upset the foxes and damage his neighbour’s business. In court, Emmett defended his actions by saying the foxes were unusually sensitive and he had the right to use his land in a reasonable manner. But the court ruled that no one has “the absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours”. And thank goodness for that.

8. R v Thabo-Meli

If you thought R v Dudley and Stephens was gruesome, you might want to skip past this one! In 1954, four men in a criminal gang decided to commit a murder and make it look like an accident. They brought their victim to a hut, got him heavily drunk, and hit him around the head with the intent of killing him. Believing they had killed him (although they had only knocked him unconscious), they threw his body over a cliff. He survived that, too (!), but later died of exposure.

To commit murder, you need to have a mens rea (guilty mind) and actus reus (guilty deed) at the same time – killing someone when you didn’t intend to isn’t murder, and thinking of killing someone but not doing it isn’t murder either. In court, the gang argued that they had intended to kill him in the hut, and actually killed him by leaving him exposed to the elements at the base of the cliff – but that  mens rea  and actus reus had not happened at the same time – in much the same way as if you thought of your friend “I wish he were dead!” and then accidentally dropped a piano on them two months later, the earlier thought wouldn’t make the accident count as murder. But if this seems absurd, be reassured – the ruling said that it was all part of the same act, and found them guilty of murder.

9. R v Rabey

Wayne Rabey was a 20-year-old geology student in Canada in 1980, who was interested in a female student in his class. So far, so much like normal university life. But when they were studying together, Rabey found a letter than the woman had written to a friend of hers, where she said that Rabey “bugged” her, and described him as “nothing”, while also mentioning that she was interested in someone else.

When Rabey met her in the corridor later that day, he asked her what she thought of him. She told him she saw him as a friend, and he attacked her and hit her with a rock sample (being a geology student, he had this to hand). At the trial, he claimed that he had suffered such a psychological blow that he had slipped into a state of automatism, but that this was a one-off and wasn’t likely to happen again; it was “non-insane automatism”. The court held – and the Supreme Court, following an appeal, agreed – that if he had entered a dissociative state, this was “insane automatism” requiring psychological treatment, and non-insane automatism wouldn’t count as a defence – presumably to the relief of fellow geology students everywhere.

10. Presho v Doohan

In the 1970s, Neville Presho, an engineer, visited the remote Tory Island off the north-west coast of Ireland and fell so deeply in love with it that he gave up his career to make a film about life there. In 1982, he bought a house on the island, though he then settled down in New Zealand. Ten years later, he received a request to buy the house. The prospective buyer offered just a seventh of the price that Presho had asked, so he turned the offer down. In 1994, he received a letter from the local council saying that storm damage had left his house in a dangerous state (which seemed unlikely given its metre-thick stone walls), so he went to visit the island and see. He arrived to find his house had vanished without a trace – and the hotel opposite had extended its car park on to the land where the house had once stood. The disappearance of the house seemed so bizarre that Presho suffered a mental breakdown.

After long investigation, it transpired that the house had burned down in an arson attack. Presho took the owner of the hotel, Patrick Doohan, to court, and though the arson could not be proven to have been carried out by Doohan, Presho was awarded damages for trespass and interference, as Doohan could be shown to be responsible for removing the remains of the house and had gained from its destruction. In 2013, Presho said, “The island is lovely. What happened on the island with the house is very sad and it has caused lots of problems for me. But at the end of the day, you just have to forgive everybody, because you can’t hang on to everything.” Have these weird and wonderful cases left you eager to learn more about Law? If so, you should take a look at our Law, Politics and Economics and Law and Trial Advocacy courses now! Image credits: lady justice ; case books ; cricket ; contract ; pringles ; surgeon ; turnips ; silver fox ; cliff ; geode ; empty  field .

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Cases only appear here a few weeks before the appeal is due to be heard by the Court. Lists of cases seeking permission to appeal to the Court appear on the monthly lists published on our Permission to appeal page , once such an application is determined.

The abbreviations 'FC' and 'AP' stand for 'Funded Client' and 'Assisted Person' respectively. They denote a party in receipt of legal aid - the former in respect of cases from England and Wales and from Northern Ireland and the latter in respect of cases from Scotland.

The Current cases table below can be sorted either in ascending or descending order by clicking on the following title headings:

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  12. Case Studies Archive

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