High Court Of England Research Articles

Recognising foreign solvent proceedings under the UNCITRAL Model Law on Cross-Border Insolvency: the Singaporean approach in Ascentra Holdings, Inc v SPGK Pte Ltd [2023] 2 SLR 421

To promote cooperation among stakeholders in different jurisdictions to facilitate coordinated insolvency proceedings, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on Cross-Border Insolvency (MLCBI) in 1997. The MLCBI harmonises certain procedural aspects of the cross-border insolvency process, though states may choose to make modifications when adopting the MLCBI in their own legal systems. This was completed in Singapore in 2017, and the Singapore Model Law (SML) can now be found in the Third Schedule to the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (IRDA 2018). One topic that has been the subject of much debate internationally is whether foreign solvent proceedings can be recognised under the MLCBI or the corresponding provisions in various jurisdictions: the Nevada Bankruptcy Court first answered this question in the affirmative, but this was explicitly rejected by the High Court of England and Wales (EWHC) in Re Sturgeon Central Asia Balanced Fund Ltd (in liquidation) (No 2) (Re Sturgeon). In Ascentra Holdings, Inc (in official liquidation) v SPGK Pte Ltd (Ascentra), the Singapore Court of Appeal (SGCA) held that foreign proceedings concerning solvent companies may be recognised under the SML. This commentary addresses the salient points of the SGCA's judgment and highlights the positive impact of this gradual harmonisation of the approaches taken in different jurisdictions to the MLCBI. Through a comparative analysis of the conflicting Re Sturgeon decision, three additional justifications based on the preparatory documents pertaining to the MLCBI, relevant authorities in the UK and a purposive reading of the MLCBI are provided for the approach in Ascentra. It is contended in closing that these reasons support the argument for definitively overruling the Re Sturgeon decision in the UK.

ClientEarth v Shell plc and the (Un)Suitability of UK Company Law and Litigation to Pursue Climate-Related Goals

Abstract In February 2023, ClientEarth filed a derivative claim in the High Court of England and Wales against the Board of Directors of Shell plc for alleged breaches of their duties under the Companies Act 2006. According to ClientEarth, Shell’s Board of Directors has failed to put in place an energy transition strategy consistent with the Paris Agreement, increasing the exposure of Shell plc to climate risks and hindering its long-term commercial viability. This analysis assesses the legal grounds of ClientEarth’s claim in light of the UK’s company law framework, and the High Court’s judgements of May and July 2023 dismissing ClientEarth’s application. It argues that, despite the lack of solid legal grounds for ClientEarth’s derivative claim, this case may serve to advance climate-related goals. More generally, the analysis reflects on how this dispute evidences the growing gap between the objectives of environmental law on the one side and those of company law on the other side.

The Right to Be Forgotten in the UK: A Case Note on the English and Welsh High Court Reasoning in NT1 & NT2 v. Google and the Post-Brexit Prospects in the GDPR era

The joined cases NT1 & NT2 present the first claim before the High Court of England and Wales (the Court) on the right to be forgotten, established by the Court of Justice of the European Union (CJEU) in the seminal Google Spain case. Both claimants, NT1 and NT2, had submitted a request for the de-listing of search results related to their prior criminal convictions. This case note considers how the Court was therefore faced with the question how to strike a balance between, on the one hand, the right to privacy, and, on the other hand, the publicity of criminal trials. In deciding upon this question, the Court notably weighed both EU and national law sources. It considered three main criteria: the nature of the offence, the public interest in the disclosure of the information concerned, and the rehabilitation of the claimant. This case note argues that the opposing conclusions reached in either of the joined cases are exemplary of the way these three criteria are embedded in the broader common law understanding of privacy and the concept of rehabilitation after criminal convictions. As regards the first criterion, on the nature of the offence, the joined cases suggest that if the offence does not involve dishonesty or is old and ‘not serious’, there is a greater chance that the Court does not consider it necessary for the information to remain public. As regards second criterion, on the public interest, it appears that if the claimant is active in public life in a manner related to the offences, this enhances the public interest in the information. Regarding the third criterion, on rehabilitation, it appears that the Court attaches great value to the concept of remorse for past convictions. The case note embeds these judicial considerations in the emphasis on ‘privileged principles of open justice’ in the English and Welsh common law jurisdiction, which have inhibited the post-war revolt to develop a strong right to privacy in civil law jurisdictions on the European continent. Finally, the case note reflects on post-Brexit data protection standards in England and Wales. Whilst assessing that courts will not be able to easily dismiss the relevance of CJEU case law on data protection, the case note identifies several stumbling blocks to lasting EU-UK equivalence on data protection laws and concludes that if anything, Brexit will diminish legal certainty for citizens and data subjects in England and Wales.

Can the courts of England and Wales establish a ‘character of copying’ in the assessment of similar fact evidence for cases regarding musical copyright?

Music as a form of expression presents numerous challenges when establishing the correct approach under the law of copyright, including what standards should be applied, and what evidence should be accepted to support or deny claims of copying by one artist of another. The High Court of England and Wales notably considered similar fact evidence in music copyright in Edward Christopher Sheeran MBE & Ors v Sam Chokri & Ors in 2019. Whilst the case has been set down for trial in 2022, an interlocutory hearing before Nugee J considered whether or not prior examples of copying by Sheeran supported a claim of infringement in ‘Oh Why’ by Chokri. Nugee J concluded that the inclusion of this evidence ‘could be logically probative’.2 He applied the decision of the House of Lords in O’Brien v Chief Constable of South...

Применение технологии искусственного интеллекта в системе гражданского судопроизводства США

Introduction: in the era of the active introduction of digital technologies, more and more processes are being automated and smart machines are taking over the work of people. Even at the end of the 20th century, automatic spell-checking and search engines were perceived by many as “highly intelligent” information technologies. Currently, such processes have become completely trivial for most people and have given way to more advanced technologies. The intelligent face recognition systems installed in public places and airports allow you to verify a person’s identity, as well as assist in the capture of criminals. The smart assistants in mobile devices, for example, Google Maps, provide additional information about the destination (working hours, the name of the organization). However, there is more and more debate about the introduction of artificial intelligence technologies in the judicial process. Many experts in the field of information and communication technologies, as well as practicing lawyers, argue that thanks to the accumulated experience and judicial practice, it is possible to predict and make court decisions based on certain algorithms for certain categories of cases. This practice already exists in the system of alternative settlement of civil disputes. The first such decision was made by a robot mediator back in 2019 in the High Court of England and Wales. To resolve the dispute, the Smartsettle ONE system developed by the Canadian company iCan Systems was used. The use of artificial intelligence technology allowed resolving the dispute between the parties and coming to an agreement in less than an hour. The legislator approaches the issues of the introduction of artificial intelligence technology in the system of state courts more carefully. However, court cases do not always require a comprehensive individual approach to decision-making and many cases can be processed automatically, at least, partially. In this regard, it seems appropriate to explore in the paper the main opportunities and risks of using artificial intelligence through the example of the civil justice system of the United States of America. The purpose of the study is achieved by answering several questions: how can artificial intelligence be useful for courts? What mechanisms of the justice system need to be improved for the effective operation of artificial intelligence systems? What forms of artificial intelligence exist in the US civil court system? How can courts and judges work with artificial intelligence under the standards of a fair procedure for considering civil disputes? The methodology is based on a theoretical approach to the study of the most commonly used artificial intelligence technologies in the US civil justice system, as well as a number of national laws and other regulations. Based on the analysis of the theoretical data obtained, in the paper, the author analyzes the current trends and mechanisms for resolving civil disputes using artificial intelligence systems and also highlights some related problems. The results of the research can be used in determining the key goals and objectives of a procedural nature, improving the functioning of judicial and non-judicial organizations, law enforcement, research activities, as well as in teaching activities, in particular, during lectures and seminars on courses of private international law and civil procedure. Conclusions: increasing the level of awareness of participants in civil law disputes about current trends and tools for the administration of justice contributes to the development of the institution of civil proceedings, as well as contributes to increasing transparency and increasing the degree of trust of citizens in the judicial system as a whole.

Crowter v Secretary of State for Health and Social Care [2021] EWHC 2536: Discrimination, Disability, and Access to Abortion.

In a recent case before the High Court of England and Wales, Crowter v Secretary of State for Health and Social Care, three claimants challenged the disability ground for abortion contained in section 1(1)(d) of the Abortion Act 1967. It was argued on behalf of the claimants that this provision was incompatible with a number of rights protected by the European Convention on Human Rights. Among the arguments made was a claim that this provision perpetuates discriminatory attitudes and negative stereotypes towards disabled people. While the case was rightly unsuccessful, as restricting or removing section 1(1)(d) would only force pregnant people to continue pregnancies in difficult circumstances, the claim around discrimination carries some weight. The High Court rejected this line of argument, missing an opportunity to consider the ways in which the Abortion Act is both inadequate in relation to access to abortion and perpetuates stigma towards disabled people. However, the reform required to address this must take place in Parliament and cannot be done by the courts.

Damages for reputational harm: can privacy actions tread on defamation’s turf?

ABSTRACT In four recent cases, the High Court of England and Wales has had to consider whether damages for reputational harm can be recovered in a claim for misuse of private information (‘MOPI’). This is an important issue which sharpens focus on the precise boundaries between privacy and defamation law. And yet it is a question on which the court is currently divided, with different judges coming to different conclusions on whether, and on what basis, reputational harm damages can be awarded in a privacy claim. This article argues that the key to resolving this issue is to better understand: (1) the precise interests protected by defamation and MOPI; and (2) how the interests protected by each tort are tied to the available heads of damage. Unpacking these points in turn, the article explains why damages for reputational harm should be restricted to defamation and be unavailable in a MOPI claim.

Municipio de Mariana v BHP Group: Implications of the UK High Court’s Decision

The High Court of England and Wales in its November 2020 judgment in Municipio de Mariana v BHP Group1 (BHP) declined jurisdiction to hear the case initiated by victims of the Fundão Dam collapse in Brazil on the grounds of abuse of process. The decision raises serious questions about the Court’s willingness to vindicate the fair trial rights of victims of human rights abuses linked to multinational enterprises (MNEs). In this judgment, Turner J also made obiter comments on the possibility of staying the case on application of Article 34 of the Recast Brussels Regulation (Recast Regulation),2 the doctrine of forum non conveniens (FNC), and/or the Court’s case management discretion.

“Enemies of the people”? Diverging discourses on sovereignty in media coverage of Brexit

In November 2016, The Daily Mail ran a cover story with the now infamous title “Enemies of the People” attacking the three judges of the High Court of England and Wales who had ruled that the UK Government needed Parliament’s consent to give notice of Brexit. Debates on sovereignty were not only reflected on the pages of the print media but were often also steered by them as political players with their own agenda. This paper explores how the topic of sovereignty was represented by the British media using a qualitative content analysis of the most shared online articles on Brexit and a narrower subset of editorials in right-wing and left-wing newspapers. The paper shows that the left–right divide mattered greatly for how sovereignty was portrayed in pro-Leave media, but not at all in the pro-Remain media. While in the period before the referendum coverage of Brexit was marked by a conflict between national and supranational sovereignty, after the referendum the conflict between popular and parliamentary sovereignty became more prominent. Changes in the frames deployed over time suggest that newspapers instrumentalized some concepts of sovereignty to promote their agenda. Finally, the fact that some positions (such as the left-wing pro-Leave defence of democratic sovereignty) were almost absent in media discourse had important consequences for the public debate on the topic.

Hinduja Brothers: The Edgy Family Business at the Third Generation

The Hinduja Group, a closely held conglomerate, is among the world’s richest and valued centurion family business. Second-generation brothers are known for fellowship, legacy and togetherness. The four brothers’ sibling partnerships worked successfully for 50 years. They see all businesses as the Hinduja family’s business and not of any individual or any individual branch’s business. The third generation holds the reins and is working closely with the fourth generation. The family has a fortune worth $11.2 billion, which now stands disputed because the letter that all four brothers willingly signed in 2014 is now being contested in a legal battle in 2020. According to the letter, the financial assets of each brother belonged to every other brother and that each of them would appoint the others as their executors. The issue in the Hinduja family came in the light at the cousin’s consortium, when Srichand Hinduja’s daughter Vinoo moved to High Court in England, for the transition of ownership, seeking control of Switzerland-based Hinduja Bank for her family. The Hindujas face the twin threats of embarrassing exposures and a fragmentation of the family fortune at the third generation.

Capturing and promoting the autonomy of capacitous vulnerable adults

According to the High Court in England and Wales, the primary purpose of legal interventions into the lives of vulnerable adults with mental capacity should be to allow the individuals...

Elusive Carriers, Time Bars, and Salvation Through Arbitration

Identifying the correct carrier to sue is a perennial problem. The cargo claimant’s choice of whom to sue is made even more difficult where the carriage of goods involves transport intermediaries or a complex chain of charters. Stringent time bars and the need to issue proceedings against the right party, and in a competent forum, further raise the stakes and add to the urgency of the claimant’s choices. Three recent decisions of the High Court of England and Wales involving similar facts illustrate the potential pitfalls posed by the identity of carrier issue, as well as the possibilities of exercising judicial discretion to extend the time for commencement of arbitration proceedings where the carrier’s misleading conduct has contributed to the time bar being missed.

References to the Court of Justice of the European Union: Experiences of a National Judge 2004–2019

This article presents the experiences of one national judge of 14 preliminary references made by the High Court of England and Wales to the Court of Justice of the European Union in intellectual property cases during the period from 2004 to 2019. The references are discussed in chronological order, and some conclusions are then drawn concerning the roles both of national courts and of the CJEU.

Preliminary ruling to the CJEU on geographical boundaries of UCD novelty assessment

Abstract Beverly Hills Teddy Bear Company v PMS International Group Plc [2019] EWHC 2419 (IPEC), High Court of England and Wales, 17 September 2019 The High Court of Justice of England and Wales has sought guidance from the Court of Justice of the European Union (CJEU) as regards whether the disclosure of a design outside the Community can still qualify for protection within the Community.

Radio stream aggregator TuneIn held to infringe rightholders' copyrights

Abstract Warner Music UK Ltd v Tuneln Inc [2019] EWHC 2923 (Ch) The High Court of England and Wales has held that radio stream aggregator TuneIn was in some cases infringing Warner's and Sony's copyrights by providing links to online streams of radio stations. The Court considered it a test case, and the parties submitted that the decision would no less than either ‘fatally undermine copyright’ or ‘break the internet’. In the finely nuanced judgment by Birss J, the CJEU's principle that linking to unlicensed content may infringe copyright was reinforced.

Glaxo gets puffed out: UK High Court finds colour purple not distinctive for asthma inhaler

Abstract Glaxo Wellcome UK Ltd v Sandoz Ltd [2019] EWHC 2545 (Ch), High Court of England and Wales, 4 October 2019 The High Court has dismissed an action for passing off bought by Glaxo against Sandoz in respect of use of the colour purple for its AirFluSal Forspiro inhaler.

Charlotte Tilbury succeeds on copyright claim against Aldi lookalike

Abstract Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473 (Ch) The High Court of England and Wales has found that discount supermarket Aldi had copied claimant Charlotte Tilbury’s artistic works in creating its cheaper make-up product. The case demonstrates the tools available to brands in tackling lookalikes (or ‘dupes’) and may provide lessons on how designers can build into their products certain protectable features that increase the chances of being able to repress unauthorized imitations.

A Sea Change in the Law of Contract Interpretation?

This article challenges the recent extra-judicial argument of Sir Geoffrey Vos, Chancellor of the High Court of England and Wales, that there has been a “distinct sea change” in the law of contract interpretation as a result of the UK Supreme Court’s decisions in Rainy Sky SA v Kookmin Bank, Arnold v Britton and Wood v Capita Insurance Services Ltd. He suggests that these decisions have the effect that Lord Hoffmann’s well-known restatement of the law in Investors Compensation Scheme Ltd v West Bromwich Building Society, particularly his Lordship’s fourth and fifth principles, no longer represent the law. In his view, the position now is that a court must give the words of a contract their plain meaning except “in a most exceptional case or a case of obvious absurdity”. However, Professor McLauchlan argues that Sir Geoffrey reads more into the decisions than is warranted by the Supreme Court’s reasoning and that Lord Hoffmann’s restatement has survived largely unscathed. In substance, the reasoning spelt out what was either explicit or implicit in the restatement in the first place.

The Evolution of Copyright Website Blocking In the UK: Live Blocking Orders

Since the first copyright website blocking order issued in 2011, an evolution has occurred in the UK regarding — among other things — the type of blocking. Recently, the High Court of England and Wales granted the application of the Football Association Premier League for a live blocking order against a number of major UK ISPs. The court held that it had jurisdiction under s.97A of the Copyright, Designs and Patents Act to order relevant ISPs to temporarily block access to streaming services giving unauthorised access to the right holder’s content (football matches). This contribution discusses the implications of these decisions against earlier UK case law and comments on possible future developments of s.97A orders.

High Court of England and Wales considers ‘right to be forgotten’ for the first time

High Court of England and Wales considers ‘right to be forgotten’ for the first time