Permission to appeal decisions by UK Supreme Court
London Metal exchange consultation; Trunki suitcase design copyright; Subway 'hot food' tax; book publication injunction.
19 December 2014
The Supreme Court has announced its decision on four applications for permission to appeal of particular public interest, highlighted below. Each of these decisions was made by a panel of three Supreme Court Justices following a review of the relevant written submissions.
1. R (on the application of United Company Rusal plc) (Appellant) v The London Metal Exchange (Respondent)
The Supreme Court has refused United Company Rusal's application to appeal the Court of Appeal of England and Wales' decision in a case on the procedural fairness of a consultation process carried out by London Metal Exchange.
The appellant produces metals which are traded through the respondent, the London Metal Exchange (LME). Metals traded on the LME are held in approved warehouses. From 2008 long delays developed in obtaining metals stored at certain warehouses, which the LME sought to address. It consulted its members on a proposed new rule which would regulate the amount of metal an affected warehouse could accept. The appellant complained that the consultation notice failed to refer to the only practical alternative to the new rule, which was a rent ban when delays reached a certain point. The LME had considered this option but concluded that it carried a high and well known legal risk on competition law grounds and argued that it was under no duty to explain the rent ban option in the consultation.
The legal issue in this case is whether the respondent should have been afforded a wide degree of discretion in discharging its duty of procedural fairness in its consultation; whether the duty was less exacting in a commercial setting and whether the adequacy of disclosure can be assessed by reference to documents other than the consultation document itself.
The Supreme Court has declined to hear United Company Rusal's appeal and the Court of Appeal judgment therefore stands:
The substantive text of the Supreme Court's Order reads:
"The Court ordered that permission to appeal be refused because the application does not raise an arguable point of law."
2. PMS International Limited (Respondent) v Magmatic Limited (Appellant)
The Supreme Court has granted permission for Magmatic to appeal the Court of Appeal of England and Wales' decision in a case regarding the Community Registered Design for its Trunki suitcase. The appellant manufactures and sells "Trunki" children's ride-on suitcases. It has a Community Registered Design ("CRD") in respect of its design for the Trunki.
The representations used in the appellant's CRD are rendered drawings with greyscale tonal gradations and some differences in tone between different parts of the product, but no surface decoration. The respondent's "Kiddee Case" children's ride-on suitcases are decorated to look like animals or insects. The appellant states that these cases infringe its CRD.
The legal issue in this case relates to the significance attached to the fact that a graphical representation of a Community Registered Design shows no surface decoration.
The Court of Appeal decision being appealed is:
3. Sub One Limited t/a Subway (In Liquidation) (Appellant) v The Commissioners for Her Majesty's Revenue and Customs (Respondent)
The Supreme Court has refused permission for Sub One Ltd to appeal the Court of Appeal of England and Wales' decision in a case about the level of tax applied to its toasted sandwiches.
The appellant sells toasted sandwiches ("Subs") and a further product called 'meatball marinara' at the well-known Subway franchise. HMRC assessed these products as "standard rated" for VAT (rather than "zero-rated") on the basis that they were "hot food".
The legal issue in this case is whether the relevant tax legislation was compatible with EU law, and in particular whether it complies with the principle that legislation imposing VAT should be objective in character and legally certain. In the alternative, if the legislation is found to be EU law compliant, the issue is whether the approach previously taken the UK courts and tribunals represents an "entrenched attitude" to the legislation and whether the fact that competitors of the appellant received a benefit from an earlier misapplication of the legislation amounted to a windfall arising from an "unlawful act", with the consequence that the appellant was not entitled to be treated in the same way.
The Supreme Court has declined to hear Sub One Ltd's appeal and the Court of Appeal judgment therefore stands:
The substantive text of the Supreme Court's Order reads:
"The Court ordered that permission to appeal be refused because the application does not raise an arguable point of law. In relation to the point of European Union law said to be raised by or in response to the application it is not necessary to request the Court of Justice to give any ruling, because the Court's existing jurisprudence already provides a sufficient answer."
4. OPO (by his litigation friend BHM) and another (Respondents) v MLA (Appellant)
The Supreme Court has granted MLA permission to appeal the Court of Appeal of England and Wales' decision in a case regarding the temporary injunction of the publication of an autobiographical book.
The appellant is a well-known performer. He suffered sexual abuse as a child which led to episodes of severe mental illness, about which he has spoken publicly in the past and wishes to recount in a forthcoming autobiographical book. He has a son, the respondent, who lives abroad and who suffers from a number of health issues. His mother is concerned that publication of the book will come to the boy's attention and cause him serious harm. She obtained on the respondent's behalf an injunction to restrain publication on the ground that it was arguable that the publication fell within the scope of the tort of intentionally inflicting harm and that he was likely to establish at the trial that publication should not be allowed.
The legal issue in this case is whether the tort in Wilkinson v Downton applies only to false words targeted at an individual, or may apply to publication of true words to the world at large which might result in harm if a particular individual reads it. It also considers whether the Court of Appeal wrongly applied s 12(3) Human Rights Act 1998 when granting an interim injunction to restrain the publication in this case.
Please note that reporting restrictions apply to this case.
The Court of Appeal decision being appealed is:
Other results of the most recent round of permission to appeal applications will be published in the next week or so on the Court's website.