Can the marketing clout of famous sports personalities, musicians and other so-called ‘influencers’ be measured by the level of their social media exposure? Yes, it can, the High Court has ruled in a case concerning a football shirts contract.
A sportswear company had an exclusive contract with a Premiership football club in respect of the manufacture and sale of replica team shirts. As the end of the contractual term approached, the club entered into negotiations with a rival manufacturer which it proposed to appoint in the company’s place.
The rival manufacturer offered the club £30 million per season, plus a percentage of profits on sales achieved. It undertook that the shirts would be sold in not less than 6,000 stores worldwide and that its marketing campaign would feature global superstar influencers of the calibre of basketball player Lebron James, tennis champion Serena Williams, and top-selling recording artist Drake.
Under the contract, the company had a right to have its deal with the club renewed if it made a matching offer. The club, however, took the view that the company’s offer was less favourable than that of the rival manufacturer. The company’s response was to launch proceedings on the basis that the club was contractually bound to accept its offer.
In dismissing the company’s claim, the Court found that the calibre of the influencers named in the rival manufacturer’s offer could be empirically calculated by reference to their social media exposure. It noted that appearances on social media can be counted and that various repeatable methods of valuing them are in widespread use.
The company’s counter-offer was less favourable to the club, in terms of marketing, because it did not match the rival manufacturer’s commitment to use the services of influencers of the calibre of the three identified celebrities. The club was thus not obliged to enter into a new contract with the company.
Pleas of poverty are commonplace in divorce cases, but family judges are well able to discern whether they are true or false. In one case, a property developer who fell heavily into arrears on maintenance payments to his ex-wife was ruled in contempt of court and warned to expect punishment.
Following the end of the couple’s long marriage, the sale of two properties, including the matrimonial home, was ordered with a view to providing the wife with around £950,000. The husband was also ordered to transfer to her £2 million and to pay her £10,000 a month in maintenance pending her receipt of that sum. He was later refused permission to appeal against those and other orders.
The wife launched further proceedings after the husband fell £117,500 behind on the maintenance payments. His response was that his business had fallen on hard times and that he simply could not afford to pay them. However, following a hearing, the High Court was satisfied so that it was sure that he at all times had the means to make the payments when they fell due.
The Court noted that he had received around £100,000 from the sale of watches and more than £40,000 from his share of a development property. He had throughout been renting a flat in a prime location at a cost of £8,100 a month. The evidence established that he had placed the wife at the bottom of his list of priorities and could have paid her maintenance had he wanted to.
Other defaults on the husband’s part included his failure to pay anything towards the mortgage on the matrimonial home, thus diluting its equity to the point where it was effectively worthless. A finding of contempt carries a maximum penalty of two years’ imprisonment or an unlimited fine. The Court, however, adjourned sentencing the husband so as to give him an opportunity to put in evidence concerning his current financial position. The Court would also consider his application to vary the maintenance payments downwards.
Managing an employee’s return to work after a long period of sickness absence can be a highly sensitive matter. A case in which a visually impaired nurse was awarded more than £30,000 in damages serves as an instructive illustration of how it should not be done.
The nurse, who was agreed to be disabled, was on sick leave for over two years before she was dismissed without notice. Her NHS trust employer’s attempts to redeploy her had been abandoned on the basis that there was no reasonable prospect of her returning to work as a nurse or in any clinical capacity.
In upholding her complaints of unfair dismissal and disability discrimination, an Employment Tribunal (ET) noted that there was no dispute that her dismissal amounted to unfavourable treatment. The reason for her dismissal was her long-term sickness absence, which arose as a consequence of her disability.
The ET found that reasonable adjustments that the trust could have made in order to ease her return to work included extending the redeployment process for a further period and providing suitable lighting, specialist computer software, training and a dedicated work station. Some adjustments had been offered, but occupational health reports supported her case that, had more been done, she would have been able to return to work in a suitable role, at least on a trial basis.
The trust’s plea that her dismissal was justified by the legitimate aims of promoting fair and consistent employment policies and prioritising patient care were rejected. She had not been a cost burden on the trust, given that the latter part of her sick leave was unpaid, and her dismissal was inconsistent with the trust’s own policy, in that she was willing and able to return to work. She was awarded a total of £32,709 in compensation, including £13,000 for injury to her feelings.
Restrictions on the use to which land can be put do not always stand the test of time and that is why the law permits their discharge or modification. In a case on point, the Upper Tribunal (UT) opened the way for construction of new homes on a site which had hitherto been protected from development.
The 1.83-hectare site was on the rural edge of a village. It was subject to a planning agreement, dated 1984, whereby the executors of the estate of a previous owner had consented to restrictions on its future development. They had done so as a quid pro quo after consent was granted for a house-building project on other land held by the estate. The agreement with the local authority forbade construction of any permanent non-agricultural buildings on the site.
The current owners of the site had, following an appeal to a planning inspector, been granted outline consent to build 30 new homes on it,12 of them affordable. However, the council – which had opposed the development contrary to the advice of its own planning officers – refused to waive the terms of the agreement, with the result that the development could not proceed. Faced by that impasse, the owners applied to the UT under Section 84(1) of the Law of Property Act 1925 for an order discharging or modifying the agreement.
In ruling on the matter, the UT noted that circumstances on the ground had changed greatly since 1984. The area had a pressing need for more new homes, especially social housing, and the proposed development would be a reasonable use of the site. It would positively benefit the local community and the building restriction was no longer of any substantial value or advantage to the council. The agreement was modified so as to enable the development to be brought to fruition.
The good reputation of lawyers and other professionals is the whole basis of their livelihoods and, if they are subjected to unjustified press criticism, it is only right that compensation is paid. In a case on point, a leading criminal barrister won libel damages from two national newspapers.
The offending articles concerned the circumstances in which a sportsman had been acquitted of an affray charge following a trial which attracted a great deal of public interest. They alleged that the barrister was reasonably suspected of professional negligence in respect of decisions she had made prior to the trial and that the prosecution had thereby not been properly mounted.
After she launched defamation proceedings, the High Court was told that those criticisms were entirely unjustified. The true position was that she had only briefly been involved in the case and had played no part in selecting charges or in deciding whether another sportsman should also be prosecuted. Due to a diary clash, she had bowed out from the case five months prior to the trial.
Having risen through the profession to become a QC, the barrister had appeared for the Crown in a string of high-profile trials. As a self-employed barrister, her good judgment and competence were two of her most important attributes and the false allegations had caused her considerable distress, striking at the very heart of her professional character. In the circumstances, the publishers of both newspapers agreed to pay her damages and legal costs in settlement of her claim.
One of the more draconian powers wielded by judges is to order compulsory winding up of companies that operate contrary to the public interest. However, the High Court ruled in a guideline case that two companies in the business of assisting their clients to avoid paying non-domestic rates (NDRs) do not fall into that category.
The companies operate a scheme whereby they establish single purpose vehicles (SPVs) in order to take leases of vacant commercial properties from their owners. That has the effect of shifting liability to pay NDRs from the owners – the companies’ clients – to the SPVs. The SPVs are themselves subsequently relieved of such liabilities by being placed into members’ voluntary liquidation.
The Secretary of State for Business, Energy and Industrial Strategy petitioned the Court under Section 124A of the Insolvency Act 1986, seeking orders compulsorily winding up both companies. It was submitted that their business models subverted the purpose of liquidations and that such misuse of the insolvency legislation demonstrated a lack of commercial probity.
In ruling on the matter, the Court acknowledged that the relevant arrangements were engineered solely to achieve a situation where the companies were able to obtain fees and their clients to avoid NDRs. The leases were artificial in the sense that they were not the product of arms-length negotiations, contained non-commercial terms and had no purpose other than to achieve those objectives.
In dismissing the applications, however, the Court noted that the Secretary of State did not contend that the incorporation of the SPVs, the grant of the leases or the entry into members’ voluntary liquidation were contrary to any specific provision of the insolvency legislation. Each transaction in the chain was legally genuine and effective and could not be viewed as a sham. The members’ voluntary liquidation genuinely involved the collection in and realisation of assets by liquidators with a view to distributing proceeds to members once all liabilities had been discharged.
The Court acknowledged that there was room for disagreement as to the ethics of the companies’ business methods. It could not, however, be said that to devise and implement a lawful scheme to avoid business rates is itself lacking in commercial probity or otherwise contrary to the public interest.
Whilst the schemes had revenue consequences for local authorities, there was no evidence that they caused harm to individual members of the public. As a matter of general principle, it was perfectly proper for companies as artificial constructs to be incorporated with a view to obtaining a fiscal advantage.
Directors who do not fully understand the complex duties they owe to the companies they serve expose themselves to a risk of personal liability. That was certainly so in the case of two honest businessmen who unwittingly made unlawful distributions from their company’s reserves prior to its insolvency.
When it entered liquidation, the company owed over £1.7 million to HM Revenue and Customs. Its two directors – who owned 80 per cent of its shares – had some years previously entered into profit extraction schemes whereby the company’s reserves were stripped out, principally via employee benefit trusts (EBTs), with an ultimate view to distributing them to shareholders.
After the company’s liquidators launched proceedings, the High Court noted that one of the former directors had testified that he saw no distinction between what was right for the shareholders and what was right for the company. The purpose of the EBTs was to make withdrawals from the company’s capital reserves in a tax-efficient manner for the benefit of shareholders.
Non-shareholder employees received no benefit and none of the distributions were reasonably incidental to the carrying on of the company’s business. They were not supported by board resolutions or minutes recording that the company’s overall financial position had been considered. The required formalities not having been complied with, the distributions were unlawful and void. The Court’s ruling opened the way for the liquidators to seek repayment of the sums so distributed for the benefit of the company’s creditors.
The Court acknowledged that its decision might appear harsh to the former directors, who were found to have acted honestly. Having failed to take independent legal advice, they had been seduced by the prospect of tax-free distributions into taking a risk they did not entirely understand.
When deciding whether to enforce non-compete covenants in employment contracts, judges often have to perform a delicate balancing exercise between protection of legitimate business interests and individual hardship. A High Court ruling in a recruitment industry dispute provided a perfect example of that happening.
A recruitment company in the education sector launched proceedings against five of its former employees after they took jobs with a rival business. The company argued that restrictive covenants in their employment contracts forbade them from working for a competitor for six months following their departure.
The five offered to give formal undertakings that they would not, during that period, solicit or deal with any of those named on an agreed list of the company’s clients. The company, however, took the view that that did not provide it with adequate protection and sought an interim injunction against them, preventing them from carrying out any work for their new employer for the requisite six months.
The five argued that the relevant covenant was not incorporated in their employment contracts, but the Court found that the company had in that respect raised a serious issue to be tried. It also accepted that, in the event of breaches of the covenants being established, an award of damages would not provide the company with an adequate remedy.
In refusing to grant the injunctive relief sought, however, the Court noted the terms of the non-solicitation and non-dealing undertakings that the five were prepared to give, both contractually and to the Court. Requiring them not to do any work for their new employer for an extended period would cause them obvious hardship and disrupt both their lives and the competitor’s business. There was no evidence that the competitor would be prepared to continue employing them on that basis and the balance of convenience therefore fell firmly in the five’s favour.
Creative people who are ‘employed to invent’ have historically enjoyed few rights to the financial fruits of their labour. However, in a landmark ruling that signals a significant change to that position, the Supreme Court awarded seven-figure compensation to a professor whose brainchild proved a money-spinner.
Whilst employed by a subsidiary of a multinational group, the professor invented a blood testing device for use by diabetics. The terms of the Patents Act 1977 meant that the rights to his invention belonged to his employer from the outset. They were assigned for a nominal sum to the group which, after being granted various patents, profited from the invention to the tune of over £24 million.
The professor launched proceedings under Section 40 of the Act, claiming that the patents arising from his invention were of outstanding benefit to his employer and that he was entitled to a fair share of the profits. His claim was, however, rejected by a hearing officer (HO) on behalf of the Comptroller-General of Patents and subsequently by the High Court and the Court of Appeal.
In upholding his challenge to that outcome, the Supreme Court ruled that the outstanding contribution test was met and that, in finding otherwise, the HO had focused excessively on the very large turnover and profits of the group.
Giving guidance for the future, the Court noted that tribunals should be very cautious before accepting arguments that a patent has not been of outstanding benefit to an employer simply because it has had no significant impact on the value of its sales or profitability. The professor was awarded £2 million, that sum representing 5 per cent of the profits generated by the patents.
If you are injured at work due to your employer’s failure to keep you reasonably safe, you should seek legal advice straight away. A livery stables worker who did just that after she was injured by a spooked horse won more than £90,000 in damages.
The experienced equestrian was exercising a horse that she had ridden many times before when it was startled by a piece of plastic packaging that had lodged in a hedgerow and which was fluttering in the wind. After shying and running out of control, the horse fell on her, causing a double fracture to her lower leg.
After she brought a claim against her employers, a judge found that the plastic debris probably emanated from a bale of fodder which had been opened at the stables. There was no adequate system in place to ensure that such debris was securely disposed of, rather than being allowed to escape into the open.
Everyone working at the stables would have been aware that pieces of plastic have a tendency to blow about in the wind and that horses can be spooked by a wide range of sometimes small stimuli. There was therefore a direct causal link between the employers’ breach of duty and the woman’s accident. She was awarded damages in the agreed sum of £93,142.
The jurisdiction of the English courts is not limitless and a debtor who is resident and domiciled overseas cannot be made bankrupt in this country unless it is shown that he ‘carried on business’ here. The High Court analysed the meaning of that phrase in a ruling of importance to insolvency practitioners.
The case concerned a businessman who was declared bankrupt after failing to make good on a personal guarantee he had provided in respect of a loan advanced to a company of which he was a director. He applied under Section 282(1)(a) of the Insolvency Act 1986 to annul the bankruptcy order on the basis that the courts of England and Wales lacked jurisdiction to make it.
Having emigrated to Australia with his family more than three years prior to the issue of the bankruptcy petition, he successfully argued that he was neither resident nor domiciled in England and Wales. However, in rejecting his application, a judge found that he had nevertheless carried on business in this country during that period.
In upholding his appeal against that ruling and granting the order sought, the Court noted that, although the company was registered in England, he was not its sole director or shareholder. The fact that Companies House had recorded his usual country of residence as England and Wales was also not decisive.
The Court noted detailed and unchallenged evidence that he had permanently made his home in Australia. The only business-related activity he had conducted in this country during the relevant period was to vainly explore options for rescuing the company from financial distress. That, by itself, was insufficient to establish that he was carrying on business in England and Wales at the material time.
There is nothing more important than personal liberty and, if you face proceedings that may result in your imprisonment, you have a right to be legally represented at public expense. The Court of Appeal powerfully made that point in the case of a mother who was jailed for repeatedly failing to cooperate in judicial attempts to reunite her children with their father.
Following the breakdown of the couple’s relationship, the mother remained in the UK with their three children whilst the father returned to their native Mexico. The mother’s and children’s immigration status in Britain was perilous and, after the father took action under the Hague Convention 1980, the mother was ordered to return the children to Mexico so that their father could have access to them.
Thereafter, the mother was accused of engaging in tactical manoeuvring in a bid to avoid compliance. Further orders were made and various deadlines were set for the children’s return to Mexico, but none of them were met. The father ultimately sought her committal to prison and, following numerous hearings and the imposition of three suspended sentences, she was jailed for four weeks.
In ordering her release after she had served nine days of that sentence, the Court expressed sympathy with the difficult position faced by the judge who had sentenced her. However, despite having been eventually granted non-means-tested legal aid, she had not been represented by a properly qualified lawyer at a number of hearings, including that at which she was jailed.
The Court accepted that imprisonment would have been the likely outcome, even had the mother been legally represented. However, she ostensibly wished to receive such representation and its absence amounted to a serious procedural irregularity. The mother’s appeal was allowed and the Court directed a fresh hearing of the father’s committal application before a different judge.
Objecting to a grant of planning permission is one obvious means of trying to block a development to which you object – but there are others that are less well known. In a case on point, residents of a leafy cul-de-sac saw off a neighbour’s plans to demolish his property and replace it with a residential care home.
The neighbour had been granted planning permission for his proposal, but objectors who lived in 14 nearby homes were undaunted. They pointed to identical restrictive covenants which dated back to the 1920s, when the cul-de-sac was laid out, and which featured in the title deeds of their own and the neighbour’s properties.
The covenants, amongst other things, dictated that no more than a single dwelling house could be constructed on each of the original plots and that they must not be used for any trade, business or profession, save that of a medical practitioner. The original developer of the cul-de-sac was a local doctor.
The neighbour accepted that the covenants, as drafted, precluded the construction of a care home on his land. However, he applied to the First-tier Tribunal (FTT) under Section 84 of the Law of Property Act 1925, seeking an order modifying the covenants in such a way as to enable the development to proceed.
In dismissing his application, however, the FTT noted that the care home would be taller than the property it replaced and would have a much larger footprint. The development might be a reasonable use of the land, but it would for the first time bring a commercial element to the exclusively residential cul-de-sac.
The development would have a substantial impact on the objectors’ amenities and would reduce the market value of the nearest neighbouring property by up to 15 per cent. In the circumstances, the covenants were in no way obsolete and delivered continuing benefits of substantial value to the objectors.
Lawyers often find themselves amidst the maelstrom of dispute when representing their clients and there is always a risk that they will themselves be targeted by those who fail to understand their role. A High Court case showed, however, that like anyone else, they are entitled to the full protection of the law.
The case concerned a solicitor who was engaged by a college to advise and assist in relation to disciplinary proceedings it had brought against one of its students. The student’s response was to cast aspersions on the solicitor’s honesty and otherwise vilify him on the Internet. The solicitor also received a string of emails from the student which he viewed as threatening or menacing.
After the solicitor launched defamation and harassment proceedings, the student failed to put in a defence to the claim. The Court found that the solicitor had established a good case that he had suffered, or was likely to suffer, serious harm to his reputation and that the student was set on intimidating him.
The Court issued a permanent injunction against the student, forbidding him from, amongst other things, harassing the solicitor or publishing defamatory statements about him. Any breach of that order would potentially be punishable by imprisonment. The student was ordered to pay £27,750 in legal costs.
Employees who suffer discrimination due to their philosophical beliefs are entitled to compensation – but how are such beliefs to be defined? The Court of Appeal tackled that burning issue in the case of a woman who was sacked for refusing to sign an agreement designed to protect her employer’s intellectual property rights.
On her engagement by a luxury fashion company as a market support assistant, the woman was asked to sign what was described as a copyright agreement. It provided, amongst other things, that any discovery or invention that she conceived during the course of her employment would be the property of the company.
The woman, who was a writer and film-maker, refused to sign the agreement on the basis that it might interfere with her private creative work. She said that it was of the utmost importance to her that she retained all rights in her own artistic output. The company proposed amendments to the agreement, clarifying that it had no interest in obtaining copyright to any of her personal work. She persisted in her refusal to sign, however, and was ultimately dismissed.
She later launched Employment Tribunal (ET) proceedings, claiming that she had suffered discrimination due to her conviction that individuals have the right to own intellectual property rights in their own creative works. Her claim was, however, rejected in a decision that was later upheld by the Employment Appeal Tribunal.
In dismissing her appeal against that outcome, the Court found that the cause of her refusal to sign, and ultimately her dismissal, was her concern or theory that the agreement, even in its amended form, leaned too heavily in favour of the company or failed sufficiently to protect her own interests. Such a debate or dispute about the wording of the agreement could not qualify as a philosophical belief within the meaning of the Equality Act 2010.
What was described as her crisis of conscience about signing the agreement was not the result of her belief, but of her wish to achieve greater protection for her own creative works. The requirement to sign the agreement was applied equally to all the company’s employees and was not intrinsically liable to disadvantage a group which shared the woman’s belief. It was in any event reasonable as a proportionate means of achieving the company’s legitimate aim of protecting its intellectual property.
Businesses which deliver products into the human food chain unsurprisingly have to submit to strict state regulation and it is only right that they should pay the costs of such scrutiny. The High Court made that point in closing an alleged loophole by which an abattoir operator sought to avoid payment of an £82,000 bill.
When a predecessor company entered voluntary liquidation, it owed that sum by way of a judgment debt to the Food Standards Agency (FSA) in respect of regulatory services. It had the same director as the operator which, following its demise, purchased all its assets and took over management of the abattoir.
The FSA argued that the liability to pay the sums owed by the predecessor company was inherited by the operator. When the latter declined to pay, the FSA resolved to withdraw its services, without which the abattoir could not lawfully remain open. It did, however, stay its hand after the operator launched judicial review proceedings.
In rejecting the operator’s challenge, the Court found that the relationship between it and the predecessor company was that of a proverbial phoenix rising from the ashes. The FSA’s power to withdraw its services extended to the operator despite the fact that it was not the company against which the debt judgment had been obtained.
The Court noted that, if the operator’s interpretation of the relevant regulations was correct, the FSA would be at the mercy of such phoenix arrangements. The person in control of a corporate entity would be enabled to avoid payment of arrears of regulatory charges by the simple expedient of purchasing an off-the-shelf company. The FSA was therefore entitled to withdraw its services until such time as the operator paid the predecessor company’s debt.
To what extent, if any, are employers liable for racial harassment of their staff by third parties? The Employment Appeal Tribunal (EAT) gave authoritative guidance on that issue in a case concerning a mental health nurse who was assaulted and racially abused by a patient.
The nurse, who is black and worked in a secure mental health unit, was punched in the face several times by the patient, who threatened to stab him with a pen. The attack was accompanied by an offensive remark referring to his race. The nurse later launched proceedings against his NHS trust employer.
In upholding his indirect discrimination claim, an Employment Tribunal (ET) found that the trust had failed to take adequate steps to ensure that every incident of racial abuse by third parties against its staff was reported. Through that inaction, a culture had developed whereby employees considered that it was pointless to report such incidents on every occasion. As a result, the risk of such abuse had been under-appreciated and dealing with it under-prioritised.
The ET, however, dismissed the nurse’s direct discrimination and harassment claims on the basis that the trust’s incident reporting failure was neither consciously nor subconsciously because of race. The fact that the abuse was racial in nature played no part in the mental process of management in failing to ensure that such incidents were properly reported.
In dismissing the nurse’s challenge to that part of the ET’s ruling, the EAT noted that the Equality Act 2010 imposes no explicit liability on an employer for failing to prevent third-party harassment. It rejected arguments that Section 26(1) of the Act should be interpreted so as to outlaw foreseeable and preventable third-party harassment without a requirement that the employer’s failures are themselves related to race.
Neither Directive 2000/43/EC (the Race Directive) nor any other provision of EU law required the UK government to enact a provision to that effect. The EAT reached its conclusions despite noting that liability for third-party harassment has, in certain circumstances, much to commend it. An application for a ‘leap-frog’ order, enabling the nurse to appeal directly to the Supreme Court, was refused.
If a property is registered in the names of joint tenants, there is a legal presumption that they own it equally and proving otherwise is always an uphill struggle. The point was made by a case in which a woman successfully fought off her ex-partner’s claim that he was the sole beneficial owner of their former matrimonial home.
The former couple, who had a young child, remained married but had been judicially separated by order of an Italian court. The home in London where they lived together for seven years had been bought for £542,000 and registered in joint names. The man nevertheless claimed that the entirety of the purchase price was directly or indirectly derived from his inheritance from a wealthy uncle in Italy.
The partially renovated property was currently empty and the woman applied under the Trusts of Land and Appointment of Trustees Act 1996 for its sale and the equal division of the proceeds. The man, however, sought a declaration that the woman held her joint tenancy on trust for him as the property’s sole beneficial owner.
Ruling in the woman’s favour, a judge was unconvinced by the man’s arguments that the property had only been placed in joint names in order to put his investment beyond the reach of fraudulent rival claimants to his uncle’s estate. The woman was pregnant and without income when the property was purchased and the evidence was entirely consistent with them having a common intention to set up home together. It had for years served as the matrimonial home.
The court noted that, at the time of the purchase, a box on a Land Registry form had been crossed, indicating that the couple held the property on trust for themselves as joint tenants. That amounted to an express and decisive declaration of trust, and the man had failed to establish that it should be set aside or rectified on the basis that it did not reflect the couple’s true intentions.
Data handlers operate under a range of legal responsibilities designed to ensure that personal information is not misused or abused. However, as a High Court ruling in a guideline case made clear, a balance has to be struck between such duties and the public interest in public authorities not being hampered in their pursuit of important objectives.
The case concerned the so-called ‘immigration exemption’ from the data handling safeguards enshrined in the Data Protection Act 2018. The exemption permits immigration officials to perform data profiling and other activities outside the protections that would otherwise be afforded to individuals by the Act.
Two campaign groups mounted a judicial review challenge to the exemption on the basis that it was incompatible with rights to privacy and protection of personal data guaranteed by the Charter of Fundamental Rights of the European Union. It was also said to conflict with the General Data Protection Regulation 2016/679 (the GDPR).
It was argued that the exemption is too open-ended and vague and cannot be viewed as a strictly necessary derogation from individual rights. There were no safeguards against its abuse or unlawful application and it prevented data subjects from checking that data being processed about them is accurate.
In rejecting the challenge, however, the Court found that the exemption was plainly enacted in pursuit of a legitimate aim – to promote the important public interest in effective immigration control. It fell within the margin of appreciation granted to EU member states by the GDPR and was sufficiently clear and comprehensible to be in accordance with the law.
The Court underlined that close consideration to individual cases must be given before the exemption is applied. Officials can only rely on it to the extent that strict adherence to the GDPR would be likely to prejudice effective immigration control. The Home Office had presented statistical evidence indicating that the exemption was used sparingly and only when considered necessary.
The authorship of a book, play or script involves much more than just the physical act of writing. The Court of Appeal made that point in the case of a woman who claimed to have inspired the screenplay of a successful film.
The film told the life story of a wealthy American socialite who aspired to be an opera singer. The woman, a professional opera singer, claimed that she had contributed much to the script whilst engaged in a romantic relationship with the screenwriter who was later credited by the film’s makers as its sole author.
Whilst acknowledging that her former boyfriend was the script’s principal author, she said that she had come up with the original idea, had contributed her technical musical know-how and was instrumental in the creation of characters and storyline. She launched proceedings seeking, amongst other things, recognition as the script’s co-author and a share of royalties generated by the film’s release. Her claim was, however, dismissed by a judge.
In upholding her appeal against that decision, the Court noted that, when considering whether collaboration in the creation of a literary work amounts to co-authorship, it can never be enough simply to ask who did the writing. The skill that goes into devising a plot and a panoply of other intellectual contributions can properly be seen as elements of authorship essential to the creation of a work.
The Court found that the judge had adopted an erroneous approach to his assessment of the evidence, failed to make important findings of primary fact, failed to take account of material matters and applied the wrong legal standards to the assessment of the woman’s contribution to the script. In the circumstances, the Court ordered a retrial of her claim before a different judge.