Case Preview: Stanford International Bank Ltd (In Liquidation) v HSBC Bank Plc

In this post, Emilija Lazarevic, a trainee solicitor in the litigation team at CMS, previews the decision awaited from the UK Supreme Court in the matter of Stanford International Bank Ltd (In Liquidation) v HSBC Bank Plc.

On 19 January 2022, the Supreme Court heard the appeal in Stanford International Bank Ltd (In Liquidation) v HSBC Bank Plc. The appeal turns on whether a company in liquidation can be considered to have suffered loss where, while it is still trading, its bank pays money out of the company’s accounts to discharge debts owed by the company. It is likely that this case will further set out the limits of the Quincecare duty, following a spate of recent high-profile cases in this area.

Factual Background

In April 2009 the claimant went into insolvent liquidation after being used as a vehicle for a Ponzi scheme fraud. It held accounts with the defendant.

The claimant’s liquidators brought a claim for a loss amounting to £116.1 million. A sum of £118.5 million had been paid out of the claimant’s accounts between August 2008, when the liquidators considered that the defendant should have frozen the accounts, and February 2009, when the defendant did freeze the accounts. The claimant contended that had the accounts been frozen by August 2008, the monies would have remained there rather than being paid away to holders of Certificates of Deposit, which were issued by the claimant.

Damages were sought by the claimant for breach of an implied duty owed by the bank to its customers, as explained in Barclays Bank plc v Quincecare Ltd [1992] 4 All E.R. 363. In this case it was established that “a banker must refrain from executing an order if and for as long as the banker is ‘put on inquiry’ in the sense that he has reasonable grounds (although not necessarily proof) for believing that the order is an attempt to misappropriate the funds of the company”.

Procedural History

The defendant sought a summary judgment and/or striking out from the High Court in respect of the claim, of which there were two elements. The first element related to the defendant’s alleged breach of implied duty, as considered in Quincecare. The second element concerned the defendant’s alleged dishonest assistance.

At first instance, the court granted the application in part. It was held that it was not appropriate to strike out or grant summary judgment in respect of the Quincecare breach. On the alleged facts, if the company’s accounts were frozen when they should have been, the claimant would have possessed an extra £118 million in assets, which would have allowed the liquidators to pursue the company’s own claims and distribute any winnings to the creditors. The liquidators were deprived of such opportunities owing to the defendant’s alleged breach, and the court considered this to be a real loss to the company.

The plea relating to dishonest assistance was struck out on the basis that dishonesty had not been pleaded against any particular individual working for the defendant. The defendant relied on aggregate information held by different individuals, and as those individuals could not be said to be dishonest, no case could be made against the defendant. The claimant argued that corporate recklessness could amount to dishonesty, but this was not accepted by the court.

The defendant bank appealed against the High Court’s decision not to strike out the loss claim, and the claimant appealed against the decision to strike out its claim of dishonest assistance.

The defendant’s appeal was allowed. The Court of Appeal held that, although if the accounts had been frozen at the appropriate time the claimant would have been able to pay its creditors once the insolvency process began, the defendant’s duty had been to the claimant alone and not the creditors (citing Singularis Holdings Ltd (in Liquidation) v Daiwa Capital Markets Europe Ltd [2018] EWCA Civ 84).

Furthermore, it was held that the previous judge had mistakenly confused the claimant company’s position before and after the inception of insolvency proceedings. In its view, the true distinction is between a company that is trading and a company in respect of which a winding up process has commenced, not between a solvent trading company and an insolvent trading company. If an insolvent company is trading, money paid to a creditor would reduce the assets of the company, but it would also reduce the company’s liabilities. In other words, the company’s overall net asset position would remain unchanged. On that basis, having more cash available upon the insolvency would be a benefit to the creditors rather than to the company itself while it was trading. As a result, the claimant was deemed to have suffered no loss and so the claim could not succeed.

The claimant’s appeal was dismissed. It was held that the previous judge was correct in stating that dishonesty could not properly be alleged by adding the knowledge of one innocent person to another (citing Armstrong v Strain [1952] 1 K.B 232 and Greenridge Luton One Ltd v Kempton Investments Ltd [2016] EWHC 91 (Ch)).

Comment

The Court of Appeal has limited the scope of the Quincecare duty by confirming that it cannot extend to a customer’s creditors. It has also established that negligent or reckless practices by banks will not be sufficient to fulfil the meaning of “dishonesty”, which is required for a dishonest assistance claim to succeed.

If the UK Supreme Court ruling favours the Court of Appeal judgment, this may deter future claimants from pursuing similar claims against banks that have been unknowingly involved in processing Ponzi scheme payments. Such a ruling would be welcomed by financial institutions that operate client accounts and process payments in accordance with client instruction.

This week in the UKSC – w/c 25th April 2022

This Week in the Supreme Court – w/c 25th April 2022

Hearings in the Supreme Court are now shown live on the Court’s website.

On Wednesday 27th April, the Court will hand down two judgments at 09:45 in Courtroom One.

The first is Commissioners for Her Majesty’s Revenue and Customs v Coal Staff Superannuation Scheme Trustees Ltd and will consider the UK tax treatment of “manufactured overseas dividends”. The citation will be [2022] UKSC 10 and the judgment being appealed is [2019] EWCA Civ 1610.
The second judgment being handed down is R (on the application of Coughlan) v Minister for the Cabinet Office [2022] UKSC 11, on appeal from [2020] EWCA 723. The Court will consider whether the voter identification pilot schemes that were implemented in the May 2019 local government elections were unlawful.

On Thursday 28th April 2022, the Court will hear the case of Hastings v Finsbury Orthopaedics Ltd and another (Scotland). The question the Court is asked to consider is did the lower courts in law by not holding that the hip replacement product used for the Appellant’s hip replacement was defective within the terms of the Consumer Protection Act 1987? This is on appeal from [2021] CSIH 6.

From Thursday 28th to Friday 29th April, the Court will hear an assessment of costs hearing in R (on the application of Haworth) v Commissioners for Her Majesty’s Revenue and Customs [2021] UKSC 25.

The following Supreme Court judgments remain outstanding: (As of 27/4/22)

The Law Debenture Trust Corporation plc v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) Nos. 2 and 3, heard 9-12 December 2019
BTI 2014 LLC v Sequana SA and Ors, heard 4 May 2021
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
Basfar v Wong, heard 13th-14th October
Secretary of State for the Home Department v SC (Jamaica), heard 19th October
Harpur Trust v Brazel, heard 9th November 2021
Guest and another v Guest heard 3rd December 2021
Fearn and others v Board of Trustees of the Tate Gallery heard 7th December 2021
Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC, heard 19th January 2022
Commissioners for Her Majesty’s Revenue and Customs v NCL Investments Ltd and another, heard 25th January 2022
R v Maughan, heard 27th January 2022
Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another and On Tower UK Ltd (formerly known as Arqiva Services Ltd) v AP Wireless II (UK) Ltd, heard 1st February 2022
DCM (Optical Holdings) Ltd v Commissioners for Her Majesty’s Revenue and Customs (Scotland), heard 8th February 2022
Competition and Markets Authority v Pfizer Inc and Flynn Pharma Ltd, heard 22nd February 2022
Hastings v Finsbury Orthopaedics Ltd and another (Scotland), heard 28th April 2022

Lord Kerr Essay Competition

Lord Brian Francis Kerr, Baron Kerr of Tonaghmore, PC was a Northern Irish barrister and a senior judge who was Lord Chief Justice of Northern Ireland and then a Justice of the Supreme Court of the United Kingdom. At the time of his retirement, he was the longest-serving Supreme Court Justice and the last original member of the Court.

Following his passing, the Human Rights Lawyers Association (HRLA) received a gift donation from his family to create an opportunity that celebrates the formidable legal career that Lord Kerr had through his influential judicial understanding of human rights and the law. From this gift, the HRLA and the Young Lawyers Committee (YLC) have created an essay competition that focuses on a contemporary human rights issue.

The UKSC Blog has partnered with the HRLA and, as an additional prize, the winning essay will be published on the UKSC Blog.

The essay question is:

“Is eco-anxiety capable of amounting to torture or to inhuman or degrading treatment or punishment, within the meaning of Article 3 ECHR?”

Further details and full rules can be found at www.hrla.org.uk. The deadline for entries is Friday 20 May 2022 – good luck!

Case Comment: Croydon London Borough Council v Kalonga [2022] UKSC 7

In this post, Jen Knibbs, an associate at CMS, comments on Croydon LBC v Kalonga [2022] UKSC 7, an important decision on whether a landlord can terminate a flexible tenancy agreement before the expiry of the fixed term if the tenancy agreement does not expressly provide for re-entry or forfeiture.

Background

Ms Chipo Kalonga (“Ms Kalonga”) was the tenant of a property in Croydon under a flexible tenancy for a fixed term of five years from 25 May 2015 to 24 May 2020 (the “Tenancy Agreement“). Croydon London Borough Council was her landlord (“Croydon“).

A flexible tenancy is a type of secure council tenancy which lasts for a fixed period of time, usually at least 5 years.

On 2 August 2017, Croydon served a notice on Ms Kalonga, which relied on grounds 1 and 2 of schedule 2 of the Housing Act 1985, seeking to terminate the Tenancy Agreement due to rent arrears and anti-social behaviour. The notice was in the standard form.

On 29 August 2017, Croydon issued a claim in the County Court at Central London seeking possession of the property. The claim was made on grounds 1 and 2 of schedule 2 of the Housing Act 1985. No claim was made on the ground of forfeiture.

In response, Ms Kalonga served a defence and counterclaim arguing, amongst other things, that the Tenancy Agreement did not include a forfeiture clause; Croydon had failed to serve a valid notice; and the claim was defective as a claim for possession of a flexible tenancy during the fixed term. Ms Kalonga defended the claim on the basis that it was only possible to determine a flexible tenancy, as is the case with fixed term secure tenancy, by terminating it in accordance with the forfeiture-like procedure in section 82(3) Housing Act 1985.

On 9 May 2019, the preliminary issue of “the correct manner in which to determine a secure flexible tenancy during the fixed term (including whether, and if so how, and principles relating to forfeiture apply)” was transferred to the High Court. The remainder of the claim and counterclaim was stayed pending the determination of this preliminary issue.

High Court

The High Court determined that the Tenancy Agreement did not contain a forfeiture clause and that without one, Croydon had no right to end the Tenancy Agreement before the end of the fixed term. Croydon appealed.

Court of Appeal

The Court of Appeal dismissed the appeal and agreed with the ruling of the High Court.

The Court of Appeal held that the words “subject to termination by the landlord” did, at first glance, allow a landlord to terminate the tenancy by any lawful means. However, considering the legislative intention behind section 32 of the Housing Act 1980 (the precursor to section 82 of the Housing Act 1985), a fixed term tenancy could only be brought to an end by obtaining an order for termination pursuant to a forfeiture clause, at which point a periodic tenancy would commence. Croydon appealed to the Supreme Court.

Supreme Court

There were two issues for the Supreme Court to consider:

Whether the existence of a provision for forfeiture in the Tenancy Agreement and its exercise by obtaining a termination order in lieu of forfeiture under section 82(3) of the Housing Act 1985 is the sole way in which a secure fixed term tenancy can be brought to a premature end; and
Whether the Tenancy Agreement contained a provision for forfeiture, under which Ms Kalonga could terminate the least because of some fault on the part of Croydon.

In consideration of the first issue, it was held that there are only two ways a landlord can recover possession during the fixed term. The first way is where a tenancy agreement contains a break clause; the second where a tenancy agreement contains a forfeiture clause. In short, a landlord is able to seek possession against a tenant with a secure fixed term tenancy where there is an exercisable break or forfeiture clause.

In consideration of the second issue, whether a particular clause amounted to a forfeiture clause was a matter of substance, not form. The Tenancy Agreement allowed Croydon to seek an order for possession from the Court “at any time” if Ms Kalonga breached the terms of the Tenancy Agreement. The Supreme Court held that was to be considered a forfeiture clause if you apply the test established in Clays Lane Housing Co-operative Ltd v Patrick [1985] 17 HLR 188, and the lower courts had been wrong to conclude otherwise.

The Supreme Court unanimously concluded that the Tenancy Agreement did contain a forfeiture clause. However, as Croydon had stated that it was not relying on a right of forfeiture, the appeal was allowed in part.

Comment

There is thought to be somewhere in the region of 30,000 fixed term secure tenancies in England, therefore this is a significant case setting out the position in terminating a flexible tenancy.

Whilst the outcome only applies to flexible tenancies granted by local authorities, it is important to note that private registered fixed term tenancy agreements do need to contain a provision to determine the tenancy by way of provision for re-entry to ensure compliance with section 7(6)(b) of Housing Act 1988.

 

Case Comment: R (on the application of Z) v Hackney LBC [2020] UKSC 40

In this post, Mathew Purchase QC of Matrix Chambers shares his views on the Supreme Court’s decision in R (on the application of Z) v Hackney LBC [2020] UKSC 40. The Supreme Court unanimously dismissed an appeal about the application of anti-discrimination law to charities, where they are established to provide benefits (in this case, social housing) for particular groups which are the subject of their charitable objectives. The relevant anti-discrimination laws are contained in the Equality Act 2010 and Council Directive 2000/43/EC of 29 June 2000 (the “Race Directive”).

 

Introduction

The narrow result of this appeal is that, on the facts, it was proportionate and lawful for a charity to restrict the allocation of its housing stock to Orthodox Jewish families. However, in reaching that conclusion, Lord Sales, giving the leading judgment, made a number of points of wider importance.

 

Background

The Agusas Israel Housing Association (‘AIHA’) is a charity whose objectives include providing housing ‘primarily for the benefit of the Orthodox Jewish Community’. In practice, the demand from the Orthodox Jewish community is so high that, under current market conditions, AIHA will only consider applications from that community. As a result, Hackney London Borough Council will refer families on its waiting list to AIHA only if they are Orthodox Jewish.

The claimant is a mother with four children, two of whom were very young and two of whom had autism spectrum disorders. She needed re-housing into a larger property. AIHA properties became available but they were allocated to members of the Orthodox Jewish community, which she was not. She accordingly had to wait longer than she otherwise would have for a suitable home.

That approach constitutes direct discrimination on the ground of religious belief, contrary to section 29 of the Equality Act 2010 (‘the 2010 Act’) read with section 13. However, section 158 of the 2010 Act permits such discrimination if it is ‘a proportionate means of achieving the aim of… enabling or encouraging persons who share [a] protected characteristic to overcome… a disadvantage [or] meeting… needs that are from the needs of persons who do not share [the protected characteristic]’. Further, section 193 of the 2010 Act permits a charity to provide benefits which would otherwise be discriminatory if they are ‘a proportionate means of achieving a legitimate aim’ (section 193(2)(a)) or are ‘for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic’ (section 193(2)(b)).

The Divisional Court held that it was proportionate to restrict access to the Orthodox Jewish community in order to overcome disadvantages they faced in securing appropriate housing and to meet their particular needs. They had a particular need for large houses because of their large family sizes, living as a community was central to their way of life, they experienced high levels of poverty, and as a group they faced prejudice and discrimination when seeking accommodation in the private sector. Accordingly, AIHA (and by extension) Hackney’s approach was lawful under sections 158 and 193 of the 2010 Act.

The main issues in the appeal were (i) whether the Divisional Court was wrong to hold that those defences were satisfied on the facts and (ii) whether they had to be read down or disapplied in order to comply with EU law or under section 3 of the Human Right Act 1998 (‘the 1998 Act’).

 

Analysis

The Supreme Court upheld the findings of the Divisional Court. Those findings are instructive but have little wider legal importance. However, the claimant developed a number of arguments which did raise issues of wider public importance. In particular, it was argued that:

The section 158 and 193 defences should be interpreted generally in light of EU law. It is impermissible under EU law to engage in ‘positive action’ which would otherwise constitute discrimination unless: it is aimed at achieving equality of opportunity rather than outcome, it is limited to the different treatment of persons who are in an equivalent position apart from their protected characteristic, and it allows for exceptions on individual facts.
The claimant’s treatment was on the ground of race as well as on the ground of religious belief, such that the Race Directive 2000/43/EC applied. Accordingly, EU law applied directly so as to restrict the scope of those defences. (There is a directive preventing discrimination on the ground of religious belief in employment and occupation, but not in the provision of goods and services.)
The claimant’s treatment also fell within Articles 8 and 14 of the European Convention on Human Rights (‘the Convention’) so that it was impermissible to allow positive action without consideration of its proportionality on the facts of the particular case (meaning that section 193(2)(b) of the 2010 Act was too wide and had to be interpreted so as to incorporate such a requirement).
Whatever the claimant’s position, in other cases the Race Directive would be engaged and so the legislation had to be interpreted or disapplied so as to be compatible with it.

In rejecting those arguments, the Supreme Court made some important statements of principle. These included the following.

First, the approach to ‘proportionality’ under section 158 and 193 is the conventional one. It is legitimate to pursue equality of outcome as well as equality of opportunity and it may be proportionate to apply a ‘bright line rule’ which focusses on the position of identifiable groups rather than on the particular circumstances of individuals. The claimant’s reliance on the narrower approach mandated by case law under the Equal Treatment Directive 76/207/EEC was misplaced. That Directive applied to discrimination on grounds of sex in employment and occupation – which is covered by section 159 of the 2010 act – whereas other EU legislation allowed for much wider exceptions for positive action. (Note also that the Equal Treatment Directive has itself been replaced by Directive 2006/54/EC, which contains a wider exception for positive action than its predecessor.) [58-72, 79-82, 85-86]
Secondly, provided the first instance court has applied the correct legal approach, an appellate court should interfere only if its decision was ‘wrong’ in the sense of containing a significant error of principle or an identifiable flaw in reasoning, such as an error of logic or a failure to take account of a material factor. This test is derived from the Civil Procedure Rules, but should also be applied by the Supreme Court. [56, 74]
Thirdly, on the available evidence, the discrimination in the present case was on the ground of religious belief and not on the ground of race. Sometimes, a person’s status as a Jew may be a racial status based on ethnic origin: see, for example, R (E) v Governing Body of JFS [2010] 2 AC 728 (children who were recognised as Jewish as a result of matrilineal descent) and Mandla v Dowell Lee [1983] 2 AC 548 (distinct groups with, as a minimum, a long shared history and cultural tradition of their own). However, the criterion applied by AIHA was based solely on religious observance as an Orthodox Jew. The Supreme Court left open the possibility that, in a different case, evidence could establish that this group was a racial group in the Mandla However, no such evidence had been adduced in the present case, the point not even having been raised at first instance. [89-94]
Fourthly, Parliament’s decision to provide in section 193(2)(b) of the 2010 Act that it was permissible for a charity to take ostensibly discriminatory action ‘for the purpose of preventing or compensating for a disadvantage linked to [a] protected characteristic’ without any additional requirement of proportionality did not breach the Convention. Parliament’s decision to apply a general rule of this nature was itself proportionate in pursuit of the aim of allowing more charitable resources to be directed towards those who need them. [92-110]
Fifthly, the ‘margin of discretion’ to be accorded to Parliament in this context was wide because (a) ‘Parliament… had its attention drawn to the competing interests and for the need for the regime it enacts to strike a balance which is fair and proportionate and has plainly legislated with a view to satisfying that requirement’ and (b) the test of whether the approach is ‘manifestly without reasonable foundation’, which applies to ‘general measures of economic or social strategy’, also applies to decisions concerning the ability of charities to allocate funds to meet a range of needs. [108-109]
Sixthly, section 193(2)(b) of the 2010 Act could not be interpreted under section 3 of the 1998 Act or under the Marleasing principle to include a proportionality test in any event. Parliament had purposely decided not to include a proportionality test in that subsection, in contrast to the general test set out in subsection (a). If a proportionality test were included, it would render subsection (b) otiose as all such cases would fall within section (a) as well. (The Court did not address the disapplication of domestic legislation to comply with EU law but, as the following point explains, this did not arise.) [111-112]
Finally, on the facts, there was no breach of EU law in the claimant’s case. And, although it is possible that, in other cases, the application of section 193(2)(b) might raise issues under the Race Directive: ‘The proper approach to construction is that legislation should be read and given effect in a particular case according to its ordinary meaning, unless the person who is affected by it can show that this would be incompatible with their Convention rights under the HRA or some provision of EU law as applied to their case. Only then do the special interpretive obligations under section 3(1) of the HRA or under the Marleasing principle come into play to authorise the court to search for a conforming interpretation at variance with the ordinary meaning of the legislation. This means that the same legislative provision might be given a different interpretation in different cases, depending on whether Convention rights or EU law are applicable in the case or not’. [113-114]

Case Comment: Bott & Co Solicitors v Ryanair DAC [2022] UKSC 8

In this post, Mark Chapman, Lauren Cousins and Jessica Eaton, all associates at CMS, comment on the decision of the UK Supreme Court in Bott & Co Solicitors v Ryanair DAC [2022] UKSC 8.  On 16 March 2022, the Supreme Court, by majority, allowed the appeal and ruled for Bott & Co Solicitors. The decision concerns the extent of the solicitor’s equitable lien.

Background

The case brought by Bott & Co Solicitors (“Bott”) against Ryanair DAC (“Ryanair”) concerns the extent of the solicitor’s equitable lien, a remedy that has been recognised by the courts for over two hundred years. A helpful history of the lien is set out in the introductory paragraphs of the dissenting judgment of Lord Leggatt and Lady Rose:

“In its traditional form, it entitled a solicitor who assists a client to recover money (or other property) through litigation to recoup the costs of doing so out of the money recovered. Any proceeds of a judgment or settlement will normally be paid to the solicitor’s firm, which can then deduct its costs before accounting to the client for the balance. But if the opposing party pays the money directly to the solicitor’s client despite knowing or being on notice of the solicitor’s interest in the debt, and the client then fails to pay the solicitor’s costs, the court may order the opposing party to pay those costs to the solicitor – in addition to the payment already made to the solicitor’s client.”

For much of the early history of the lien, it was thought that it arose only where there were court (or arbitration) proceedings in existence when the money was recovered. However, following the Supreme Court’s decision in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21 (“Gavin Edmondson Solicitors SC”), it is clear that the lien can now arise even in circumstances where no formal proceedings have been raised.

The present appeal concerned whether Bott were entitled to the lien to recover the costs incurred for claiming compensation for flight delays from Ryanair on behalf of customers.

The facts that gave rise to the present proceedings are simple. Some years ago, Bott developed an online tool, accessible by their website, whereby delayed passengers could enter their flight information to check whether they were eligible for compensation from Ryanair (and other airlines) in terms of EU Regulation 261 (“Regulation 261”). Regulation 261 applies where a passenger is leaving from or arriving in an EU member state with an EU airline and empowers customers to claim compensation where their flight is delayed, except in certain exceptional circumstances. If Bott’s software confirmed eligibility, and the individual confirmed their desire to instruct Bott on a “no win, no fee” basis to pursue the compensation claim, Bott would then send a standard form letter to the airline to ask whether the claim would be admitted or resisted. If the claim was admitted, Bott would instruct the airline to pay the compensation due into its client account whereupon Bott would deduct its fee and pass on the difference to their client/the delayed passenger.

In 2016, perhaps in response to Bott’s software, Ryanair set up its own online compensation portal whereby it began to compensate Bott’s client’s directly, thereby avoiding payment of Bott’s fee. Bott’s evidence before the Court was that they only had a 30% success rate in recovering their small fee (on average about £95) from their clients who had received their compensation direct from Ryanair. Given the sums involved, it wasn’t financially viable for Bott to pursue their clients in court for their unpaid fees. Bott then brought proceedings against Ryanair claiming a lien over the sums payable by Ryanair to Bott’s clients.

Decisions of the lower courts

The first instance decision handed down by Mr Edward Murray, sitting as a judge in the Chancery Division, rejected Bott’s claim to a lien over the compensation paid directly to Bott’s clients by Ryanair. Mr Murray held he was bound by the decision in Meguerditchian v Lightbound [1917] 2 KB 298 and the Court of Appeal decision in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2015] EWCA Civ 1230 that held a lien does not arise where compensation is obtained without the need to issue proceedings. Shortly after Mr Murray’s decision, the Supreme Court decided Gavin Edmondson Solicitors SC and found that it was not necessary for formal proceedings to have been issued for the lien to arise.

On appeal, Bott asked the Court of Appeal to consider whether Mr Murray was wrong to reject Bott’s claim and argued that Gavin Edmondson Solicitors SC now answered the question of lien in its favour.

The Court of Appeal unanimously dismissed Bott’s appeal, Lewison LJ gave the leading judgment, with which Simon and Lindblom LJJ agreed. Lewison LJ held that for the lien to arise Ryanair had to dispute the claim for compensation under Regulation 261 and the act of writing a letter of claim or assisting with an online form was not sufficient for Bott to establish the lien.

Lewison LJ recognised the decision in Gavin Edmondson Solicitors SC, however, he considered that the services being provided by the solicitor “must still be recognisable as litigation services, promoting access to justice”. Lewison LJ considered, by way of reference to the definition of “litigation services” in s 119 of the Courts and Legal Services Act 1990 (meaning any services which it would be reasonable to expect a person who is exercising, or contemplating exercising, a right to conduct litigation in relation to any proceedings, or contemplated proceedings, to provide) and “contentious business” in s 87 of the Solicitors Act 1974 (meaning business done, whether as solicitor or advocate, in or for the purposes of proceedings begun before a court or before an arbitrator. . ., not being business which falls within the definition of non–contentious or common form probate business contained in s 128 of the Senior Courts Act 1981) that for the term “litigation” to apply there had to be a dispute, which could also include arbitration, proceedings under a pre-action protocol, and potentially even in relation to the costs incurred by way of alternative dispute resolution. Therefore, the process undertaken by Bott in claiming for compensation under Regulation 261, being largely administrative and formulaic, did not constitute litigation, and would not allow for an equitable lien until and unless Ryanair disputed the claim for compensation.

Bott appealed to the Supreme Court.

Summary of Supreme Court’s findings

By majority, the Supreme Court allowed Bott’s appeal. The Court held that for the lien to arise, the solicitor must provide services (within the scope of the retainer with its client) in relation to the making of a client’s claim (with or without legal proceedings) which significantly contribute to the successful recovery of a fund by a client.

In reaching their decision, the Court found; (i) there must still be limits on when an equitable lien can be exercised to avoid it arising in non-contentious matters (such as a conveyance); (ii) the Court of Appeal was wrong to ‘fix the boundary’ (i.e. as to when the lien does and does not apply) by reference to statutory definitions; (iii) the key to ‘fixing the boundary’ is to consider the underlying purpose of promoting access to justice and; (iv) the reason for the extension of the solicitor’s lien beyond matters where proceedings have been issued is due to the (relatively recent) development of various forms of ADR – otherwise solicitors would be incentivised to issue claim forms at an early stage to make sure they get paid. That would be contrary to the rationale behind the pre-action protocol and the idea that court proceedings should be a last resort.

Commentary

The test set out above is clearly a wide one and will make it difficult for typical defendants, such as Ryanair, to attempt to cut solicitors out of the process by paying compensation to claimants or potential claimants direct. However, it is important to note that the lien will only apply where the claim has not been admitted by a prospective defendant. In other words, where a prospective defendant has made public their intention to comply with the legal obligation (in this case to compensate delayed customers), then it is unlikely that the lien would be effective as the solicitor would probably find it difficult to prove that any subsequent assistance made a “significant contribution to the successful recovery of a fund by a client”.  

Interestingly, Lord Briggs (who joined the majority), noted that

“the simple test proposed by Lady Arden and Lord Burrows may occasionally involve the recognition of the equitable lien in wider circumstances than is strictly justified by its animating access to justice principle. It may also confer upon solicitors a proprietary security for payment for services with no very sophisticated legal content which other providers of the same services do not enjoy, simply because they are not solicitors. The facts of this case illustrate both those concerns. Bott went on providing their flight delay service to Ryanair’s passengers long after Ryanair introduced its own apparently equally simple way of obtaining prompt payment of compensation in full. Other claims-handlers entered the market for low-cost claims services with products similar to Bott’s scheme who, because they were not solicitors, lacked the protection of the lien.”

Ultimately, however, Lord Briggs acknowledged that while there might be room to extend the lien to other legal service providers, that was a development best left to Parliament. It will be interesting to see whether this lien is extended to non-solicitor service providers by legislation in due course.

Case Preview: Harpur Trust v Brazel

In this post, Hattie Ryland, an Associate at CMS, previews the decision awaited from the UK Supreme Court in the matter of Harpur Trust v Brazel. 

On 9 November 2021, the Supreme Court heard the appeal in Harpur Trust v Brazel. The forthcoming decision is expected to provide some much-needed clarity on how employers should approach calculating annual leave entitlement and pay for workers who work irregular hours, including those workers on zero hours contracts.

Factual background

The respondent, Ms Brazel, is a clarinet and saxophone teacher. She is employed by the appellant (the “Trust”), which runs Bedford Girls School, as a “visiting music teacher”. She is employed by the Trust on a zero-hours contract, meaning that she does not have a set number of working hours; the hours she works in a given school term depend on the number of pupils requiring tuition in her instruments. She is paid monthly on the basis of an agreed hourly rate applied to the hours worked in the previous month.

As a worker within the meaning of the Working Time Regulations 1998 (“WTR”), Ms Brazel is entitled to 5.6 weeks’ paid annual leave. Since the school holidays are longer than that, the Trust did not designate any particular parts of them as statutory leave. Instead, it made three payments in lieu of holiday in respect of each term, in December, April and August.

In 2011, the Trust altered the manner in which it calculated those holiday payments. It purported to follow a method recommended in then available ACAS and Government guidance for calculating the holiday entitlement of casual workers. The guidance suggested that for workers with casual or irregular hours, holiday entitlement could be calculated as 12.07% of hours worked. This was on the basis that 5.6 weeks is equivalent to 12.07% of hours worked over a year (5.6 weeks’ holiday, divided by 46.4 weeks (being 52 weeks – 5.6 weeks) multiplied by 100 = 12.07%) (the “12.07% Method”). The employer will then pay the normal hourly rate for that holiday, as and when it is taken.

The Trust adopted the 12.07% Method, which had the effect of Ms Brazel receiving a smaller sum in respect of her holiday pay than she had previously been receiving from the Trust. She brought proceedings for unlawful deductions from her wages by underpayment of her entitlement to holiday pay.

The legal issue explained

The issue in this case before the Supreme Court is whether the 12.07% Method is compliant with the 5.6 weeks’ paid holiday entitlement under the WTR.

Under the WTR annual leave entitlement is based on a proportion of the number of weeks in the holiday year that the individual has been engaged under their contract. Where the worker has been engaged under a contract for the full 52 weeks, their entitlement will be to 5.6 weeks’ annual leave. This is the case regardless of how many (if any) hours are worked in a particular week; all that matters is that the contract between the employer and the worker remains in place. The worker is then entitled to their “normal pay” for that holiday. For workers with no fixed hours, this will be calculated on the basis of their average pay over the previous 52 paid weeks before the date they take their holiday (Employment Rights Act 1996, s 224) (“ERA”) (at the relevant time, the reference period was the previous 12 paid weeks). Weeks in which no remuneration is earned are ignored, and earlier weeks are brought into the calculation to make up the requisite 52 weeks, up to a maximum of 104 weeks before the calculation date.

The result is that the longer the period of the year that the worker is engaged but undertakes no work (and receives no pay), the bigger the disparity between the 12.07% Method and the approach under the WTR. As an extreme example (which was put forward by counsel for the Trust in the proceedings), the apparent result of the WTR is that a worker engaged on a permanent contract, but who works only one week of the year, for which they earned £1,000, would then be entitled to 5.6 weeks (notional) annual leave, for which they would receive £5,600. Under the 12.07% Method, they would receive £120.70.

Appellate history

Ms Brazel brought proceedings in 2015 before the Employment Tribunal for unlawful deductions from her wages by underpayment of her entitlement to holiday pay. The Employment Tribunal decided against her on this issue, holding that the application of the 12.07% Method to either the length of the holiday entitlement or to what it described as Ms Brazel’s: “average pay over the course of the working year of 46.6 weeks” would give her proportionately the same holiday entitlement as a full-year worker.

Ms Brazel then appealed to the Employment Appeal Tribunal (“EAT”), where she was successful. The EAT held that there was no reason to depart from the plain statutory language; the intention of the WTR is that all workers are entitled to 5.6 weeks’ paid holiday and there was no basis for pro-rating that entitlement (irrespective of whether or not this favoured part-year workers over full-time workers).

The Trust brought the issue before the Court of Appeal in 2019.

Key Court of Appeal submissions

The Trust’s fundamental submission was that pro-rating of Ms Brazel’s holiday / holiday pay entitlement to her salary, using the 12.07% Method, was necessary in order to avoid unjust results that cannot have been intended; the holiday pay to which, on her case, she was entitled would be a much higher proportion of her actual earnings than if she worked full-time. On the basis of a 32-week working year it would be 17.5%, while the holiday pay of a full-year worker would only be 12.07% of their earnings. Even greater anomalies would be apparent for employees on permanent contracts who worked for even smaller proportions of the year, as noted above. The WTR right to paid annual leave (or at least the right to four weeks’ paid leave) is derived from the European Working Time Directive (“WTD”). The Trust submitted that relevant Court of Justice for the European Union authorities, in particular Greenfield v The Care Bureau Ltd (C-219/14), established that, as a matter of EU law, entitlement to annual leave accrued in step with the relevant units of work, so that if an employee performed less than a full year’s work, they should get less than a full year’s holiday entitlement / pay.

Ms Brazel’s position was that the Trust’s method of calculating her holiday / holiday pay bore no relation to the calculation required by the WTR and produced a lower figure than that required by law under the WTR. It was common ground that she had no normal working hours within the meaning of the ERA, and, accordingly, section 224 applied in determining the amount of “a week’s pay”. She argued that, by virtue of regulation 16(1) WTR, which incorporated s 224 ERA, the correct approach was to calculate a week’s pay by taking her average weekly remuneration for the 12 weeks prior to the calculation date in which she received pay (the process laid out in s 224 ERA as it stood at that time), and then, by virtue of regulation 13 and regulation 13A WTR, to multiply it by 5.6.

Decision of the Court of Appeal

The Court of Appeal dismissed the appeal and held that, despite Ms Brazel not working the full year, she was still entitled to 5.6 weeks’ holiday and her holiday pay should not be limited to 12.07% of her salary.

The Court of Appeal noted that the WTD does not prescribe any particular mechanism for the assessment of holiday pay entitlement, and article 15 expressly provides that member states may accord workers entitlements which are more favourable than those required by the WTD itself. Therefore, even if the WTR provides for a different model for assessing entitlement to annual leave that results in favourable treatment of part-year workers, this is not in itself an issue, so long as it accords workers the minimum rights required by the WTD.

Addressing the potentially extreme results put forward by the Trust’s counsel, the Court of Appeal accepted these, but noted that general rules sometimes produce such anomalies when applied in untypical cases. It also noted that it would be unusual for a worker who worked so little proportion of the year to be on a permanent contract, as opposed to being engaged on a freelance basis. The Court of Appeal noted that, because Ms Brazel was engaged on a permanent contract, it did not seem unreasonable to treat that as a sufficient basis for fixing the quantum of holiday entitlement (at 5.6 weeks where the contract is in place for the full year), irrespective of the number of hours, days or weeks that the worker may in fact have to perform under the contract.

Significance

The Supreme Court’s judgment is eagerly anticipated, because we hope it will provide much need clarity for employers who engage workers on irregular hours.

If the Court of Appeal’s decision is overturned, it will legitimise the practice of calculating holiday entitlement as 12.07% of pay for irregular workers. However, if the Court of Appeal’s decision is upheld, it will confirm the anomaly that those who work only part of the year might end up receiving more pay for their holiday than those who work full time. Moreover, given the prevalence of the 12.07% Method currently, employers will have to evaluate their practices when it comes to calculating holiday pay and change them (if they have not already done so); and may face claims from affected workers in respect of underpaid holiday pay. It may also lead employers to reconsider the use of permanent contracts for casual workers, instead engaging such workers on short-term contracts as and when required.

Case Comment: In The Matter of T (A Child) [2021] UKSC 35

In this post, Matthew Purchase QC of Matrix Chambers discusses the Supreme Court’s decision in the matter of T (A Child) [2021] UKSC 35. The Court was asked to consider two things: first, whether it was a permissible exercise of the High Court’s inherent jurisdiction to make an order authorising a local authority to deprive a child of his or her liberty in this category of case, and secondly if, contrary to T’s argument the High Court can have recourse to its inherent jurisdiction to make an order of the type in question, what the relevance is of the child’s consent to the proposed living arrangements.

The Supreme Court unanimously dismissed the appeal against the decision in [2018] EWCA Civ 2136

 

Introduction

In this case, the Supreme Court was able to supply a legal justification for avoiding express limitations in a clear statutory scheme which, because of a shameful inadequacy of provision, was unfit to protect vulnerable children. It was able to interpret the language of the relevant statutory provisions so as to permit the High Court’s inherent jurisdiction to step in, and it had the support of the Government in so doing. However, despite the focussed analysis and particular facts, these judgments might prove relevant to any future challenge to attempts to curtail the Court’s inherent or common law powers.

 

Background

The High Court has long had an inherent jurisdiction, often but not necessarily invoked through ‘wardship’ proceedings, to provide protection for children whose welfare requires it.

However, by the Children Act 1989 above all, Parliament introduced a comprehensive statutory scheme which set out and limited the powers of the Court and of local authorities to protect (or, depending on your point of view, to interfere in the lives of) children. Similar legislation now exists separately in Wales, mainly in the form of the Social Services and Well-being (Wales) Act 2014.

That legislation confers on a local authority the power a child in its care in ‘secure accommodation’ (that is, accommodation for the purpose of restricting liberty): see, in England, section 25 of the 1989 Act. However, it also sets clear limits on that power. One such limit is set by gateway criteria which prevent the use of secure accommodation unless it is necessary to prevent significant harm to the child or others. However, another limit is set by regulations, namely that accommodation in a children’s home may not be used as secure accommodation unless it has been approved by the Secretary of State for that use. The Supreme Court accepted that ‘secure accommodation’ in this context would generally be the sort of accommodation which would be regulated as a children’s home. Moreover, under the Care Standards Act 2000 in England and the Regulation and Inspection of Social Care (Wales) Act 2016, children’s homes must be registered in any event, and it is a criminal offence to carry on such a home if it is not registered.

There was no dispute in T’s case that she needed secure accommodation. The problem was that there was no suitable place available in any of the approved registered children’s homes. The only suitable place was in a registered children’s home which had not been approved for use by the Secretary of State. This sort of scenario is so regrettably common in the family justice system that Lord Stephens described it as ‘the enduring well-known scandal of the disgraceful and utterly shaming lack of proper provision for children who require approved secure accommodation’. The Secretary of State sought to suggest that the problem arose in ‘exceptional’ cases where existing provision broke down or could not meet the needs of the child, calling for ‘bespoke’ solo placements. Whether that is true or not, there is no doubt that this has become a systemic problem.

At any rate, this meant that T could not be accommodated consistently with section 25 of the 1989 Act or its equivalent in Wales. Thus, the local authority applied to the High Court for authority, in the exercise of its inherent jurisdiction, to accommodate her nonetheless.

T argued that any such power could not exist consistently with the statutory scheme. It was not just that section 25 of the 1989 Act was clearly intended to cover all of the circumstances in which looked-after children could be placed in secure accommodation. In addition, section 100(2)(d) of the 1989 Act specifically prohibited the use of the inherent jurisdiction ‘for the purpose of conferring on any local authority power to determine any question which has arisen… in connection with any aspect of parental responsibility for a child’.

The local authority and others argued that the inherent jurisdiction could still be used. The Secretary of State agreed, at least in the sort of ‘exceptional’ situation set out by him.

The Supreme Court, in a magisterial leading judgment given by Lady Black and in consenting judgments given by Lord Stephens and Lady Arden, accepted that the inherent jurisdiction continued to allow the High Court to sanction placements in unapproved

 

Discussion

On one analysis, it looks like the statutory regime developed in and under section 25 of the 1989 Act, and its equivalent in Wales, was intended to be comprehensive. That regime sets clear limits on the power to place children in secure accommodation and, as a matter of principle, those limits are plainly sensible. What I have called the gateway criteria ensure that children are placed in such accommodation only when there is a real need for it. The further requirement for such accommodation to be registered and specifically approved by the Secretary of State (at least if it constitutes a children’s home) serves the obvious aim of ensuring that it is suitable and meets regulatory standards. It is not easy to envisage that Parliament intended that the residual powers of the High Court could be used, in effect, to circumvent these restrictions. Indeed, nobody suggested that the inherent jurisdiction could operate if the gateway criteria were not met.

There is plenty of authority to support the argument that the courts should not exercise their common law powers in a way which would cut across such a regime. To take one random example, see Johnson v Unisys [2013] 1 AC 518, in which the House of Lords held that it was not permissible to bring a common law claim for breach of contract which would sidestep the restrictions on the statutory unfair dismissal regime. The point might be said to be rammed home in the present context because, insofar as the statutory scheme prevents accommodation at a children’s home which is not registered, it is a criminal offence to run such a home.

However, a number of features placed In re T in a different category.

The first was what was at stake. If neither the Court nor the local authority had the power to accommodate children like T in secure accommodation, their own lives and wellbeing – and that of others – would be placed at unacceptable risk. As Lady Black said: ‘courts should be slow to hold that an inherent power has been abrogated or restricted by Parliament, and should only do so where it is clear that Parliament so intended. I would endorse that as being of particular importance where the inherent power exists for the protection of children’. One might add to that point that, although the regime governing the registration of children’s homes was statutory, the requirement for such a home to be authorised by the Secretary of State before providing secure accommodation was to be found in secondary legislation. However, the Supreme Court clearly held that, in appropriate cases, the High Court could authorise secure accommodation in children’s homes which were not even registered, contrary to primary legislation.

The second was that the legislative regime, though it ought to have been capable of meeting the needs of children, was not working in practice because of the failures of the Government. The deployment of the inherent jurisdiction was not, in that sense, a direct challenge to the legislative restrictions but a means of compensating for the State’s own failure to enable them to operate as Parliament must have intended they should.

The third was that Parliament had, in section 100 of the same 1989 Act, (i) expressly ousted the use of the inherent jurisdiction but only in specified circumstances and (ii) authorised the Court to allow a local authority to make an application under the inherent jurisdiction if certain conditions were met. It was possible – indeed, arguably, entirely orthodox – to interpret the ouster as not extending to this sort of case. The Supreme Court’s analysis of section 100(2)(d) is perhaps slightly elliptical, focussing more on the broad legislative intent. However, the basic thrust appears to be that, although the High Court’s authorisation to the local authority to place T in secure accommodation might have conferred on them a power which, by virtue of section 25, they would not otherwise have had, it was not conferring on them a power to determine the question: the determination of whether T could be placed in secure accommodation was made by the Court. Further, the reserved power to grant leave to apply clearly did extend to this sort of case: the result sought by the local authority could not have been achieved by any other order the local authority could have sought, and there was reasonable cause to believe that, if the Court did not exercise the inherent jurisdiction, the child was likely to suffer significant harm.

That being so, it is arguable that the Supreme Court could have reached the conclusion it reached simply on a perfectly orthodox and literal interpretation of the express language of section 100. If section 100 of the 1989 Act expressly allows the use of the inherent jurisdiction in this sort of case, it is a relatively easy step to the conclusion that a legislative regime set up under the same Act could not sensibly be taken impliedly to have prohibited the use of that inherent jurisdiction.

It may be that the Court considered this too fragile a basis on which alone to rest its decision: its interpretation of section 100 needed the added heft of a wider consideration of the context and the broad legislative intent. At any rate, the judgments are valuable for their wider and authoritative exploration not only of the legal framework for protecting children in the position of T but also of the reluctance of the Courts to accept that their inherent powers have been restricted or ousted by legislation other than in the clearest of cases where vital interests are at stake.

This Week in the UKSC – w/c 28th March 2022  

On Tuesday 29th March the Supreme Court will hear the case of The Soldiers, Sailors, Airmen and Families Association – Forces Help and another (Respondents) v Allgemeines Krankenhaus Viersen GmbH (Appellant) on appeal from [2020] EWCA Civ 926. The court will consider the main issue of whether the Civil Liability (Contribution) Act 1978 has extra-territorial effect, and if it does, whether this would allow a contribution claim to be brought under the 1978 Act despite the contribution claim being governed by German law rather than English law.

The following Supreme Court judgments remain outstanding: (As of 28/3/22)

The Law Debenture Trust Corporation plc v Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) Nos. 2 and 3, heard 9-12 December 2019
BTI 2014 LLC v Sequana SA and Ors, heard 4 May 2021
East of England Ambulance Service NHS Trust v Flowers and Ors, heard 22 June 2021
Basfar v Wong, heard 13th-14th October
Secretary of State for the Home Department v SC (Jamaica), heard 19th October
Commissioners for Her Majesty’s Revenue and Customs v Coal Staff Superannuation Scheme Trustees Ltd, heard 26th October
Harpur Trust v Brazel, heard 9th November 2021
Guest and another v Guest heard 3rd December 2021
Fearn and others v Board of Trustees of the Tate Gallery heard 7th December 2021
Stanford International Bank Ltd (in liquidation) v HSBC Bank PLC, heard 19th January 2022
R v Maughan, heard 27th January 2022
Cornerstone Telecommunications Infrastructure Ltd v Compton Beauchamp Estates Ltd, Cornerstone Telecommunications Infrastructure Ltd v Ashloch Ltd and another and On Tower UK Ltd (formerly known as Arqiva Services Ltd) v AP Wireless II (UK) Ltd, heard 1st February 2022
DCM (Optical Holdings) Ltd v Commissioners for Her Majesty’s Revenue and Customs (Scotland), heard 8th February 2022
R (on the application of Coughlan) v Minister for the Cabinet Office, heard 15th February 2022
Competition and Markets Authority v Pfizer Inc and Flynn Pharma Ltd, heard 22nd February 2022
In the matter H-W (Children) and H-W (Children) No 2, heard 22nd March 2022
The Soldiers, Sailors, Airmen and Families Association – Forces Help and another (Respondents) v Allgemeines Krankenhaus Viersen GmbH (Appellant) heard 29th March 2022.

Case Comment: Commissioners for Her Majesty’s Revenue and Customs v NCL Investments Ltd and another [2022] UKSC 9

In this post, Andre Anthony, a senior associate in the Tax team at CMS, comments on the decision of the UK Supreme Court in Commissioners for Her Majesty’s Revenue and Customs v NCL Investments Ltd and another [2022] UKSC 9. The Supreme Court was asked to consider whether accounting debits relating to the grant of share options to employees are a deductible expense for corporation tax purposes.

On 23 March 2022, the Supreme Court unanimously dismissed HMRC’s appeal against the decision of the Court of Appeal in Commissioners for Her Majesty’s Revenue and Customs v NCL Investments Ltd and another 2020 EWCA Civ 663.

Background

The appeal turns on whether accounting debits relating to the grant of share options to employees are a deductible expense for corporation tax purposes.

The taxpayers were wholly owned subsidiaries of a holding company, Smith & Williamson Holdings Ltd (“SWHL”). The taxpayers employed staff whom they made available to other companies within the corporate group for a fee.

In 2003, SWHL settled an employee benefit trust which gave employees a contractual right to acquire shares in SWHL for a specified price. When options were granted to employees of one of the taxpayers, it would recognise an indebtedness to SWHL equal to the fair value of the options, which was settled monthly (“the Recharge”). The taxpayers passed the cost of the Recharge to the group companies using the services of their employees as part of the charge made to those companies.

The grant of the options was governed by the accounting standard International Financial Reporting Standard 2 (“IFRS 2”). Pursuant to IFRS 2, on the grant of a share option to an employee, the relevant taxpayer was required to recognise a debit in its income statement equal to the fair value of the options, regardless of whether the taxpayer had to pay any amount to the holding company or the trustee of the employee benefit trust in relation to the grant of those options, and recognise a capital contribution received from the holding company as a credit on its balance sheet.

The taxpayers claimed the debits as deductions in the computation of the profits of their trade for the purposes of corporation tax. HMRC refused the corporation tax deduction and issued “closure notices” disallowing the deductions.

Decisions of the lower courts

At first instance, the taxpayers successfully appealed to the First-tier Tribunal against the closure notices. The First-tier Tribunal held that the taxpayers were entitled to claim deductions for corporation tax purposes as expenses against trading profits for ten accounting debits relating to the grant of share options to the taxpayers’ employees that were recognised in their respective income statements pursuant to IFRS 2. HMRC appealed to the Upper Tribunal.

The Upper Tribunal dismissed HMRC’s appeal on the following four grounds. First, the IFRS 2 debits were expenses incurred wholly and exclusively for the purposes of each taxpayer’s trade. Second, the Corporation Tax Act 2009 (the “Act”), s 54(1)(a) did not impose an additional requirement on what was an “expense” under the Act, ss 46 and 48. Third, the IFRS 2 debits were correctly categorised as revenue rather than capital items. Fourth, the Act s 1290 did not bar a corporation tax deduction whenever a company makes an outright payment to employees that are not subject to tax in the employee’s hands.

HMRC’s appealed against the decision of the Upper Tribunal to the Court of Appeal on the overall basis that the options could not be taken into account in the calculation of the taxpayers’ profits because there was no matching outflow of cash from the taxpayers.

In a unanimous decision, the Court of Appeal dismissed HMRC’s appeal, on two main grounds.

First, the Court of Appeal held that the combined effect of the Act, ss 46 and 48, was to define allowable expenses as those debits made in accordance with generally accepted accounting practice (“GAAP”) in calculating the profits of a trade. Those provisions did not require any further examination of whether such accounting debits were “expenses”. The use of “incurred” in the Act s 54(1)(a) did not impose any additional requirement.

The Court of Appeal agreed with the First-tier Tribunal that the debits in this case were required by IFRS 2 to reflect the consumption by the taxpayers of the services provided by the employees, who were in part remunerated by the grant of the options. The taxpayers consumed those services wholly and exclusively for the purposes of their trades.

Second, the Court of Appeal held that the Act, s 1290 did not apply to deny or defer allowance of the relevant debits in this case on the basis that the deductions claimed by the taxpayers were not deductions in respect of an “employee benefit contribution”. The benefit received by an employee was the option. It was the option that entitled the employee to acquire shares at a price that might be less than their market value. The acquisition of shares on exercise of the option was not the benefit received by the employee, but the fulfilment of an existing contractual entitlement.

The Supreme Court decision

In a unanimous decision, the Supreme Court dismissed HMRC’s appeal, on the same grounds as the courts below. The judgment was given by Lord Hamblen and Lady Rose, with whom Lord Reed, Lord Briggs and Lord Sales agreed.

The Supreme Court considered four issues, as follows:

first, whether disregarding the debits is an “adjustment required or authorised by law” within the meaning of the Act, s 46(1);
second, whether the deduction is disallowed by the Act, s 54(1)(a);
third, whether the deduction is disallowed by the Act, s 53, which provides that no deduction is allowed for “items of a capital nature”; and
fourth, whether the deduction is disallowed (or deferred) by the Act, s 1290.

On the first issue, the Supreme Court opined that there is no general theoretical basis to calculate profits other than in accordance with GAAP. Here the debits had been brought into account in calculating the profits in accordance with GAAP. As such, under the Act, s 48, they are treated as expenses for the purpose of the calculation of trading profits, whether or not an amount had actually been paid, subject to an “express provision to the contrary”. No such contrary provision had been identified by HMRC.

The Court held that there is no adjustment required or authorised by law to the effect that if profits in the profit and loss account are depressed because of an entry which is matching an entry in the balance sheet, then that is to be left out of account in calculating profits for corporation tax. Nor did the Court see any policy justification for drawing that distinction.

On the second issue, the Court held that the deduction is not disallowed by the Act, s 54(1)(a). It rejected HMRC’s contention that the Act, s 54 imports a further requirement as to what constitutes an “expense”, namely that it has to be shown to be “incurred”.

On the third issue, the Court agreed with the First-tier Tribunal that the debits were revenue in nature, not capital. The fact that the matching credit entry was a capital contribution does not change that. What matters is the character of the debits, not that of any corresponding credit. On this basis, the Court held that the deduction is not disallowed by the Act, s 53(1).

On the final issue, the Court held that the Act, s 1290 did not apply here because the grant of the option was not an “employee benefit contribution” within the meaning of the Act, s 1291, adopting the same reasoning as the lower courts on this issue.

Comment

This case considers the interaction between tax law and GAAP. It is rare for such a case to reach the Supreme Court.

While the Court of Appeal acknowledged that the “accounting treatment by the taxpayers of the grant of the options is central to the issues” and remarked that on these facts, IFRS 2 produced a “counter-intuitive” and “surprising” result by “requiring a debit to profit and loss account even though there is no outflow of funds but prohibiting a debit that does recognise an outflow of funds” (in respect of the Recharge), the Supreme Court did not express a view on this.

The facts of this case would have allowed the Supreme Court to explore more broadly the relationship between the principles of tax law and the current accounting standards. However, the Court did not further explore this theme, preferring instead to focus on the specific facts and issues relevant to the appeal.

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