Civil Procedure, application for recall, “very special reason” threshold   

Monnery v Convendium Ltd (in liquidation) [2026] NZCA 321 (20 July 2026)  

Unsuccessful application to recall 2020 CA judgment dismissing appeal from summary judgment entered against trustees for overdrawn shareholder current account – Trustees (M and co-trustee) sought recall on basis of newly disclosed emails allegedly showing an agreed arrangement M's drawings were remuneration for services said to be "fair" under remuneration provision concerning company officers under s 161 Companies Act 1993 – Liquidators said evidence had not established a s 161 compliant arrangement –    

Not necessary to consider the effect of the emails or whether they were truly “fresh” because even if the email and affidavit evidence established the alleged remuneration arrangement, it would not be sufficient to disturb the CA’s reasoning on appeal – Original judgment proceeded on basis shareholder current account advances were a debt owed by trustees, as shareholder, to company, repayable on demand, irrespective of any separate remuneration arrangement between M and other shareholders – Section 161 was distraction in original appeal since claim was against trustees as shareholder, not against M personally, so evidence of a fair remuneration arrangement between M and shareholders could not relieve the trustees of their repayment liability – Application fell short of high threshold for recall – Application declined.   

New Zealand High Court

Bill of Rights, freedom of expression, gang insignia, declaration of inconsistency, judicial discretion, International Covenant on Civil and Political Rights

B v Attorney-General [2024] NZHC 2179 (30 July 2026) 

B, a patched member of a specified gang, sought a declaration that s 7 Gangs Act 2024, which makes it an offence to knowingly display gang insignia in a public place, was inconsistent with the right to freedom of expression affirmed by s 14 New Zealand Bill of Rights Act 1990 (NZBORA) and art 19(2) International Covenant on Civil and Political Rights (ICCPR) – Attorney-General (A-G) accepted that s 7 limited freedom of expression and that the limit was not justified under s 5 NZBORA, but submitted that the Court should decline to make a declaration as a matter of discretion – Application was solely concerned with the declarations sought by B and had no effect on conviction -

During the Act’s passage through Parliament, the A-G‘s s 7 NZBORA report presented for discussion acknowledged s 7 Gangs Act limited the right to freedom of expression but the A-G did not seek to justify that limitation – Public display of gang insignia is expressive conduct protected by s 14 NZBORA - In Attorney-General v Chisnall it was noted that that a declaration of inconsistency is only appropriate where the court has concluded that the legislation cannot be interpreted in a rights-consistent manner – Court examined the Act’s objectives and considered they must be sufficiently important to justify the limitation – Court found there was no plausible rights – Consistent interpretation of the provision, and the broad prohibition on displaying any gang insignia in any public place at any time was not a proportionate or justified limit on the right – 

A declaration of inconsistency was therefore appropriate – Court rejected the A-G’s submission that a declaration should be declined because Parliament had enacted the legislation recently and had already been alerted to the inconsistency through the s 7 report – The s 7 report and a declaration of inconsistency serve different constitutional purposes – Statutory response process, following a declaration promotes dialogue between the courts, the executive, and Parliament, did not weigh against granting relief – Court also declined to act strategically by anticipating Parliament’s likely response – Court made a declaration that s 7 Gangs Act 2024 was inconsistent with the right to freedom of expression in s 14 NZBORA and that the inconsistency was not justified under s 5 – Court declined to make a separate declaration under art 19(2) ICCPR because NZ’s international treaty obligations are enforceable domestically through incorporation into NZ law, including NZBORA – Declaration did not invalidate s 7, affect B’s conviction, or determine Parliament’s response. 

United Kingdom Supreme Court

Foreign judgment, unrecognised and unregistrable foreign judgment, debt, common law obligation   

Valeriy Ernestovich Drelle v Servis-Terminal LLC (in liquidation in the Russian Federation) [2026] UKSC 29 (27 July 2026)  

Appeal from CA on whether an unrecognised and unregistrable foreign judgment for a debt or definite sum of money can constitute a “debt” for the purposes of a creditor’s bankruptcy petition under s 266 Insolvency Act 1986 –   

SC concluded that an unrecognised and unregistrable foreign judgment for a debt or definite sum, given by a court of competent jurisdiction and otherwise final and conclusive, immediately gives rise to a common law obligation to pay – This “obligation principle” is the jurisdictional basis upon which a foreign judgment creditor may bring an action in England and Wales based on that foreign judgment – SC also found the “obligation principle” meant the amount owed was a debt within the meaning of s 267 – SC rejected reliance on Dicey, Morris & Collins The Conflict of Laws, Rule 45 (which states that a foreign judgment has no status as a judgment in England), saying the foreign judgment could operate indirectly in England, and an unrecognised foreign judgment could operate as a “sword” and not just a “shield” or defence –   

Assessing the impact of art 13 UNCITRAL Model Law which references “foreign creditors”, the judges rejected this as not being relevant to the case saying it was concerned with the geographical location of the foreign creditor, not the law under which they are owed a debt –    

Judges unanimously concluded the grounds of appeal which sought to challenge the ICC judge’s conclusions as to whether the debt was disputed on were bona fide and substantial grounds to be remitted to the CA.  

Criminal law, domestic violence, causing or allowing serious physical harm to a vulnerable adult, household liability, foreseeability, construction of “circumstances of the kind”   

R v Sheikh [2026] UKSC 28 (27 July 2026)   

Respondents were convicted for causing or allowing A, a vulnerable adult, to suffer serious physical harm contrary to s 5 Domestic Violence, Crime and Victims Act 2004 –   

A lived in the respondents’ household following an arranged marriage - Husband, his parents, brother and sister were in the home – A suffered a severe brain injury, most likely caused by ingestion of glimepiride, leaving her in a vegetative state with a reduced life expectancy requiring constant attention – Glimepiride is an anti-diabetic medication that can cause a non-diabetic person to enter a coma which was prescribed to her mother-in-law who suffered from diabetes – A was not diabetic – Medical staff also found a severe sacral lesion which prosecution alleged had been deliberately inflicted earlier by the application of a caustic substance - Lesion would have been very painful and other members of the household would have been aware of this condition - Prosecution could not prove which household member had caused either injury but alleged that each respondent had caused or allowed the serious harm  and respondents were convicted –   

CA quashed the respondents’ convictions and held the respondents’ submission of no case to answer on counts of causing or allowing the serious physical harm of a vulnerable adult should have succeeded –  

Appeal to the SC on whether CA had erred in its interpretation and application of s 5(1)(d)(iii) - Respondents had contended the “unlawful act” relied on by the prosecution as having caused serious physical harm to the victim was, if proved, not one which “occurred in circumstances of the kind” that the respondents had foreseen or ought to have foreseen –  

SC held CA had adopted too narrow an interpretation of “circumstances of the kind” in s 5(1)(d)(iii) – Statutory focus is on the circumstances in which the unlawful act occurred, not on whether the defendant foresaw the precise act or mechanism by which serious harm was inflicted – Section 5(1)(d)(iii) gives defendants additional protection beyond awareness of a risk of serious physical harm and the failure to take reasonable protective steps – However, because offences against children and vulnerable adults often occur in private, the provision should not be read as requiring exact correspondence between circumstances giving rise to the foreseen risk and circumstances of the unlawful act that caused the harm – Phrase “circumstances of the kind” has its ordinary meaning and permits a broad, fact-sensitive assessment – The nature or method of the act may be relevant, but a difference in the mechanism of injury is not necessarily decisive –  

CA erred by treating difference between the caustic injury and the later glimepiride-related brain injury as fatal to the prosecution case, and by substituting its own view for that of the jury – It was for the jury, properly directed, to decide whether the unlawful act occurred in circumstances of the kind that the respondents foresaw or ought to have foreseen –  

SC restored the trial judge’s broader approach to s 5(1)(d)(iii) and confirmed that the words “circumstances of the kind” do not require a special judicial definition for the jury – convictions reinstated.  

Intellectual property, standard-essential patents, FRAND licensing, jurisdiction  

Tesla Inc v InterDigital Patent Holdings Inc [2026] UKSC 27 (27 July 2026)  

Successful appeal – InterDigital owned standard-essential patents (SEPs) relating to 5G technology and had undertaken to license them on fair, reasonable and non-discriminatory (FRAND) terms – Tesla sought global licence to use the SEPs through the Avanci 5G Platform, which provided licences covering SEPs owned by multiple patent holders – Issue was whether such a platform licence could satisfy the FRAND obligation and whether English courts had jurisdiction to determine the dispute – InterDigital and Avanci argued dispute concerned worldwide licensing and should be determined in the US –  

HC held English courts had jurisdiction – CA, by majority, upheld that conclusion in part but held Tesla did not have a serious issue to be tried as to whether the FRAND obligation required the SEPs to be licensed through the Avanci platform – Tesla appealed to SC –  

SC unanimously allowed appeal – Held there was a serious issue to be tried as to whether the FRAND obligation continued to apply where SEPs were offered through a global licensing platform – Manufacturer had a legitimate interest in seeking declarations as to the FRAND terms and a real prospect of obtaining them – It was not necessary, as a matter of fairness, for all SEP owners on the platform to be joined or represented before claim could proceed – English courts had jurisdiction because claims related to UK SEPs, notwithstanding that a global licence was sought – Appeal allowed.  

Immigration, civil penalties, validity of penalty notice, statutory interpretation  

Akbars Restaurant (Middlesbrough) Ltd v Secretary of State for the Home Department [2026] UKSC 26 (27 July 2026)  

Successful appeal from CA – A operated a restaurant in Middlesbrough – In 2019, issued with £15,000 civil penalty under s 15 Immigration, Asylum and Nationality Act 2006 for employing a worker who did not have the right to work in the UK – Section 15(1) provided three alternative circumstances in which an employer could be liable for a civil penalty – Penalty notice issued referred to all three circumstances but did not identify which applied – During subsequent proceedings, Secretary of State relied on different grounds at different stages – Validity of penalty notice challenged under s 15(6)(a), which required the notice to “state why” Secretary of State considered employer liable to pay a penalty –   

FTT dismissed appeal – UT allowed appeal, holding penalty notice invalid because it failed to identify ground of liability relied on – CA allowed Secretary of State’s appeal, holding notice sufficiently complied with s 15(6)(a) – Appeal to SC –

SC unanimously allowed appeal – Held s 15(6)(a) required Secretary of State to identify in penalty notice particular ground in s 15(1) relied on – Three grounds were mutually exclusive and differed in their factual requirements – Employer needed to know which ground was alleged to understand the case against it, decide whether to object to penalty and, if necessary, exercise its right of appeal effectively – Requirement to “state why” Secretary of State considered employer liable was not satisfied by simply reproducing the statutory grounds without identifying which applied –  

SC rejected argument that defect in notice could be cured by Secretary of State identifying relevant ground later in proceedings – Purpose of notice was to inform employer of the basis on which penalty had been imposed, and allowing Secretary of State to change or clarify the basis later would undermine that purpose – Requirement was particularly important given penal nature of civil penalty regime and consequences for an employer found liable – Failure to identify the applicable ground therefore rendered penalty notice invalid – Appeal allowed.  

Group litigation orders, discretion to "order otherwise", limitation, Civil Procedure Rules r 19.23(1)(a)    

AXA Insurance UK plc v Commissioners of Inland Revenue [2026] UKSC 24 (27 July 2026)  

Unsuccessful appeal against CA decision upholding HMRC's position on binding effect of test case judgment within group litigation order (GLO) –   

A and G claimants within Controlled Foreign Companies and Dividend GLO alleging that tax had been paid under provisions incompatible with EU law – G relied on decision in test case that it had a common law claim for interest on advance corporation tax paid prematurely (Set-off Issue) – Both claimants relied on test case finding said to fix date on which limitation period began under s 32(1)(c) Limitation Act 1980 (Limitation Issue) – Under CPR r 19.23(1)(a) a judgment or order is binding on all other GLO claims at time of judgment or order “unless the court orders otherwise” – CA held it should exercise discretion under r 19.23(1)(a) to order that test case decision on Set-off Issue did not bind G – CA further found that test case had not determined Limitation Issue as a common GLO issue –   

SC found avoidance of injustice guides exercise of discretion under r 19.23(1)(a), but does not confer wide-ranging power – Some exceptional quality required, including legal basis of test case decision clearly shown to be wrong, before court will consider ordering otherwise – On Set-off Issue, reasoning underpinning test case decision had been definitively rejected in later Supreme Court authority, no further litigation or relitigation of issue would result, and no countervailing unfairness arose – CA correct to find that decision did not bind G – On Limitation Issue, SC found date of discoverability had not been argued or decided in test case so was not binding on A's claim, which fell to be determined by applying current authority –  

Lord Leggatt, concurring, found subsequent change in law will rarely justify ordering otherwise – Purposes served by treating GLO decisions as binding include avoiding wasted relitigation and inconsistent outcomes – In this case, neither purpose undermined by making of order, since issue would not be reargued and alternative would produce irrational distinction between categories of G's own claim –  

Appeal dismissed.  

Supreme Court of Canada

Contract, evidence, spoliation, damages  

SS&C Technologies Canada Corp v Bank of New York Mellon Corp 2026 SCC 29 (31 July 2026)  

Unsuccessful appeal from Ontario CA – Whether BNY’s failure to preserve and produce evidence concerning unauthorised redistribution of proprietary data constituted spoliation and whether damages for breach of contract were properly assessed –  

SS&C supplied specialised pricing data to BNY under licensing agreement prohibiting redistribution to subsidiaries and affiliates – BNY redistributed data to affiliated entities in breach of agreement – After SS&C discovered unauthorised redistribution, it required bank to preserve relevant information – BNY failed to preserve and produce evidence concerning extent of redistribution –  

Trial Judge drew adverse inferences against bank but awarded damages using a “rateable approach” – CA found bank had committed spoliation and upheld damages –

SC dismissed appeal on spoliation but allowed appeal concerning damages – Once spoliation established, mandatory presumption arose that destroyed evidence would have been unfavourable to spoliator – Application of presumption discretionary and fact-specific – Court must ensure party responsible for destruction or non-production did not benefit from resulting evidentiary gap –  

Trial Judge’s adverse inferences did not adequately address prejudice caused by bank’s failure to preserve evidence – Damages need not be mathematically precise where loss difficult to quantify, but must remain connected to evidence and loss suffered – Rateable approach was not sufficiently grounded in evidence and did not adequately account for extent of unauthorised data use – New hearing required to quantify damages based on adverse inferences and factual findings capable of establishing value of data provider’s loss – Appeal allowed in part and damages issue remitted for rehearing.  

Constitutional law, jurisdiction, judicial review, privative clauses

Democracy Watch v Canada (Attorney General) 2026 SCC 28 (30 July 2026)  

Successful appeal to SCC – Conflict of Interest and Ethics Commissioner investigated whether then Prime Minister Trudeau had contravened Conflict of Interest Act by participating in two funding decisions relating to WE Charity – Commissioner concluded Trudeau had not contravened the Act – DW sought judicial review, alleging errors of fact and law –  

FCA dismissed application, holding political oversight of Commissioner provided an adequate alternative remedy – SCC held political oversight was not an adequate alternative to judicial review because it provided no means of directly challenging legality of Commissioner’s conclusions - Commissioner’s conclusions could not be changed by anyone under the Act –  

Constitution guaranteed courts’ supervisory jurisdiction to review legality of exercises of public authority – Constitutional guarantee extended to review of all aspects of an administrative decision, including questions of fact and law – Legality review was essential to rule of law because all exercises of public power were subject to legal limits – Parliament could not oust courts’ constitutionally protected role by enacting a privative clause – Conflict of Interest Act s 66, which purported to bar judicial review of Commissioner’s decisions on questions of fact and law, was of no force and effect to that extent –  

In determining whether an alternative remedy was adequate, courts must consider whether it was suitable and appropriate in the circumstances, rather than simply whether another form of oversight was available – FCA erred in dismissing application on the basis that political oversight was an adequate alternative remedy - SCC did not determine the merits of DW’s judicial review application – Appeal allowed with costs – FCA decision set aside and matter remitted to proceed to Stage 2.