Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • COSTS: Show me the money

    Rick Brown and Victoria Cowan examine recent case law on security for costs post judgment

    Security for costs orders are regularly sought at an early stage of a claim by defendants seeking to protect their ability to recover costs from an unsuccessful claimant, but, until recently, there has been limited case law relating to whether they can be applied for post judgment. This was discussed at length in the recent case of Republic of Djibouti v Boreh [2016].

  • PRACTICE: Malice in wonderland

    In the second of two articles, Ian McDonald and Daniel Cook conclude their consideration of malicious prosecution

    On 20 July 2016, a nine-member panel of the Supreme Court handed down its judgment in Willers v Joyce [2016]. The panel decided by a 5:4 majority that a claim for malicious prosecution of civil proceedings is sustainable in English law. The leading judgment was given by Lord Toulson, with whom Lady Hale, Lord Kerr and Lord Wilson agreed. Lord Clarke delivered a concurring judgment, and dissenting judgments were given by Lords Neuberger, Mance, Sumption and Reed.

  • REGULATION: I want to break free
    Written by

    Martin Cox provides another view of the Freedom of Information Act

    Under the Freedom of Information Act 2000 (FOIA), any individual or organisation anywhere in the world has the right to access any information held by public authorities in the UK, subject to certain specific exemptions.

  • FREEZING ORDERS: The good, the bad and the frozen
    Written by

    Elizabeth Wiggin and Geraldine Elliott weigh up a recent case on freezing orders

    In the recent case of National Bank Trust v Yurov [2016], the High Court considered an application to set aside a freezing order in the sum of US$830m, on the grounds that there were serious breaches of the duty of full and frank disclosure and there was no real risk of dissipation. The judgment offers valuable guidance on the implications of material non-disclosure and will be of interest to both applicants and respondents dealing with an application to set aside a freezing order.

  • TRIAL: Ambridge awareness
    Written by

    Sandra Paul presents a legal guide through the headline trial of the year

    Only those of the most Luddite disposition can have failed to be aware of the current storyline of The Archers involving domestic abuse. In short, mild-mannered Helen Titchener (née Archer) stabbed her controlling and coercive husband Rob. Helen was about to leave Rob, taking her five-year-old son Henry (who was also present during the incident) with her. In a rage, Rob brandished a knife, making it clear to Helen that the only way she would leave was if she killed herself. Turning the table in classic Kobayashi Maru style, Helen caused the injuries which placed Rob on life support and needing a stoma.

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Employment Law Journal

  • EXECUTIVE REMUNERATION: Pressure grows to rein in runaway pay
    Written by

    Stephen Levinson looks at the latest moves by the City to curb boardroom excess ahead of an expected intervention by the government

    Excessive executive pay is a running sore on the reputation of British capitalism. According to the High Pay Centre, the think tank devoted to the subject, the total pay for a chief executive in a FTSE 100 company in the UK now averages £6m a year, or 150 times average worker income. Perhaps the most telling statistic is that this ratio has doubled in ten years as worker pay has stagnated.

  • MATERNITY DISCRIMINATION: Not keeping mum: new mothers face dismissal and disadvantage
    Written by

    Åsa Waring and Dominic Boon consider ways to curb growing discrimination against expectant mothers and women returning from maternity leave

    The Equality and Human Rights Commission (EHRC) and the former Department for Business, Innovation and Skills commissioned a programme of research to investigate the prevalence of pregnancy and maternity discrimination in the workplace in 2015. The researchers might well have expected to find a reduction in discrimination compared to similar 2005 research conducted by the Equal Opportunities Commission. Yet the research in fact found an increase in such discrimination, with the following findings being particularly notable:

  • DISCRIMINATION: Removing employment barriers for Muslim women

    Ambiguous legal protection and subconscious bias by recruiters are making it difficult for Muslim women who wear a headscarf to find work. Arpita Dutt and Rolleen McDonnell investigate

    Muslim women are 71% more likely to be unemployed than white Christians with the same education, according to a recent House of Commons Select Committee report. The report describes the experience of many Muslim women who wear the headscarf, who commented that they were unsuccessful in obtaining roles when they wore it and successful when they took it off.

  • EQUAL PAY: Asda barred from forum shopping
    Written by

    The Court of Appeal has confirmed that a complex class action should be heard in the employment tribunal rather than the High Court, reports Christopher Tutton

    The Court of Appeal decision on 22 June in Asda Stores Ltd v Brierley [2016] highlights some of the difficulties respondents face when defending themselves against equal pay claims.

  • DISABILITY DISCRIMINATION: Lessons from recent case law
    Written by

    After two decades, the law on disability discrimination continues to pose challenges for employers and their advisers, reflects Antonia Blackwell

    Protection against discrimination on the grounds of disability has been in place in the UK for just over 20 years, yet the case law continues to develop, creating difficult practical issues for employers.

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Family Law Journal


    Rita Veitch presents an overview of the basis on which the court may terminate the parental responsibility of an unmarried father

    Although the courts have the power to terminate an unmarried father’s parental responsibility, it is very unusual for them to do so. This is evidenced by the small number of reported cases where such an order has been made.

  • INTERNATIONAL FOCUS: Enforcement down under

    Jason Schroen examines whether a pre-nuptial agreement entered into in England and Wales is enforceable in Australia

    In a modern-day globalised world, international families are becoming increasingly common. International families are more transient and may establish homes in different countries throughout their lifetime. At the time parties enter into a pre-nuptial agreement it can be extremely difficult to foreshadow their future movements, however, in certain circumstances, where one or both of the parties is Australian, or a party owns, or intends to own, property in Australia, the enforceability of a pre-nuptial agreement entered into in this jurisdiction must be considered.

  • INSOLVENCY: Proceed with caution
    Written by

    Rebecca Stone looks at the implications of bankruptcy both prior to and following a financial agreement or order

    The ramifications of the outcome of the EU referendum on the 23 June 2016 for family law remain unknown. However, with concerns that there may be another economic crisis very much on the radar, it is perhaps a good time to review the difficulties that people face if their spouse goes bankrupt either before or after a financial agreement has been reached.

  • RELOCATION: Shall I stay, or should I go?
    Written by

    Lottie Tyler focuses on the potential impact of the Brexit vote on international child relocation

    Speculation regarding the impact on day-to-day life of leaving the EU has scarcely abated since the vote on 23 June. We have seen reports that institutions and companies that have to date based their European headquarters in London may opt to relocate a proportion of their workforces to other European cities. In terms of social ramifications, the media has reported incidents of racism/xenophobia attributed (fairly or not) to the outcome of the vote.

  • CHILDREN: History repeated
    Written by

    Susan Reed asks whether the lessons of the Cleveland inquiry have still not been learned

    Towards the conclusion of his judgment in AS v TH [2016], MacDonald J said (at para 233):

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Personal Injury Law Journal

  • NEGLIGENCE: Causation of loss
    Written by

    Julian Matthews explores a defendant’s liability when there are multiple causes of a given loss

    I have written recently in this journal about the potentially widespread ramifications of the case of Reaney v University Hospital of North Staffordshire [2015] (see ‘Reducing damages due to pre-existing conditions: a tenable argument?’, PILJ133, March 2015, p22 and ‘Material contribution to damage’, PILJ131, December 2014/January 2015, p17).

  • CASE REPORT: Scott v Gavigan [2016] EWCA Civ 544

    Road traffic accident; foreseeability; breach of duty; Highway Code

    Valley Road in Streatham is long and straight, largely residential in character albeit with some commercial premises on it, and it bears a speed limit of 30mph. On a clear evening with good visibility in June 2008 the defendant was travelling home along the road on his 125cc motorcycle. He was travelling at or slightly below 30mph.

  • PROPORTIONALITY: Under Pressure; the new test begins to bite

    James Laughland highlights the case of Dr Brian May & Anita May v Wavell Group Plc & Dr Bizarri

    In Dr Brian May & Anita May v Wavell Group Plc & Dr Bizarri [2016] costs were reduced from £208,000 down to £35,000. Another One Bites The Dust or The Show Must Go On? Failing miserably to resist the urge to include too many Queen song titles (Don’t Stop Me Now), the implications of this decision may well rock you.

  • COSTS: Sharp turns

    Paul Jones discusses the contentious world of CFA assignment

    Assignment of conditional fee agreements (CFAs) continues to be a thorny topic in the costs world. With the changes in the personal injury market post Jackson, more and more cases find themselves transferred between different firms of solicitors and this is often done by way of an assignment of the existing CFA from the old solicitors to the new. Unfortunately, this area is fraught with potential problems and has generated a whole raft of case law and the recent decision in Azim v Tradewise Insurance Services [2016] can now be added to that list.

  • PERIODICAL PAYMENT ORDERS: A lack of security
    Written by

    Nick Leech and Andrew Sands consider ‘the Brexit Effect’ on compensation schemes

    Brexit is taking the blame for much that is negative in the news, often for political purposes. However, the result of the recent referendum may well have thrown into doubt established case-law and the ability of the court to make an order for periodical payments in certain circumstances.

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Procurement and Outsourcing Journal

  • PRICING: The root of all evil
    Written by

    Dr Sam De Silva reviews remuneration for service providers

    There are a number of different pricing models that are used in outsourcing transactions. This is where the use of outside, independent consultants can be helpful because of their familiarity with different pricing models and their knowledge of going rates. While the customer will want to get the best price possible, it is important for the customer to understand that if the long-term relationship is to succeed, the service provider must make a reasonable return upon the investment that it is making in the outsourcing. A service provider that thinks that it is being underpaid will try to find ways to reduce its costs or increase the customer’s fees. The goal is to pay a fee that fairly rewards the service provider but does not overly reward the service provider to the detriment of the customer.

  • PLANNING: Good neighbours
    Written by

    Robert Bruce summarises proposed planning legislation

    The government has recently announced that it will bring forward a new Neighbourhood Planning and Infrastructure Bill in the Queen’s Speech.

  • AGENCY: Not so secret agents
    Written by

    Kayleigh Bloomfield discusses the (ir)revocability of agency agreements and constructive trusts upon insolvency

    Agency is a universal and flexible institution fundamental to commerce. In a globalised commercial world, one of the most important decisions a business can make is the appointment of an intermediary to market and potentially distribute their products to markets that may otherwise be inaccessible or too difficult to manage principally. As such, agency and/or distribution agreements (ADAs) are regularly used by practitioners in the context of both domestic and international commercial transactions.

  • CONTRACT: The age of reason

    Sarah Boland considers a recent ruling on the UCTA unreasonableness test

    The High Court has found that the requirement of reasonableness imposed by the Unfair Contract Terms Act 1977 (UCTA) can apply in circumstances where a party’s written standard terms and conditions are incorporated only in part and other terms are tailor-made: Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd [2016].

  • INFRASTRUCTURE: Northern Lights

    Sheridan Treger and Paul Grace examine the condition of the ‘Northern Powerhouse’ concept and what it might mean for promoters of major development in planning terms

    When informed of a rumour that he had died, the 19th century American author Mark Twain famously quipped ‘the reports of my death are greatly exaggerated’. Following the Brexit referendum last month, stakeholders are still waiting for similar confirmation about George Osborne’s ‘Northern Powerhouse’ strategy to boost economic growth in the North of England.

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Property Law Journal

  • PLANNING UPDATE: A layer of complexity
    Written by

    Lucy McDonnell examines the ramifications of the Localism Act five years on

    The Localism Act 2011 obtained royal assent in November 2011, gradually bringing into effect a raft of legislation supporting the government’s communities-based agenda. Following the Conservative Party’s 2010 manifesto, subtitled ‘Invitation to join the government of Britain’, localism remained a focus of the coalition government, and remains a focus of the current government.

  • CONSTRUCTION FOCUS: When to refer
    Written by

    John Starr analyses a case that may widen the scope of construction adjudication

    As will be well known to readers of this column, s108 of the Housing Grants, Construction and Regeneration Act 1996 says that a party to a construction contract has the right to refer a dispute arising under the contract for adjudication. The words ‘arising under’ are sometimes expanded in the contract itself, or by amendment, to include disputes arising under ‘or in connection with’ the contract. So what do the words ‘arising under’ actually mean? In a recent case described by the judge as raising an ‘arguably important area of construction law’, it was argued that a dispute about the terms on which a construction dispute had been settled was a dispute arising under the settlement agreement, rather than under the construction contract itself, and that it therefore could not be referred to adjudication under the provisions of the Act.

  • REPAIR: A sensible path

    Douglas Rhodes considers the residential landlord’s liability to repair external common parts

    The facts of Edwards v Kumarasamy [2016] are common to a vast number of blocks of flats across the country. Mr Kumarasamy was the long leaseholder of a flat within a block, which was accessed by a paved pathway leading to the main entrance door which opened onto a front hallway. Under the terms of the head lease, Mr Kumarasamy was granted an internal demise of the flat and access rights over the common parts. As is standard, the freeholder covenanted to maintain the common parts and Mr Kumarasamy covenanted to pay a service charge towards the maintenance costs. The head lease also contained a provision that the freeholder would not be liable for breach of the maintenance covenants until the leaseholder has given written notice to the freeholder and the freeholder has had a reasonable opportunity to remedy the disrepair.

  • BREAK CLAUSES: Beware the hypothetical tenant
    Written by

    Peter Lewis highlights the dangers to landlords of early break clauses when negotiating a renewal

    With regard to rent valuation, decided cases demonstrate that it can be difficult to determine what impact certain clauses in leases will have when a lease is renewed. HHJ Mitchell, who gave judgment on Britel Fund Trustees Ltd v B&Q plc [2016], elected to give due regard to the nature of comparables. The implications were that the market value was significantly discounted.

  • SERVICE CHARGES: Welcome clarity on major works

    A recent case makes clear that the consultation obligation lies with the superior landlord. Jessica Parry explains

    In the recent case of Leaseholders of Foundling Court and O’Donnell Court v The Mayor and Burgesses of the London Borough of Camden [2016], the Upper Tribunal (Lands Chamber) (UT) held that a superior landlord was obliged to consult with its direct tenant and any subtenants, in order for the costs of major works to be recoverable via the service charge.

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Trusts and Estates Law & Tax Journal

  • TRUSTEES: Clear blue water
    Written by

    Gillian Christian highlights a landmark Isle of Man judgment that casts doubt on Pitt v Holt [2013]

    In the first ever decision in the Isle of Man courts on the Hastings-Bass principle and on the law relating to equitable mistake following Pitt v Holt [2013], Deemster Doyle delivered a judgment that demonstrates clearly that UK and Isle of Man law are not one and the same, in a trusts case that explicitly recognises differences in approach and outcome between the two legal systems. The judgment has substantial implications for professional trustees, as well as for those who advise them, as it puts the onus on trustees to take tax advice or face claims for breach of duty, but gives comfort to settlors and beneficiaries who are keen to maintain the confidentiality of their family trust structures.

  • TRUST DEEDS: The deed in the drawer
    Written by

    Lisa Feng examines the implications of Swift v Ahmed [2015]

    The case of Swift Advances Plc v Ahmed [2016] is an example of what was referred to by Norris J in the case as the ‘deed in the drawer’ phenomenon. This is the situation where a person (in this case, Mr Ahmed) appears to be the owner of a property on the land register but when enforcement proceedings are issued, a deed is produced and relied upon to show that the entire beneficial interest in the property is actually held on trust for someone else (in this case, for Mr Ahmed’s wife).

  • TAX UPDATE: Changing landscapes
    Written by

    Deborah Pennington and James Bromley give the lowdown on tax changes for private clients

    UK residential property is a valuable asset, properties in London particularly so. Historically, the advantageous tax treatment available to both non-residents and non-domiciled clients holding UK residential property has only increased the attractiveness of this asset class for clients, whether it is for personal occupation or as part of a rental business.

  • CHARITY ROUND-UP: Any change?
    Written by

    Sarah Clune considers the timetable for the introduction of the regulator’s new powers under the Charities (Protection and Social Investment) Act 2016

    The UK government published a timetable during the summer explaining when the different sections of the newly enacted Charities Act will come into effect in England and Wales. The Charities (Protection and Social Investment) Act 2016 (Commencement No 1 and Transitional Provision) Regulations 2016 were made on 27 July 2016.

  • TRUSTS: Consequences of non-compliance

    Paul Marshall discusses a case which explores relief from liability for breach of trust under the Trustee Act 1925

    The judgment of His Honour Judge Mark Pelling QC, sitting as a judge of the Chancery Division, in Purrunsing v A’Court & Co and House Owners Conveyancing [2016], has attracted the interest of conveyancers and their insurers because a vendor’s conveyancing solicitor (AC) was held liable to the intending purchaser (P) of a property, the victim of identity fraud, despite being wholly innocent of the fraud and without knowledge or suspicion of it. Seemingly the decision runs counter to the widely held perception that a vendor’s solicitor in an identity fraud, innocent of their own client’s wrongdoing, is just as much a victim as the intending purchaser.

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