The Commercial Litigation Journal
PRACTICE: Costly estimates
Written by Ashfords
James Morrisonoutlines a recent application for security for costs
In Agents’ Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman) , the defendant sought additional security for costs in a claim relating to the terms of membership of online property portal OnTheMarket. The claimant had already provided security of £500,000. However, the defendant sought a further £1m in circumstances where it estimated that its total costs would be just over £2.8m.
ARBITRATION: Urgent relief
Written by Berwin Leighton Paisner LLP
Jane Parsonsexamines emergency relief in arbitration
It was commonly thought that the provisions for emergency relief under the London Court of Arbitration (LCIA) Rules 2014 increased a party’s options, in that there was a choice between applying to the arbitral tribunal or the English court for such relief. However, the recent judgment of Gerald Metals SA v Timis  strongly indicates that the court’s powers and parties’ options are in fact restricted in circumstances where the tribunal is able to provide timely and effective relief under the LCIA Rules.
PROCEDURE: Fee high fo fum
Written by Clyde & Co LLP
Tom Whiteand Emma Holmesreturn to the problem of court fees
In 2015 we saw some substantial rises in court fees, including, in particular, fees for issuing claims. This rise in fees saw vehement opposition in some quarters, on the basis that it would become uneconomic or prohibitively high for some claimants to bring their claims. We have now started to see examples in practice where, on the face of the claim form, claimants may have not paid the correct issue fee. There have been a number of recent cases in which the courts have considered this issue, in response to attempts by defendants to knock out claims on the basis of limitation arguments following payment of incorrect court fees. As the cases make clear, the approach that the courts will take depends on the reasons behind the payment of the incorrect fee. The calculation and payment of correct fees is something that claimants’ and defendants’ solicitors need to be aware of, or they may face potential allegations of negligence.
ENFORCEMENT: Hooray for Horton
Written by Penningtons Manches LLP
Alex Foxand R ebecca Andrews-Walkerweigh up the recent decision in Horton v Henry
When this topic was last considered two years ago, there was a real danger of pension rights (previously thought of as sacrosanct) being within the reach of trustees in bankruptcy by way of an income payments order (IPO). There were also two conflicting first instance decisions in play. The issue? Whether a pension entitlement capable of drawdown by election, but not yet in payment, can fall within the definition of income in s310(7) Insolvency Act 1986 (IA 1986), and so be the potential subject of an IPO.
REMEDIES: A walk in the park
Written by University of York
Kayleigh Bloomfieldlooks at Wrotham Park damages
Restrictive covenants may be instinctively characterised as belonging to the law of property. However, they can be a useful tool to utilise in employment contracts, partnership agreements, contracts of sale and commercial contracts more generally as a mechanism by which parties can impose negative stipulations upon one another in order to protect their commercial interests.
Employment Law Journal
CHRISTMAS IN THE WORKPLACE: Parties, presents and other pitfalls
Written by Pinsent Masons
Diane Nicolgives her tips on how employers and their advisers can enjoy the festive season by taking steps to reduce the risk of litigation
Christmas has traditionally been a time of cheer and goodwill to all men. For employers however, it can present significant challenges, ranging from incidents at, or relating to, Christmas parties to the increased workload for employers like Royal Mail, Amazon and high street retailers.
FINANCIAL SERVICES : Prepare for tough new rules on employee references
Written by CMS Cameron McKenna
Sarah Ozannediscusses the forthcoming requirement for banks to share information on any impropriety committed by employees who are looking for a new, senior job in the sector
The new regime to improve individual accountability in the banking sector came into force on 7 March 2016. It originated from the recommendations of the Parliamentary Commission on Banking Standards following its review of the banking system after the financial crisis. The Commission found the Approved Persons Regime to be a ‘complex and confused mess’ and that it had failed as a means for the regulators to engage with individual bankers.
VEXATIOUS LITIGATION: How to stop serial claimants in their tracks
Written by Watson, Farley & Williams
Angharad Harrisexplores ways for employers to deal with vexatious litigants, such as job applicants simply seeking a discrimination award
The term ‘vexatious litigant’ is bandied around in the context of employment tribunal claims. Indeed, while the government did not explicitly say that it intended the introduction of tribunal fees in 2013 to deter vexatious claims, this was referred to in the consultation and ministers have subsequently claimed that fees have had this effect. It has, however, always been rare for employers and their advisers to have to deal with a genuinely vexatious litigant – as opposed to one whose claim is simply weak or unmeritorious. The cases discussed below consider what makes a claimant ‘vexatious’, what the difficulties are for employers and their advisers when they are faced with a serial litigant and what tools are available to use in these circumstances.
DISCRIMINATION: Bake’s off: lessons from the Bert and Ernie cake case
Written by Weightmans LLP
A controversial judgment has reignited debate about the conflict between protection from discrimination and the values of organisations and their workers.
The judgment of the Northern Ireland Court of Appeal in Lee v Ashers Baking Company , better known as the Bert and Ernie cake case, has led to considerable debate. On the one side was a family-run company that did not wish to make a product endorsing something with which the owners did not agree, based on their religious ethos. On the other was a customer who had the right to order what he wanted without discrimination on the grounds of his sexual orientation.
THE YEAR AHEAD: 2017 and all that
Written by Fieldfisher
Will Hampshireand Richard Kenyonoutline ten key developments that the next 12 months have in store for employers and their advisers
Back at the beginning of the 19th century, skilled artisans in the textile industry were locked in a fierce battle with a rising class of industrialists. The Luddites smashed the new looms which they said produced cheap, inferior goods that threatened their way of life and protested against wage cutting and the use of unapprenticed youths as cheap labour. The state deployed the army and introduced legislation banning trade union organisation and making loom smashing a capital offence. People were killed on both sides and a number of Luddites were hanged.
Family Law Journal
STRIKE OUT: Early doors
Written by Rayden Solicitors
Rachel Nichollrevisits the impact of Vince v Wyatt and guidance on applications to strike out in family proceedings
An application to strike out a statement of case remains rare in family proceedings. Such applications are far more common and widely used in civil cases under the Civil Procedure Rules 1998 (CPR 1998). The family courts have the power to strike out a statement of case pursuant to r4.4, Family Procedure Rules 2010 (FPR 2010). When the FPR 2010 came into force on 6 April 2011, this was just one of the new case management powers adopted from the CPR 1998. This article will address the key provisions of the FPR 2010 as to strike out applications, what to consider when making an application under r4.4, FPR 2010, and case law examples of how the family courts have approached their powers of strike out.
BREXIT: Creating uncertainty
Written by Gordon Dadds
Lara Myershighlights the implications of Brexit and the potential impact on jurisdiction issues in family proceedings
Given the increasingly international nature of families, the implications of the leave vote in the EU referendum in June 2016 are particularly relevant within the realms of family law. This article examines the potential impact of the UK’s decision to leave the EU on issuing divorce proceedings, child abduction and maintenance enforcement.
INHERITANCE ACT: Cutting the cord
Written by Weightmans LLP
Lottie Tylerreviews how an adult child’s conduct can affect a claim brought under the Inheritance Act (Provision for Family and Dependants) 1975
The successful claims brought by independent, adult children under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) can provoke strong reactions. It can be argued that a person should be free to leave their estate to whomever they choose, and if they have taken the time to make a will setting out their wishes it is unfair for those wishes to be undermined. Claims from independent, adult children under I(PFD)A 1975 attract further controversy as the applicant will not generally be in the position of losing an income or a home as a result of being excluded from the will, as is the case for an applicant who was financially dependent on the deceased. Equally, if an adult child was estranged from, or had an acrimonious relationship with, the deceased parent, it is objectively difficult to understand their sense of entitlement to a share of the estate. But, to quote Niccolo Machiavelli, sometimes it may be the case that:
INTERNATIONAL FOCUS: Developing markets
Written by Withers LLP
Rita Kuand Philippa Hewittoutline family law in China, and cross-border issues with Hong Kong, in the context of the rapid growth in Chinese high-net-worth divorces
The papers are buzzing with the news of the latest divorce settlement among the ultra-rich in China. This time it is the country’s most affluent couple under the age of 40 who, according to the Hurun report, which tracks wealth among the country’s super rich, have shared assets of 23bn yuan (£2.6bn). According to the Shanghai Securities News (which is run by the official Xinhua News Agency) this could be the country’s most expensive divorce case as the value of the equity transfer will reach 7bn yuan.
FEMALE GENITAL MUTILATION: Raising awareness
Written by Dawson Cornwell
Anne-Marie Hutchinsonand Shabina Begumconsider mandatory reporting duties, legislation and the development of the case law in relation to female genital mutilation
According to the NHS statistics in England there were 1,242 newly recorded cases of female genital mutilation (FGM) between January and March 2016 (see www.legalease.co.uk/fgm). The statistics include 11 girls who were born in the UK, and 2% of the new cases related to girls under the age of 18.
Personal Injury Law Journal
PATIENT AUTONOMY: Doctors’ duties in obtaining consent
Written by Foot Anstey LLP
Paul Sankeyhighlights the ongoing implications of Montgomery v Lanarkshire Health Board
A very significant change in the law took place in March 2015 which has serious implications for doctors discussing options for treatment with patients and obtaining consent for them. The case of Montgomery v Lanarkshire Health Board  is now familiar law for practitioners in the field. It redefined the legal relationship between doctors and patients. It is surprising, however, how little the implications have been tested in subsequent case law. However more than a year on it is appropriate to consider the impact of the decision both in terms of the law and medical practice.
CASE REPORT: Edwards v London Borough of Sutton  EWCA CIV 1005]
Written by 12 King's Bench Walk
Contributory negligence; Occupiers Liability Act 1984; dangerous state of premises
On the 10 September 2010, while wheeling his bicycle across an ornamental footbridge in one of the defendant’s public parks, the claimant fell from the bridge into the stream below and suffered serious injury.
SETTLING CLAIMS: Counting the cost of rejection
Written by Hardwicke Chambers
The High Court has ruled that a claimant’s part 36 offer was a counter offer, consequently an earlier without prejudice offer was no longer open for acceptance.
In the case of DB UK Bank Ltd (T/A DB Mortgages) v Jacobs Solicitors  it was held that a party who made a Part 36 offer in response to a ‘without prejudice save as to costs’ offer had in law rejected the common law offer to settle and so a subsequent acceptance was not possible.
DAMAGES AWARDS: Keeping it in control
Written by Hodge Jones & Allen
Philippa Bartoninvestigates the risks and pitfalls of sending damages to vulnerable clients
Most personal injury practitioners will at some time or another act for vulnerable clients such as those with head injuries, learning disabilities or mental illness. While these clients may have enough capacity to give instructions on the conduct of their claim and any settlement offers, this does not necessarily mean they have the capacity needed to manage large sums of money.
COSTS: Costs management and detailed assessment
Written by Legal Costs Negotiators Ltd
Paul Jonesdiscusses the degree judges are bound by the approved costs budget
Costs budgets were a central pillar of Lord Justice Jackson’s civil litigation reforms with the stated intention that they would deliver predictable, proportionate costs to all. However, while one could argue that the need to prepare costs budgets at an early stage certainly focuses the mind on costs, even the most ardent supporter would be hard pressed to believe that they have been an unmitigated success as they have undoubtedly caused serious delays in the courts and have not delivered the expected rewards of more proportionate costs. Case law on the subject is relatively sparse but the recent decision of a regional costs judge in Merrix v Heart of England NHS Trust  gives an excellent reminder of the role of costs budgets within the broader context of costs control and case management generally.
Procurement and Outsourcing Journal
CONTRACT: Keeping the faith
Written by Herbert Smith Freehills LLP
In the first of two articles,
Chris Parker, Gregg Rowanand Nick Pantlinhelp readers to navigate obligations of good faith in commercial contracts
The traditional starting point in English contract law is that parties are free to do what they like so long as they do not breach the agreed terms. But it is becoming increasingly common for parties to agree terms requiring them to act in ‘good faith’, or similar. Even where no such term is expressed in the contract, courts and tribunals are increasingly being asked to imply good faith obligations.
DRAFTING: No publicity
Written by Burges Salmon LLP
Stephanie Rickardand Punim Andaexamine a recent decision on the classification of public works contracts
The case of R (Faraday Development Ltd) v West Berkshire Council  will be of interest to local authorities and developers alike. The judgment provides detailed guidance on how a land development agreement can be structured so that the resulting contract is outside the scope of public procurement law.
IT: Head in the clouds and feet on the ground
Written by Nabarro LLP
Marian Angand Dr Sam De Silvareview recent guidance on cloud computing and outsourcing
Cloud computing has seen huge uptake by companies across all industries over the past decade. The cloud offers possibilities for all forms of enterprise, with computing resources ranging from infrastructure and data centres to software applications available both cheaply and on demand. It is a fast-growing business estimated by Gartner to triple in value to around US$67bn by 2020.
REMEDIES: Telling tales
Written by Walker Morris LLP
David Williamsreports on a recent judgment on misrepresentation
The High Court recently considered whether a company was induced to conclude an agreement by way of misrepresentations made by a third party and, if so, whether the other party to the agreement was liable for the consequences.
INFRASTRUCTURE: Back on the rails
Written by Addleshaw Goddard LLP
Paul Hirstsummarises the findings of the Northern Freight and Logistics Report
It has been 18 months since Transport for the North (TfN) published their Northern Transport Strategy report. That report acknowledged that there has never been a single plan for freight and logistics across the North, and TfN promised to develop a Northern multi-modal freight and logistics strategy, to be published in 2016.
Property Law Journal
CONSTRUCTION FOCUS: Caught in the middle
Written by John Starr
The co-ordination of adjudications on multi-tier projects can lead to conflicts.
The universal availability of adjudication as a means of dispute resolution in the construction industry can have potentially serious implications on multi-tier projects. For example, inconsistent decisions in adjudications between employer and contractor and between contractor and sub-contractor can leave the contractor with a loss which it cannot pass down the supply chain without recourse to the courts.
ADVERSE POSSESSION: Verging on the extreme
Written by Nabarro LLP
Laura Coleand Edward Gamblediscuss the best way to deal with squatters
Although we are all familiar with the concept of squatters, a person can only claim a legal right to be registered as the title owner to land if it can prove to the Land Registrar’s satisfaction that it has been in actual, physical possession of that land for the required length of time, without the permission of the legal owner. Conversely, this means that for land owners, diligence is required to ensure that if a third party is accessing and/or using land without a right to do so, action is taken by the land owner as soon as possible to either prevent possession, or to make it clear that the possession is unauthorised.
FRAUD: Buyer beware
Written by Dentons
Sonia Ferreira, Karen Jacobsand Tim Constableconsider who is to blame if the seller is an imposter
An important judgment handed down by the High Court considered the liability of both solicitors and estate agents in circumstances where the seller of a property turned out to be an imposter.
PROPRIETARY ESTOPPEL: Down on the farm
Written by Tanfield Chambers
Rebecca Cattermolehighlights the current position on the doctrine of estoppel in the context of recent case law
The case of Moore v Moore  is the most recent illustration of the treatment of proprietary estoppel by the courts and, once again, shines a spotlight on farming businesses and the perils of informal arrangements. It is a somewhat typical case: a father has promised his share in the family farm to a son who, in turn, has devoted his whole life to it but, following a souring of relations, the father has sought to resile from that promise. The court found that the son was entitled to an equitable interest in the father’s share of the farm and assets by way of proprietary estoppel.
SERVICE CHARGES: What is reasonable?
Written by Walker Morris LLP
Karl Andersreviews recent case law concerning residential service charges, highlighting key lessons for landlords and tenants
Service charges are a common source of friction between landlords and tenants. Residential service charge disputes in particular can be very contentious, especially when hefty charges are levied on unsuspecting tenants, and not least where tenants cannot easily see or understand where sums charged are being spent, what charges relate to and whether they are reasonable.
Trusts and Estates Law & Tax Journal
CHARITIES AND LITIGATION: Be prepared
Written by Russell-Cooke LLP
Michael Colledgeand Chris Rowseadvise charity trustees on best practice when faced with litigation
Every organisation will face legal issues at some point, whether that is the sale or purchase of property, or a dispute with another party. Charities are no different, but in the case of disputes charity trustees will have some different considerations to take into account when considering whether to enter into litigation, including the duty to preserve charity assets.
WILLS: Crossing a line
Written by Brendan Cotter
Brendan Cotterconsiders how likely a claim against a testamentary predator is to succeed
As Hilaire Belloc wrote in Dedicatory Ode 1910: ‘The question’s very much too wide, and much too deep and hollow, and learned men on either side use arguments I cannot follow.’
IHT: Out of step
Written by Pump Court Tax Chambers
Sadiya Choudhuryreviews a case considering the IHT consequences of the transfer of a reversionary interest to an offshore settlement
In Michael Lawton Salinger and Janice Lawton Kirby v Revenue and Customs Commissioners , the First-tier Tax Tribunal (Judge Anne Redston and Mrs Elizabeth Bridge) (the FTT) considered the inheritance tax consequences of the transfer of a reversionary interest to an offshore settlement. The arrangement at issue has since been the subject of anti-avoidance legislation in the form of s74A Inheritance Tax Act 1984 (IHTA), introduced in 2012.
HMRC: Tax Britannica
Written by Brabners LLP
Hayley Watsonand Duncan Baileyexamine HMRC’s proposal to penalise ‘enablers’ of tax avoidance schemes
The government’s most recent attempt to clampdown on tax avoidance comes in the shape of the consultation paper ‘Strengthening tax avoidance sanctions and deterrents: discussion document’, published by the HMRC on 17 August 2016. This comes as no surprise, given the reoccurring theme to tackle tax evasion/avoidance in recent Budgets, with the last being no different. The government is now looking at ways to target those who ‘enable’ tax avoidance plans/schemes which are later defeated in court.
TRUSTS AND CO-OWNERSHIP: No backing out now
A recent case shows that constructive trusts can be used to justify an arrangement which has neglected the formalities.
Ely v Robson  is another of the many cases involving unmarried couples fighting over the ownership of their home. Almost a decade ago the Law Commission recommended the introduction of a statutory jurisdiction which would give the courts power to alter interests in property when unmarried couples separate, which would have been similar, but more restricted, than those that the courts have on divorce. However, the government has refused to implement those recommendations. The result is that unmarried couples are largely treated like any other two people having a dispute over property, and are forced to rely on the law of trusts, as it has been developed by the courts over the years (and some would say that the desire to do justice to unmarried couples has had the result that the law of trusts has been bent out of shape). Rather than taking all the circumstances into account and reaching a fair outcome (which is the approach and aim of the matrimonial legislation) disputes between unmarried partners can often turn on conversations had many years ago, as this case illustrates.