The Commercial Litigation Journal
PART 36: Rating the offer
Written by Clyde & Co LLP
Tom Whiteand Claire Curtisreport on the effect of currency fluctuations on Part 36 offers
Part 36 is intended to provide a predictable and self-contained code as to the consequences of compliant offers to settle litigation. However, not all commercial litigation is concerned with pounds sterling, which can lead to complications if there are currency fluctuations between the time of a Part 36 offer and the date of judgment. In Novus Aviation Ltd v Alubaf Arab International Bank BSC(c) , Leggatt J had to consider whether it was just to apply the cost consequences set out in CPR 36.14(3) of the then Civil Procedure Rules (now CPR 36.17(4)) in circumstances where Novus had beaten its Part 36 offer (made in sterling), but there had been a considerable drop in the value of sterling to US dollars (dollars being what really mattered to Novus) between the offer being made and the date of judgment. On the facts, he held that it would be unjust to award Novus what would otherwise be a windfall as a result of the currency fluctuation, and refused to allow Novus the cost benefits of beating a Part 36 offer and ordered costs to be assessed on the standard basis.
REMOTENESS: The primrose path
Written by Burges Salmon LLP
Michael Wardreflects on recovery under cross-undertakings in freezing injunction cases
Cross-undertakings in damages (CUDs) are given by an applicant for a freezing injunction, and are designed to protect the respondent from loss arising from the injunction. Inquiries into calculating such loss are typically complex and expensive pieces of litigation. Further, they can result in significant awards; in the recent case of Fiona Trust and Holding Corporation v Privalov  Males J awarded approximately $60m for lost profits.
PRIVILEGE: Keeping secrets
Paolo Sidolilooks at a reassertion of privilege by the Court of Appeal
In Avonwick Holdings Ltd v Shlosberg , the Court of Appeal considered whether privilege attaching to a bankrupt’s documents constituted property which vests in a trustee in bankruptcy and, if so, what use can be made of the privileged documents in the exercise of a trustee’s statutory powers.
INJUNCTIONS: Let me know before you go go
Written by Lamb Chambers (Chambers of Mark West)
David Sawtellassesses the utility of notification injunctions
In Holyoake v Candy  Nugee J gave jurisprudential legitimacy to the use of a notification injunction to help prevent a respondent from dissipating assets. By this type of order, a party is required to give notice when certain assets are disposed of. Depending on the wording of the order, the notice can be given either before or after the relevant disposal. This form of order is less onerous than a typical freezing injunction. Although such orders have been sought and obtained before, this was the first case where the relevant jurisdiction to make such an order was fully discussed. As such, it throws light on the test that the court will apply before making such an order, as well as the likely form of such an order.
COSTS: A fair exchange
Written by Herbert Smith Freehills LLP
Maura McIntoshsummarises a currency-sensitive judgment
When assessing the costs to which a German claimant was entitled on having succeeded in its patents claim in the English High Court, the court in Elkamet Kunststofftechnik GmbH v Saint-Gobain Glass France SA  has awarded an additional sum of £20,000 to compensate for the claimant’s exchange rate loss on payments to its solicitors, particularly in light of the significant fall in the value of sterling against the euro since the EU referendum result.
Employment Law Journal
WORKING TIME: Rest breaks: EAT clarifies positive approach required from employers
Written by Shoosmiths LLP
Liz Parkinoutlines a recent EAT decision which offers clear guidance on the obligation to provide workers with a rest break
The Working Time Directive (WTD) requires that all EU workers should have ‘adequate rest periods’. In particular, Art 4 provides that:
DISABILITY DISCRIMINATION: A round-up of recent cases
Written by Veale Wasbrough Vizards
Mark Stevensreviews four EAT decisions on the requirements around medical evidence in disability cases and on what amounts to a disability
The autumn and winter of 2016 saw a flurry of disability discrimination decisions in the Employment Appeal Tribunal (EAT) that are likely to have an impact on employment law in 2017 and beyond.
RELIGIOUS DISCRIMINATION: Is the law working?
Alex Bearmanconsiders the findings of a recent report on whether the legislation which protects religious freedoms is striking the right balance
The laws which seek to protect people from religious discrimination continue to ignite controversy about how far that protection should go. Should an employer with a religious ethos have the right to refuse to employ an individual on religious grounds? Should employees have the right to opt out of work duties which conflict with their religious views? Should an organisation have the right to refuse to carry advertising which promotes a religious message?
BEREAVEMENT LEAVE : Do we need more regulation?
Written by Kemp Little LLP
Calls have been growing for employees who suffer the loss of a child or other close relative to be entitled to paid time off, report
Anna Byfordand Marian Bloodworth
As the spate of celebrity deaths in 2016 showed, life is unpredictable and in some cases tragically short. Loved ones, friends and family members can be taken away from us through illness or an accident, sometimes very unexpectedly. At such times, it is natural for employees to look to their employers for understanding, support and some time away from work to make practical arrangements and to grieve. But does the law adequately look after them at this difficult time?
CORPORATE GOVERNANCE: Restoring the reputation of big business
Written by Norton Rose Fulbright
Catrina Smithand Amanda Sandersexamine proposals for companies to publish pay ratios showing what their senior executives earn compared to the rest of the workforce and for increased employee involvement in decision making
On 29 November 2016, the Department for Business, Energy and Industrial Strategy published a Green Paper on corporate governance reform. It sets out a range of proposals for strengthening the UK’s corporate governance framework, since the ‘behaviour of a limited few has damaged the reputation of many’. It seeks views on three areas:
Family Law Journal
DIVORCE: Potential pitfalls
Written by Dawson Cornwell
Philippa Daviesand Anna Shadboltnavigate the more problematic aspects of divorce procedure and provide a reminder of the remedies available
Divorce law and procedure can appear easy to navigate, yet for the new (or even seasoned) practitioner there are oddities along the way that require careful consideration. This article explores some of the more unusual elements of divorce law and procedure. With the assistance of key case law, we work through the process from service of a petition to decree absolute, summarising the principal stages and highlighting particular considerations that are sometimes easy to miss. Particular attention is paid to any international considerations that are all too important when advising in today’s increasingly global society. This article highlights the alarm bells that should be ringing where, for example, a respondent avoids acknowledging service, or if there is a dispute as to whether a decree should be granted or rescinded, and provides insight as to how such issues can be dealt with both on a practical and a legal level.
DOMESTIC ABUSE: Restrictive measures
Written by Rayden Solicitors
Nicola Cafferyanalyses the evidence required for a non-molestation or occupation order, and guidance on the duration of such orders
The decision in PF v CF  concerned an application by a husband for permission to appeal non-molestation and occupation orders and includes an interesting discussion as to the relevant law. An occupation order (which more often than not goes hand in hand with its non-molestation sibling) remains arguably the most draconian order available to the family courts. To override proprietary rights and exclude a person from their home on the civil standard of balance of probabilities can be punitive and harsh, particularly if the order is made on a without notice (ex parte) basis. The judgment in PF v CF sets out the relevant law to be considered, and examines the issues facing judges at first instance.
PRE-NUPTIALS: No excuses
Camilla Thorntonexamines case law post-Radmacher where a party has sought to overturn the terms of a nuptial agreement
It has been five years since the Supreme Court held in Radmacher v Granatino  that the court should give effect to a nuptial agreement that is:
DISCLOSURE: Managing management
Written by Paris Smith LLP
Eugenie Taylorlooks at whether it is possible to exonerate a party from their duty of disclosure
In Roocroft v Ball , the Court of Appeal allowed an appeal against an order summarily dismissing the appellant’s application to set aside a consent order made in financial remedy proceedings. The application was made on the grounds of non-disclosure. The respondent was the sister of the deceased, and represented the estate at the appeal hearing.
SHORT MARRIAGES: Brief encounter
Written by Slater and Gordon
Joanne Greensets out the factors that will be taken into account by the court where a marriage is short, and looks to case law for the principles applied
Practitioners will often deal with cases where the parties have been married for a short length of time, and in some cases the majority of the assets may have been brought into the marriage by one of the parties. These cases are always difficult to assess since most of the relevant case law is not recent and there will be a number of different factors that could affect the outcome.
Personal Injury Law Journal
CLINICAL NEGLIGENCE: A mixed bag
Written by Parklane Plowden Chambers
Tom Sempleconsiders the Department of Health’s latest revision to its proposal to introduce fixed recoverable costs in clinical negligence cases
In August 2015, the Department of Health announced its proposal to introduce a fixed recoverable costs regime for clinical negligence claims worth up to £250,000. As of October 2016, the Department of Health now proposes to consult on such a regime for claims worth up to £25,000 only. The policy change was announced following the publication of the Civil Procedure Rules Committee’s July 2016 meeting minutes.
CASE REPORT: Fletcher v Chancery Lane Supplies Ltd  EWCA Civ 1112
Written by 12 King's Bench Walk
Vicarious liability; wrongful conduct; close connection test; lack of evidence
In Cox v Ministry of Justice  and Mohamud v WM Morrison Supermarkets plc  the Supreme Court in effect relaxed the criteria for vicarious liability. The facts of Mohamud (where a supermarket was held liable for an unprovoked assault perpetrated by one of its kiosk attendants on a customer) suggest that nearly all torts committed on the employer’s premises during work hours would satisfy the ‘close connection’ test.
OCCUPATIONAL STRESS: Two of a kind
Written by Rushmi Sethi
Rushmi Sethiexplores the inter-relationships between personal injury and employment law, when dealing with liability for psychological injury in occupational stress claims
Liability for psychological injury in occupational stress claims is a rapidly evolving area of the law of tort, and the following discussion shows the range of issues in employees’ claims for psychological injury that have been brought to trial.
COSTS: Additional problems with proportionality
Written by Legal Costs Negotiators Ltd
Paul Jonesanalyses a recent case in which costs were incurred before and after the introduction of the current proportionality rules
If one could somehow isolate and distil down the last 20 years of legal costs history into one single word, that word would surely be ‘proportionality’. Initially promulgated by Lord Woolf in his 1996 ‘Access to Justice’ report as a panacea for many of the problems besetting civil justice, its implementation has fed seemingly endless arguments between lawyers as to what it actually means and how it should be applied. Charles Dickens’ maxim in Bleak House that ‘the one great principle of the English law is, to make business for itself’ has never seemed so apt. Lord Justice Jackson, in his own 2009 ‘Review of Civil Litigation’, recognised the ongoing problems and sought to solve the Sisyphean problem of legal costs with a new package of interlocking reforms to ‘control costs and promote access to justice’ and, once again, proportionality was at its heart. The jury is still out on whether the recent implementation of those reforms will ultimately deliver on either or both of their stated aims but, for now at least, the arguments over proportionality continue, as illustrated by the recent decision in King v Basildon & Thurrock University Hospitals NHS Trust .
DEPENDENCY CLAIMS: An odyssey around Section 3 of the Fatal Accident Act 1976
Written by Parklane Plowden Chambers
Jonathan Godfreyexamines the replacement of services provided by the deceased pursuant to s3 of the FAA
The remit of s3 of the Fatal Accidents Act 1976 (the FAA) was examined by the High Court in the recent decision of Dr Kumudu Kumari Rupasinghe (suing on her own behalf and as administratrix of the estate of Rohan Rupasinghe (Deceased)) v West Hertfordshire Hospital NHS Trust . The matter was heard before Mr Justice Jay on 8 November, 2016.
Procurement and Outsourcing Journal
REGULATION: Regular development
Written by Ashfords
Elizabeth Gibsonreports on the scope of the PCR 2015
The High Court has dismissed a challenge by Faraday Development Ltd (FDL) against West Berkshire District Council (WBDC), on the basis that a development agreement fell outside the Public Contracts Regulations 2015 (PCR 2015) (R (Faraday Development Ltd) v West Berkshire Council ). There were two key aspects of FDL’s challenge: whether WBDC had failed to comply with its statutory duty under s123(2) of the Local Government Act 1972; and whether WBDC acted lawfully in deciding that the bid fell outside of the PCR 2015. This article will focus on the second aspect of FDL’s challenge.
IT: Sorting sourcing
Written by Supportica
Sana Khanexplores the need for an opensource software policy
Nowadays, most organisations use opensource software (OSS) somehow, whether it is embedded in an organisation’s own information technology infrastructure or used to provide products and/or services to customers.
AMERICAN CYANAMID: Money isn't everything
Written by Bevan Brittan LLP
Emily Heardweighs up the adequacy of damages and the lifting of the automatic suspension when profit is not the only consideration
In the recent High Court procurement challenge of Perinatal Institute v Healthcare Quality Improvement Partnership , the court lifted the automatic suspension, holding that while there was a serious issue to be tried, damages would be adequate for the claimant, and further that the balance of convenience favoured lifting the suspension.
PRACTICE: Try before you buy
Written by Nabarro LLP
Dr Sam De Silvadiscusses the merits and operation of acceptance testing
Whenever a customer procures products/services it must consider whether it needs to test those products and services before it accepts them. This process is usually called acceptance testing. It is commonly tied in some way to commissioning, which is the internal process followed to prepare new goods/services for use by the customer.
REMEDIES: Out of gas
Written by Macfarlanes LLP
Doug Wassand Nikolas Irelandprovide an update on contractual remedies
The Court of Appeal’s recent decision in Scottish Power UK plc v BP Exploration Operating Company Ltd  has given guidance on the approach the court should take when considering whether a contractual remedy for a breach of contract should be interpreted as the sole remedy for that breach to the exclusion of all other common law remedies.
Property Law Journal
LANDLORD AND TENANT: Expend energy now
Written by Eversheds
Will Denshamand Kanchan Adiklook at new energy efficiency rules and their impact on rent reviews
Rent review surveyors have been having a busy time over the past few years with rents continuing to rise. Rents are expected to continue to be higher than they were five years ago at lease grant or at the previous review for a few more years, depending on the impact of the UK’s decision to leave the EU and other global macro-economic influences from near and afar.
CONSTRUCTION FOCUS: Next stop – adjudication
Written by John Starr
John Starrdiscusses the lessons to be learned from forming oral contracts
I wrote recently about a case where the need for a properly documented construction contract was compelling (‘A minor matter?’, PLJ346, November 2016, p21). It was the case of Goldsworthy v Harrison , where the parties’ failure properly to agree the terms of the contract between them meant that it was not clear what those terms were and, specifically, whether they included an adjudication clause. Without an adjudication clause, the contract fell within the residential occupier exception in s106 of the Housing Grants, Construction and Regeneration Act 1996 and adjudication was not available. As such, Goldsworthy’s attempt to enforce an adjudicator’s decision in its favour failed.
PLANNING UPDATE: SEA change
Written by Dentons
Rachael Herbertexamines recent decisions concerning the role that strategic environmental assessments play in the plan-making process, and the consideration of reasonable alternatives
There has been a spate of recent cases concerning the requirement for plan makers to consider ‘any reasonable alternatives’ as part of the plan-making process and the role Strategic Environmental Assessment (SEA) plays in how that should be approached.
STATUTORY DUTIES: The need to consult
Written by Berwin Leighton Paisner LLP
Jeremy Stephenconsiders why s20 of the Landlord and Tenant Act 1987 is overdue for amendment
Consultations under s20 of the Landlord and Tenant Act 1985 (the Act) and its regulations have become a fact of life for landlords in the residential sector. However, the regulations which operate without too much difficultly in the more straightforward residential scenarios have become stretched in recent years.
CONTRACTS: A joint liability?
Written by PwC LLP
Can a contract for the sale of land be enforced when one party has signed for another without consent?
Rebecca Fieldand Amit Unadkatexplain
An important judgment handed down by the Court of Appeal considered whether a contract for the sale of land was valid and enforceable where one party had purportedly signed on behalf of themselves and another, but without obtaining the requisite consent to do so and without the second party ratifying the contract.
Trusts and Estates Law & Tax Journal
ESTATE ADMINISTRATION: Put to rest?
Written by Dawson Cornwell
Martin Beardand Zoe Fleetwooddiscuss the issues that can arise on disposal of a body and cryo-preservation
Many will have heard or read the news stories of the 14-year-old girl (known as JS) who made a successful application for court orders in Re JS (Disposal of Body)  that had the effect that her body be cryo-preserved following her death. To these novel facts and the underlying dispute the court applied principles of law known to lawyers practising in the area of wills and probate and estate administration and trust law. The case serves to remind practitioners of the law concerning the disposal of human remains and the role of personal representatives.
JURISDICTION: A question of construction
Written by Serle Court
Kathryn Purkisexamines the meaning of ‘United Kingdom’ in wills and trusts documents
In The Royal Society v Robinson , Nugee J had to construe the following provision in a will made in 2009: that it should ‘extend only to property of mine which is situated at my death in the United Kingdom’. In fact, the testator held significant sums of money in certain offshore accounts in Jersey and in the Isle of Man, and which had been opened between 1996 and 2004, before the will was made. If these assets did not fall to be administered under the will, there would be a partial intestacy, as the only other will made by the testator was limited to his Swiss assets.
GIFTS: Holding the purse strings
Written by Penningtons Manches LLP
Iain Managhananalyses new OPG guidance on giving gifts on behalf of someone else
Last year the Office of the Public Guardian (OPG) produced a guide aimed directly at attorneys and deputies entitled ‘Giving Gifts for Someone Else’. The aim of the guide is to provide clear advice, based on the legislation, as to what gifts an individual acting under an enduring or lasting power of attorney or deputyship order can make on behalf of someone else.
CONSULTATION ROUND-UP: Where are we now?
Written by Wedlake Bell LLP
Emma Lovedayprovides a snapshot of the status of consultations affecting the private client practitioner
Looking back, 2016 has been a year of change for many reasons, and the private client world has been no different with a number of new policy announcements on trust, tax and probate issues, which could potentially have wide-reaching consequences for all of our clients. Consultation after consultation has been published, some with responses, some with responses pending. Below is a summary of where we are with the major policy announcements of 2016.
TRUSTEES : It’s a small world
Written by STEP
Emily Deanegives the lowdown on FATCA and CRS
This article will endeavour to provide practical guidance as to what you should be doing for your clients on a daily basis in respect to FATCA or CRS. We have provided three common client scenarios with different types of trustees but in each case the income received in the tax year by the trustees is consistently from quoted securities and bonds and is in excess of 50% of the total income of the trust in each year. The trust scenarios are as follows: