Sun11192017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • INJUNCTIONS: Glacial globe trotting

    Gareth Keillor and Tom Brown review the test for establishing the existence of assets for freezing injunctions

    In the recent case of Ras Al Khaimah Investment Authority v Bestfort Development LLP [2017], the Court of Appeal has held that, to obtain a freezing injunction, an applicant must establish either a ‘good arguable case’ or ‘grounds for belief’ that assets exist. It rejected the higher threshold of a ‘likelihood’ that assets exist, but held that it is not enough for the applicant to assert that the respondent is apparently wealthy and must have assets somewhere.

  • INDEMNITIES: Expensive conventions

    Russell Hill and Oliver Ward-Jones discuss the liability of office holders for costs in CFA cases

    The recent Court of Appeal case of Stevensdrake Ltd v Hunt [2017] provides guidance on whether the office holder is liable to meet the legal costs in conditional fee agreement (CFA) cases where there are insufficient recoveries in the estate to meet those costs.

  • PRIVILEGE: Accidents will happen

    Susan Rosser and Jonny Cohen consider a recent case of accidental disclosure

    In the recent case of Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd [2017], the Court of Appeal considered again the principles that should be applied in granting equitable relief to a party which has inadvertently disclosed privileged materials to the other side.

  • BREXIT: Courting Europe

    Tom Snelling and Lauma Skruzmane continue their examination of litigation after Brexit

    In our previous article, we examined how jurisdiction and recognition and enforcement will be dealt with after Brexit, from the default regime to potential options. In this part, we look at post-Brexit problems and possible solutions for litigators.

  • COSTS: Keep it in proportion
    Written by

    Gwendoline Davies and Claire Acklam make sense of the rules and recent case law on proportionality of costs

    Proportionality. Since the introduction of Jackson LJ’s sweeping reforms to civil litigation procedure in England and Wales in 2013, this word has had a fundamental impact on the level of legal costs a successful party can recover from its opponent at the conclusion of a case, and consequently on a party’s decision whether to litigate at all. No party wishes to incur unreasonable and disproportionate costs, but there is often a disconnect between costs reasonably and necessarily incurred in the context of the litigation, and costs which the court may consider to be proportionate. While the Civil Procedure Rules (CPR) provide rules and guidance which go so far, there is currently no prescriptive method for ascertaining proportionality of costs and the approach taken by the judiciary varies on a case-by-case basis. In this article we shall examine the key case law on proportionality of costs and ask whether any key themes can be identified to assist those involved in, or considering, litigation.

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Employment Law Journal

  • IMMIGRATION: Home Office updates its guidance on right-to-work checks

    Following the publication of revised government guidance, Charlotte Jayaseelan explores what checks employers need to make to comply with the duty to prevent illegal working

    Employers must carry out ‘right-to-work’ checks on prospective employees to prevent illegal working in the UK. The Home Office has published guidance to assist employers with meeting this obligation, an updated version of which came into effect on 16 August 2017.

  • DRAFTING EMPLOYMENT CONTRACTS: How to reap the benefits of a probationary clause
    Written by

    Michelle Last explains why probationary periods can be so valuable for employers and how to obtain maximum advantage from the inclusion of a probationary clause in employment contracts

    Employers often question the value and appropriateness of probationary periods for new employees. But when an employer faces the dawning realisation that their new employee may be more ‘super fail’ than ‘super star’, a well-drafted probationary period clause in the employment contract can prove invaluable.

  • ANNUAL LEAVE: More holiday headaches for employers

    Eleanor Boyd and Michael Halsey share some practical tips on managing employees’ annual leave in light of the Ryanair debacle and recent holiday pay decisions

    Many readers will have seen (and possibly been affected by) low-cost airline Ryanair’s mass flight cancellations during September and October this year. Ryanair later confirmed that it was cancelling a further 18,000 flights between November 2017 and March 2018, which it was anticipated would cost the airline up to €25m.

  • TAX EVASION: Avoiding liability under the Criminal Finances Act

    Dominic Stuttaford and Amanda Sanders discuss the procedures employers need to put in place following new legislation which makes it a criminal offence not to stop employees or contractors from facilitating tax evasion

    The Criminal Finances Act 2017 (the Act) came into force on 30 September 2017. It introduces new corporate criminal offences of failing to prevent an employee, agent or any other person who is performing services for the organisation from criminally facilitating tax evasion, whether the tax is owed in the UK or a foreign country. The new offences do not alter what is criminal, but change who can be held to account for the acts. Employers may therefore find themselves liable and need to assess how they will deal with the new offences.

  • UNFAIR DISMISSAL: Disciplinary investigations – how much detail is reasonable?
    Written by

    The EAT recently had to decide whether a misconduct investigation was unreasonable because it was too thorough. Corinne Hough investigates

    In NHS 24 v Pillar [2017], the Employment Appeal Tribunal (EAT) concluded that an employment tribunal was wrong to find a dismissal unfair because the investigation report included details of previous incidents which had not resulted in disciplinary proceedings. The EAT found the tribunal’s decision perverse given that the tribunal also decided the dismissal was reasonable based on the information available to the dismissing officer, which included the details of the previous incidents.

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Family Law Journal

  • HADKINSON ORDERS: Harsh realities
    Written by

    Rachel Nicholl highlights a remedy available where a litigant wilfully fails to comply with a court order

    In Assoun v Assoun [No 1] [2017] and Assoun v Assoun [No 2] [2017] the Court of Appeal was concerned with a Hadkinson order made in financial proceedings where the husband argued that the use of the order was procedurally unfair, wrong in law and disproportionate.

  • TRUSTS: Divining intention
    Written by

    Abigail Lowther considers sham trusts and their effect on financial claims

    In ND v SD [2017] Roberts J considered sham trusts, the beneficial ownership of various shareholdings and an application to set aside a disposition under s37, Matrimonial Causes Act 1973 (MCA 1973).

  • CHILD ABDUCTION: Under pressure
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    Joanne Green looks at the limited circumstances in which an order made by consent may be set aside on the basis of duress

    Family practitioners will know that there are limited circumstances where the court will set aside a consent order. In financial proceedings, it is accepted that a consent order can be set aside if at the time that the order was made there was non-disclosure of some essential matter, fraud or misrepresentation, or a supervening (Barder) event that invalidates the whole basis of the order. In both Tommey v Tommey [1983] and Livesey (formerly Jenkins) v Jenkins [1984], whether undue influence could also be a ground for setting aside a consent order was considered, but the courts found that it could not be. This area of law has now been considered further in the child abduction case of SA v FA (setting aside consent order on ground of duress) [2017], with Holman J providing useful guidance on the matter.

  • IN PRACTICE: Holding all the cards
    Written by

    Andrew Baines explores the use of power in resolving issues arising from family breakdown

    Family lawyers have a certain reticence towards talking about power when their discussions take place, either by correspondence or in court. Somehow it just doesn’t seem right that the welfare of a child should be intimately bound up with issues of power. However, wherever there is conflict about what is in the best interests of a child, where there is disagreement as to what a child’s welfare demands, that conflict is almost always resolved through the use of power. Power comes in a number of guises and it isn’t equally distributed. This article seeks to shed a little light on how power manifests itself in conflicts concerning a child’s welfare.

  • CIVIL RESTRAINT ORDERS: Beyond control?
    Written by

    Danielle Taylor sets out the circumstances in which the courts may prohibit a party from making further applications, and the limitations of such orders

    The decision in Veluppillai v Veluppillai [2015] was widely reported, both in the legal world and the wider press, gaining attention due to the litigation conduct of the husband that not only included emails (including extreme expletive language and threats against Mostyn J and his clerk), but also a prosecution for assaulting the wife and her counsel during one of the hearings.

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Personal Injury Law Journal

  • CASE REPORT: BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188

    Apportionment of liability; psychiatric injury; pre-existing illness

    This case revisits the vexed question of divisibility of psychiatric (and other) injury. It is an employment case of wide importance and application.

  • CHILDBIRTH INJURY: Liability issues
    Written by

    Rushmi Sethi examines clinical negligence claims concerning childbirth injury

    Relatively few childbirth injury cases proceed to a full trial, while most will settle. This article will review some of the main cases that have proceeded to trial and comment on the issues in relation to liability – breach of duty and causation – that often arise in obstetric negligence claims.

  • COSTS: To fix or not to fix?
    Written by

    Paul Jones considers the potential conflict between fixed costs and Part 36 offers

    The system of fixed costs, which covers a significant proportion of personal injury claims, tends to work very well with the majority of cases. However, it is on the margins, particularly where the rules abut against other non-fixed-costs rules, that friction can occur and the recent case of McKeown v Venton [2017], dealing with the interface between fixed costs and Part 36 offers, exemplifies this problem.

  • FRAUD: Dealing with the new reality

    George Davies provides an invaluable insight and his personal view on how fraud cases are currently being dealt with by the courts

    Up until a few years ago, allegations of fraud in road traffic claims were taken very seriously by the County Courts. Such trials were invariably allocated to the multi-track and heard before a circuit judge or recorder. Time slots for trials usually started at a day and a half (minimum).

  • PROLONGED DISORDERS OF CONSCIOUSNESS: Accurate assessment and investigation of clients

    Helen Gill-Thwaites and Karen Elliott advise what to expect from your expert and assessors

    Accurate assessment of a client with prolonged disorders of consciousness (PDOC), to differentiate between vegetative state (VS) and minimally conscious state (MCS), is both critical and challenging. Clarity of diagnosis is essential for litigation cases, to help determine future management, care and resource allocation. More recently, given the landmark ruling by Peter Jackson J in M v A Hospital [2017] that there is now no requirement for cases to involve the courts for the consideration of withdrawal of clinically assisted nutrition and hydration (CANH), when there is agreement between the family and the treating physician, this change only accentuates that accurate assessment is tantamount.

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Procurement and Outsourcing Journal

  • PROCEDURE: Tell me more
    Written by

    Fran Mussellwhite explores the principles behind the submission of supplementary information after the deadline for bid submissions

    A series of recent European cases have focused on the tricky issue of when a contracting authority may accept supplementary information from a bidder after the expiry of the bid submission deadline in order to clarify its bid.

  • CONFIDENTIALITY: Cards on the table

    Kerri Crossen, Jean-Anne Young and Patrick Kane examine confidentiality in Irish public procurement proceedings

    The Technology and Construction Court, one of the Senior Courts of England and Wales that regularly hears complex public procurement cases, has issued new guidance (the guidance note) on how public procurement claims should be managed both prior to the commencement of litigation and after the commencement of litigation. This article will examine its effect for Irish practitioners.

  • UK INFRASTRUCTURE: A strong and stable future?

    James Parker and Clare Eccles consider the future of infrastructure planning

    The 2010-15 Conservative-Liberal Democrat coalition government presided over what, in hindsight, could be heralded a ‘golden era’ for infrastructure planning in the UK. Helmed by Prime Minister David Cameron and Chancellor George Osborne, UK government support for the infrastructure sector seemed to be a fast rising stock. However, since Theresa May came to power in 2016, the impetus for infrastructure planning in the UK seems to have waned with the spotlight and political focus appearing to shift away from the sector. Not a great surprise given the ‘B’ word which fills most column inches. And we no longer mean ‘Boris’.

  • ENERGY: Ever ready for the future
    Written by

    Nathan Curtis, Dan Ballard and Ed Hobbs outline the key factors in relation to financing battery storage projects

    Based on our experience working on one of the first UK battery storage project financings, we look at what should be considered in projects of this type.

  • PRACTICE: Pride, prejudice and procurement
    Written by

    Chris Hoyle highlights the practice of preliminary market consultations

    It is a truth universally acknowledged, that a public-sector body in possession of a good budget must be in want of a decent supplier. How then should they overcome their prejudices in order to find a supplier who can provide them with the best value-for-money solution to meet their requirements? To test the truth of that dictum, and with thanks to Jane Austen, I’d like to focus on the search for a ‘good wife’ and specifically consider the practice of preliminary market consultations. My starting point is Reg 40 of the Public Contracts Regulations 2015 (PCR 2015).

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Property Law Journal

  • PLANNING UPDATE: The right homes in the right places
    Written by

    Georgina Reeves reviews the key consultation proposals published in September, which are aimed at increasing the supply of new homes

    The much-anticipated (and much delayed) housing white paper, Fixing our broken housing market (published in February 2017), was ultimately something of a damp squib. The Planning for the right homes in the right places: consultation proposals (the consultation), which was published on 14 September 2017, seeks to put some flesh on the bones and set out wide-ranging proposals aimed at increasing the supply of new homes. The proposals will be delivered via amendments to the National Planning Policy Framework (NPPF), a revised version of which will be published in Spring 2018, and Planning Practice Guidance (PPG).

  • CONSTRUCTION FOCUS: Can't pay or won't pay?
    Written by

    Statutory demands requiring payment of a debt cannot be used where there is a genuinely disputed debt, as John Starr explains

    It can be extremely frustrating for a sub-contractor, or anyone else for that matter, not to get paid on time. Cash flow has long been recognised as the lifeblood of the construction industry. Indeed, it was cash flow (or the lack of it) that was the catalyst for the coming into force of the payment and adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 (as amended). The idea is that interim payments fall due regularly and have to be paid on time unless prior notice is given that the amount claimed is disputed. There is then a quick, 28-day adjudication procedure to enforce payment.

  • REPAIR OR REPLACE: A costly error
    Written by

    A landlord should look at reasonableness when deciding whether to replace or repair windows in a block. Vipul Kapoor outlines a recent case

    In De Havilland Studios Ltd v Peries [2017], the Upper Tribunal (Lands Chamber) (UT) considered whether it was reasonable for a landlord to recover the cost of repairing windows rather than replacing them through service charge. In this case, the UT allowed an appeal by the landlord, who was the freehold owner of a block of flats, against the decision of the First-tier Tribunal (Property Chamber) (FTT), ruling that the landlord could not seek a service charge from two leaseholders for repairing the windows within their flat on the basis that replacing the windows was a more reasonable option than repairing them. In reaching its decision, the UT concluded that the FTT had applied the wrong test when deciding that replacement was the best option and, in doing so, disallowing the costs of repair.

  • PACT: The time is right

    Established 20 years ago, Professional Arbitration on Court Terms, or PACT, has only recently gained momentum, as Mark Shelton discusses

    PACT – Professional Arbitration on Court Terms, to give it its full title – provides an alternative procedure for the determination of lease renewals under Part II of the Landlord and Tenant Act 1954. It was established in 1997 jointly by the Law Society and the RICS, and the aim was to be able to lift lease renewals out of the court system.

  • FRI LEASES: Modern tenant requests
    Written by

    Barbara Webb considers the increasing inclusion of non-standard provisions in institutional leases, reflecting corporate policies. How should the parties to the lease respond?

    The institutional full repairing and insuring (FRI) lease is comprised of a more or less standard set of clauses. A feature of the FRI lease, and the investment market that it underpins, is a reluctance on the part of landlords to accept substantive alterations from the norm. Deviations from this rule generally arise only where there is a need to reflect either a particular position on the ground, eg a right is required to use a shared car park, or a commercial term agreed between the parties, eg a right of first refusal prior to assignment.

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Trusts and Estates Law & Tax Journal

  • EQUITABLE ACCOUNTING: Still relevant

    Daisy Brown explores how the courts will apply equitable accounting principles to co-owned trust property

    In the judgment handed down on 7 April this year in Davis v Jackson [2017], Snowden J had cause to consider in detail the principle commonly referred to as ‘equitable accounting’ between beneficiaries of trusts of land. The context was a claim by a trustee in bankruptcy for possession of a jointly-owned property and the facts were unusual, but the judgment is a welcome analysis of the more general right to an account between co-owners in a post-TLATA (Trusts of Land and Appointment of Trustees Act 1996), post-Stack v Dowden regime.

  • CHARITIES: Smoothing the way?
    Written by

    Paul Ridout and Jelena Serbic report on the Law Commission’s latest proposals for changes to charity law

    In August 2017 the Law Commission published its report Technical Issues in Charity Law, incorporating a draft Charities Bill. The Commission’s proposals form part of its charity law reform project and also pick up issues identified in Lord Hodgson’s 2012 review of the Charities Act 2006.

  • SUCCESSION PLANNING: Having your cake?

    Jennifer Emms considers the outcome of schemes used to reduce IHT on the family home and outlines best practice

    I am a fan of all things sweet, in particular, cake, whether of the sponge, fairy, or fruit variety. Autumn is a delightful time of year, not just due to the changing leaves and the start of crisp, cold days but because it heralds the beginning of my firm’s ‘bake off’. Contestants battle it out to wow their colleagues with an array of confectionary masterpieces and it is impossible to wander the corridor without appreciating the aroma of freshly baked goods: cookies; brownies; muffins… I digress. Lord Hutton once succinctly and, in my view, aptly, described the inheritance tax ‘gifts with reservation of benefit’ (or GWROB, as they are known) rules as legislation which ‘does not allow a donor to have his cake and eat it’. However, he also noted that (at least at that time) ‘there is nothing to stop him from carefully dividing up the cake, eating part and having the rest’.

  • WILLS: The perils of cutting corners
    Written by

    Robert Sheridan discusses current thinking on interpreting homemade wills

    At the time of his death, the testator, Mr Veljko Aleksic, was a very wealthy man. He had built up a property and share portfolio in the region of £2,000,000. He was well-placed to afford the modest cost of instructing a solicitor to draw up his will.

  • FIDUCIARY DUTIES: Staying virtuous
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    A recent Privy Council case indicates how the court will determine remedies and damages for breach of fiduciary duty. Joseph de Lacey explains

    On 27 March 2017 the Privy Council (PC) gave judgment in Akita Holdings Ltd v The Honourable Attorney General of The Turks and Caicos Islands [2017]. The judgment and the decisions of the lower courts provide a useful summary of the principles to be applied when determining:

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