Sat06252016

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • ENFORCEMENT: An island nation
    Written by

    Nicholas Greenwood and Paul Mesquitta examine some of the potential commercial litigation consequences of a ‘Brexit’

    With the referendum for Britain potentially leaving the EU (Brexit) fast approaching on 23 June 2016, a ‘leave’ vote could have far-reaching commercial litigation consequences for England and Wales.

  • REMEDIES: A helicopter flight from Coventry
    Written by

    Andrew Skelly reviews the jurisdiction to award damages in lieu of an injunction

    When the court has jurisdiction to grant an injunction, it can award damages in lieu of an injunction. Guidance on the exercise of this discretion begins with the ‘good working rule’ provided by AL Smith LJ in Shelfer v City of London Electric Lighting Co [1895]; namely, damages in lieu may be awarded if

  • INJUNCTIONS: The road to East Anglia
    Written by

    Andrew Beck outlines Norwich Pharmacal and explains the two tactical options recently highlighted which can be of both assistance and concern to those within data-sensitive industries

    The Civil Procedure Rules (CPR) provide a process by which a disclosure order can be sought, pre-action, against a person who is likely to be party to subsequent court proceedings. A Norwich Pharmacal disclosure order (so called following the leading case of Norwich Pharmacal Co v Customs and Excise Commissioners [1973]), however, can be granted against a person who will not be party to subsequent proceedings, so as to identify another person (for example a wrongdoer or a potential beneficiary) or so as to identify the nature of a wrongdoing, who or which will be the subject of subsequent proceedings. A Norwich Pharmacal order can also require the disclosure of information needed to seek redress, as opposed to merely the disclosure of documents as per CPR disclosure provisions.

  • CONTRACT: Pride, prejudice and aggregation

    David Niven and Elisabeth Mason explore a recent judgment on aggregation

    The Court of Appeal has ruled on the proper construction of the aggregation clause in the Solicitors’ Regulation Authority’s (SRA’s) ‘Minimum Terms and Conditions of Professional Indemnity Insurance’ (the MTC).

  • DISCLOSURE: Show and tell
    Written by

    Jack Rabinowicz, Rod Cowper and Simon Boschat consider ex parte continuing disclosure obligations

    It is the standard practice in legal proceedings that both parties to a dispute should be heard before an issue is decided by a court.

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Employment Law Journal

  • POST-TERMINATION RESTRICTIONS: Winning damages in One Step

    A recent Court of Appeal decision may make it easier for employers to obtain Wrotham Park damages, explains Bob Fahy

    The remedies available where an ex-employee has unlawfully used or disclosed a business’s confidential information or breached post-termination restrictive covenants include damages for breach of contract, injunctions and an account of profits.

  • DATA PROTECTION: Show and tell
    Written by

    Charles Wynn-Evans reviews the use of subject access requests in light of a recent High Court decision

    Under s7 of the Data Protection Act 1998 (DPA), individuals are entitled to ask their current or former employer to provide them with the ‘personal data’ which it holds on them. This is called a subject access request (SAR). To paraphrase, under the SAR regime, the employer (as a ‘data controller’ for the purposes of the DPA) can require a maximum fee of £10 for compliance with the request and has 40 days to provide the information. The employer can require the individual to provide evidence of their identity if it ‘reasonably requires further information’ on this, and is entitled to require clarification on the scope of the request. Time runs from receipt of that evidence or of the requisite fee (if required), whichever is later.

  • INDUSTRIAL ACTION: Government may challenge strike's validity
    Written by

    Paul McFarlane and Louise Singh comment on the education secretary’s recent attempt to have proposed industrial action ruled unlawful

    In The Secretary of State for Education v National Union of Teachers [2016], the High Court recently considered two issues:

  • TRADE UNION ACT: Striking the right balance?
    Written by

    Major changes to the UK’s strike laws could see employers and unions using a range of new tactics in disputes, reports Christopher Mordue

    The Trade Union Act, which received Royal Assent on 4 May, makes the most significant changes to the UK’s strike laws since the Thatcher and Major governments over 20 years ago. The Act seeks to fulfil the Conservative manifesto pledge to:

  • EU REFERENDUM: Should we stay or should we go?
    Written by

    Richard Kenyon and Olivia Baxendale consider how domestic employment law might change if the UK votes to leave the EU

    On 23 June 2016, we will have to answer the question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ After weeks of escalating rhetoric, it will be the people who have the last word, not the politicians.

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Family Law Journal

  • INTERNATIONAL: Global reach
    Written by

    Sonny Patel sets out a reminder of the financial remedies available in England and Wales following an overseas divorce

    Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) gives the courts in England and Wales the power to grant financial relief after a marriage has been dissolved (or annulled) in a foreign jurisdiction. There are equivalent provisions regarding civil partnership at Sch 7 to the Civil Partnership Act 2004 (CPA 2004). Part III, MFPA 1984 empowers the courts in this jurisdiction to alleviate adverse consequences where no financial provision is made by the foreign court, or where the provision made is inadequate.

  • PRESERVATION OF ASSETS: Preventative measures
    Written by

    Deborah Levy and Ciara Moore consider the disclosure requirements on an application to preserve assets, and the high bar for obtaining such an order

    In Kanev-Lipinski v Aharon Lipinski [2016] the court was concerned with the correct approach to an application to continue a freezing and asset preservation order that had been obtained by the claimant on a without notice application.

  • RELOCATION: Full picture
    Written by

    Jennifer Moore examines the approach of the courts on an application to relocate a child, and the factors that will be taken into account

    Case law sets out the principles that the court must now apply in determining both internal and external relocation cases, and the Court of Appeal was clear in Re C (Internal Relocation) [2015] that there is no distinction between an application to relocate a child within the jurisdiction, and an application to relocate a child to another country. This article will summarise the principles to be applied by the courts, the questions the court will ask in undertaking a welfare enquiry, and what the most important question for the court is likely to be.

  • IMMIGRATION: The way forward?

    In the conclusion to a two-part consideration of children and immigration law, Katherine Illsley and Agata Patyna look at how other jurisdictions tackle this issue, and how UK authorities might improve the procedure

    The first part of this article considered the legal system in place for unaccompanied children seeking asylum, the problems facing local authorities and the children going through the asylum and care process, and whether the system is fit for purpose. There is little doubt that the number of unaccompanied asylum-seeking children (UASCs) is placing a significant financial and administrative burden on a number of local authorities; the question is whether the best interests of children are being approached as a primary/paramount consideration, or as an inconvenience?

  • HABITUAL RESIDENCE: Changing places
    Written by

    Rebecca Harling and Ciara Moore analyse the Supreme Court decision in Re B and the circumstances in which a child may change, or retain, their habitual residence

    Issues regarding children within same-sex cohabiting families have seen a newly emerging genre of case law and an evolving legal definition of what it means to be a modern family. In Re B (A Child) [2016] the Supreme Court was concerned with the removal of a child, B, to Pakistan by her sole legal and biological parent, without the prior knowledge, or consent, of the child’s other (non-legal and non-biological) parent, following the breakdown of their same-sex relationship. This case provides welcome analysis and clarification of the modern international law concept of habitual residence, how this tallies with national law (namely when pre-existing habitual residence is lost and new habitual residence gained), and whether a child can ever be in legal limbo without a habitual residence. It also touches on the parens patriae jurisdiction. In Re B, the Supreme Court had to inter alia determine the point at which B had lost her habitual residence, in light of the principles previously determined by the Court of Justice of the European Union (CJEU) and the domestic courts.

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Personal Injury Law Journal

  • CASE REPORT: Gentry v Lee Miller [2016] EWCA Civ 141

    Insurers; vehicle loss; allegations of fraud; acknowledgement of service

    Lord Justice Vos said in Gentry v Lee Miller [2016] (para 34):

  • BOOK REVIEW: All together?
    Written by

    Jonathan Dingle assesses Employer’s Liability Claims (2016 edition)

    In a former professional life, when serving in the Royal Navy, the author quickly learned that Royal Marines were among the finest individuals into whose hands you could trust your life. A privilege to command and lead, they were the right people to have at your side on an intoxicated night in Union Street, Plymouth.

  • MATERIAL CONTRIBUTION: Causes for concern
    Written by

    Julian Matthews highlights a case that demonstrates the courts’ approach to contribution to injury

    The Judicial Board of the Privy Council’s contribution to the common law jurisprudence on causation of damage in the material contribution case Williams v The Bermuda Hospitals Board [2016] provides a welcome clarification of the law in this complex area. The recent decision in John v Central Manchester NHS Trust [2016] is a very helpful illustration of the application of the principles confirmed by that decision.

  • COSTS: Trials and tribulations

    Paul Jones considers the costs implications of a dispute that was settled on the day of the trial, before the trial had taken place

    One of the key features of the law of legal costs is that there are, in fact, very few actual core legal principles that define this area of law. It is, in theory, incredibly simple – the loser of litigation pays the winner but only to the extent that this is reasonable and, from this, the rest of costs law flows. What this means in practice, however, is that disputes between parties over legal costs can often be distilled down to arguments over a nuanced interpretation of a particular application of these core principles and it was precisely this type of argument that faced the court in the recent case of Bruno Manuel Dos Santos Mendes v Hochtief (UK) Construction [2016].

  • FINANCIAL AWARDS: Tread carefully
    Written by

    Alison Taylor explains methods for avoiding professional negligence claims and maximising quantum

    A growth area of my work as a financial adviser is acting as an expert witness in professional negligence cases. Under-settling of claims, with solicitors advising clients to accept smaller sums for the sake of expediency, has been recognised for some time. Under-assessment of the value of a claim is equally an obstacle to justice for clients.

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Procurement and Outsourcing Journal

  • PLANNING: Clean living
    Written by

    John Bosworth summarises changes to permitted developments and a further blow to launderette users

    From 6 April 2016, amendments are made to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (the Amending Order) introduces new permitted development (PD) rights and puts the office-to-residential right on a permanent footing.

  • EMPLOYMENT: TUPE or not TUPE?
    Written by

    John Houlden and Adrian Martin consider the handling of TUPE in procurement documents

    A bid team treads a delicate line when it seeks to present a confident and apparently certain solution to a purchaser’s needs if that solution will involve changes for employees. A bidder should therefore have regard to the potential employment law ramifications of what it says in its bid document.

  • INFRASTRUCTURE: The best-laid plans
    Written by

    Paul Smith examines the National Infrastructure Delivery Plan

    On 23 March 2016 the government published a new National Infrastructure Delivery Plan (the NIDP) outlining the government’s infrastructure priorities for the next five years and beyond. Improving visibility for the investor community and the supply chain, the plan details the government’s infrastructure plans for £483bn worth of planned investment in all sectors across the UK, which for the first time also includes the delivery of social infrastructure. Around £300bn of the intended investment has been allocated to the delivery of infrastructure over the next five years.

  • TECHNOLOGY: Inscrutable solutions
    Written by

    Edward Bennett assesses the value of SIAM and multi-sourcing in 2016

    In an economic climate where chief technology officers (CTOs) are increasingly required to deliver ever more for less, the service integration and management (SIAM) tower model was much-discussed in 2015. The SIAM tower model generates significant press and controversy, belying the fact that it is, in reality, a variant on a more familiar multi-sourcing model, evolved to recognise and provide for the reality that many businesses do not have the experience and capability to manage multiple suppliers.

  • INJUNCTIONS: Holding the balance

    David Sawtell reviews recent guidance on the American Cyanamid test

    Applications for interim injunctions are frequently made urgently, with limited opportunity for a careful consideration of the case law. If a respondent is given informal notice of an application, their legal team will likewise need to move rapidly. Practitioners, therefore, need to be alert to developments in the law ahead of the telephone call from their client.

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Property Law Journal

  • LAND REGISTRY: A question of trust

    In light of the recent consultation, Harriet Bastiani gives the pros and cons of the proposed privatisation of the Land Registry

    In what many observers see as a controversial move, at the end of March 2016 the government announced a consultation on plans to move the operations of the Land Registry into the private sector from 2017. This forms part of the government’s wider aim of achieving £5bn of additional corporate and financial asset sales by March 2020, with the sale of the Land Registry clearly intended to provide an easy capital receipt for the government in its bid to reduce the deficit.

  • CONSTRUCTION FOCUS: Time for an exception?
    Written by

    John Starr investigates the use of mediation in construction disputes and debates its effect on individual access to justice

    Mediation has evolved, over the decades since its arrival from the US in the 1970s, into a popular means of dispute resolution in the UK construction industry, particularly in low-value disputes. Its ‘popularity’ has been ‘encouraged’ by the Technology and Construction Court (TCC) through the use of cost sanctions.

  • COSTS: The price of ambiguity
    Written by

    Littlestone v Macleish [2016] sheds light on whether landlords’ costs on dilapidation claims are recoverable on a standard or indemnity basis. Rosalind Cullis explains

    The Court of Appeal decision in Littlestone v Macleish [2016] has attracted legal commentary, primarily because of the court’s findings regarding offers made pursuant to Part 36 of the Civil Procedure Rules (CPR). Indeed, the majority of the judgment focuses on this issue. Of particular interest to property practitioners, however, will be the court’s interpretation of a clause frequently found in leases of commercial premises, which sets out the circumstances in which a landlord may recover its costs from a tenant. While only six paragraphs of the 43-paragraph judgment are concerned with this subject, such brevity should not detract from the significance of the issue at hand.

  • TITLE GUARANTEE: Worth its weight

    Roger Cohen summarises a series of cases which demonstrate the issues that can arise when a title is registered by fraud or error

    The elevator pitch for the system of title by registration in England and Wales is compelling. Title comes with registration. The register is conclusive, or almost conclusive. If the register is wrong and an innocent person is prejudiced, the Land Registry will indemnify the loss. Simple and what could go wrong? The devil is in the detail, compounded by the history and the propensity of a minority to commit fraud. Three examples illustrate the problems that can arise: Malory Enterprises Ltd v Cheshire Homes (UK) Ltd [2002], Gold Harp Properties Ltd v MacLeod [2014] and Swift 1st Ltd v The Chief Land Registrar [2015].

  • FRAUD: When gross negligence is not enough
    Written by

    In the first of two articles highlighting the key points of a case involving deliberate deceit by a surveyor, Jonathan Brooks explores the principles involved

    Following the ‘boom and bust’ of the mid-noughties, the courts have seen many instances of over-inflated mortgage valuations giving rise to findings of professional negligence against surveyors. Pressure from sheer volume of instructions, too casual an approach to obtaining and critically assessing comparables, combined with over-reliance on, and misplaced optimism in, the continuance of a rising market, meant that some surveyors fell below the standard of care required of them and overvalued properties, often causing borrowers and mortgage lenders to suffer loss.

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Trusts and Estates Law & Tax Journal

  • EXECUTORS: A costly sibling clash

    Wilby v Rigby [2015] has useful practitioner points on applications for the removal of executors. Nicholas Pointon reports

    In Wilby v Rigby [2015] the court exercised its jurisdiction under s50 of the Administration of Estates Act 1985 to remove both executors of an estate in favour of an independent administrator. The protagonists were brother and sister. By their late mother’s will each were appointed executor and were to share equally in her estate. Judgment arrived almost four years after the death of their mother in November 2011. No grant of probate had yet issued in favour of either party, not least because the claimant had issued a caveat against the will in May 2012.

  • TRUSTS: An extraordinary jurisdiction
    Written by

    Georgia Bedworth analyses a case which considers whether the English court can vary a foreign trust under the Variation of Trusts Act 1958

    Private client lawyers have considerable experience in dealing with matters which have a substantial international aspect. With increasing globalisation and migration, a client’s wealth may be held in a number of settlements, some of which are governed by English law and are English resident, some of which may be offshore holding foreign property but governed by English law, some of which started life as English settlements but have migrated offshore, and some which are governed by foreign law. Even though these settlements may be governed by different laws, there is often some interconnection, be that by reason of the property held in the settlement or the beneficiaries.

  • PROBATE CLAIMS: A hard case to make
    Written by

    Bromley v Breslin [2015] exposes the possible cost consequences of an application under CPR 57.7(5) to challenge the validity of a will. Charles Holbech explains

    There have been two recent reported cases on CPR 57.7(5) which applies in probate claims where the validity of a will is called into question. That rule provides that:

  • CONSTRUCTIVE TRUST CLAIMS: Excuses, detriment and imputation
    Written by

    Don McCue examines the lessons from Curran v Collins [2015]

    Claims on constructive trust principles to a share of the beneficial interest in a property in another’s sole name, or a larger than half share in a property in joint names, are usually (but not always) brought by ex-cohabitees.

  • ILLEGALITY AND TRUSTS : Public policy or rule of law?

    Gareth Keillor and Rosanna Pinker consider the lack of clarification from the Supreme Court on the illegality defence

    The application of the illegality defence, otherwise known as the ex turpi causa non oritur action principle, has long been a means of preventing claimants from relying on their illegal actions to initiate a claim against another party. In essence, the defence relies upon an argument that a claim should not be allowed to succeed where the claimant has been involved in illegal conduct that is connected to the claim. In the context of trusts law, shareholder disputes and fraud, the defence of illegality has been repeatedly raised by defendants and dealt with by the court, though not always consistently.

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