Sat07222017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • DATA PROTECTION: Change the subject
    Written by

    In the first of a two-part article, Faranak Ghajavand provides a litigator’s guide to the benefits of subject access requests

    Section 7 of the Data Protection Act 1998 (DPA) establishes the right of individuals to make a subject access request (SAR). Individuals can seek access to personal information processed by or on behalf of data controllers and have that – and certain other information relating to the personal data – communicated to them, subject to specific exemptions set out in the DPA.

  • JURISDICTION: Torpedo tactics

    Andrew Hutcheon and Sam Prentki investigate the impact of Brexit and recent case law on the ‘Italian Torpedo’

    Prior to the recasting of the Brussels I Regulation (Council Regulation (EC) 44/2001), readers will be familiar with the litigation tactic known as the ‘Italian Torpedo’. The phrase aptly describes the strategy by which a recalcitrant defendant, who had agreed (via an exclusive jurisdiction clause) to determine disputes in the courts of a particular member state, would subvert the agreed choice of jurisdiction clause by commencing proceedings in a court of a different EU member state. This was possible because of the lis pendens rules (from ‘lis alibi pendens’ – suit pending elsewhere) that concern cases in more than one EU member state involving the same cause of action. The EU’s lis pendens rules were found in Art 27 of the Brussels I Regulation and are now contained in Art 29 of the Brussels I Regulation (Recast): Council Regulation (EU) 1215/2012, which came into force in January 2015 (the Recast Regulation). Where the courts of a member state were first seised, any other member state would have to stay subsequent proceedings before them pending resolution in the first-seised courts. This was so under the Brussels I Regulation even if the governing agreement between the parties contained an exclusive jurisdiction clause in favour of the second-seised state (the ‘first-in-time’ rule).

  • INJUNCTIVE RELIEF: Take no notice
    Written by

    Richard Walford looks at the future of notification orders

    The dealings between Mr Mark Holyoake and the Candy brothers have caused a welter of accusation and counter-accusation: as might be expected in hard-fought and high-value litigation, there have been numerous interlocutory applications, one of which spawned an apparently new form of injunction, the notification order. So what is a notification order, and does it have utility in other commercial cases?

  • CONTRACT: What's the point?

    Michael Davar analyses the recent case of Astor and the principle of futility in contractual construction

    In his judgment in Astor Management AG v Atalaya Mining plc [2017], Leggatt J stated that:

  • NUISANCE: Neighbourhood watch
    Written by

    David Schmitz considers how to approach nuisance cases where the character of an area has changed

    In Coventry v Lawrence [2014], the Supreme Court addressed a number of fundamental questions relating to the law of nuisance. One of these questions was the following:

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Employment Law Journal

  • HOLIDAY PAY: Will it never stop?
    Written by

    Kate Gardner and Sarah Driscoll report on a recent case on holiday pay which could have major implications for gig economy businesses

    As employers and their advisers will be aware, there has been a series of far-reaching legal developments on workers’ and employees’ rights to holiday pay in the last few years. The pace of change shows no sign of slowing, following the advocate general’s (AG’s) recent opinion in King v The Sash Window Workshop Ltd [2017] that the right to paid annual leave carries over indefinitely until a worker has the opportunity to exercise it.

  • TERRITORIAL JURISDICTION: Location, location, location
    Written by

    Emma Naughton examines two recent cases on the tricky issue of which country’s courts have jurisdiction to hear an international worker’s employment claims

    As the workforce continues to become more mobile and global, it is not always clear which country’s courts or tribunals should hear an employee’s claims. This article looks at the possible impact of two recent cases dealing with the issue of territorial jurisdiction. The first, Green v SIG Trading Ltd [2017], was an Employment Appeal Tribunal (EAT) decision. The second, Nogueira v Crewlink Ltd; Moreno Osacar v Ryanair [2017], was the opinion of the Advocate General (AG) on a case concerning the aviation sector. This sector has been alive to the problems caused by having a mobile workforce for longer than other sectors but still comes across practical issues.

  • STRIKE PAY: All in a day's work
    Written by

    Phil Allen and Louise Singh look at the implications of a recent Supreme Court decision on how much pay to deduct when employees go on strike for a day

    If employees are on strike, an employer does not have to pay them for the periods when they are not working. In the recent case of Hartley v King Edward VI College [2017], the Supreme Court considered how much pay an employer was entitled to deduct when tutors at a sixth form college took part in a day of lawful strike action.

  • CONFIDENTIAL INFORMATION: Lessons from a failed injunction

    A recent case contains important guidance on drafting restrictive covenants, applying for springboard injunctions, handing over emails and complying with procedural rules, explain Rebecca McGuirk and Anna Scott

    In Capita plc v Darch [2017], Capita applied for an interim injunction against various ex-employees and a competitor company with which they are associated, Archus Ltd. The case contains a useful discussion of both restrictive covenants and interim injunctions. Interestingly, it also discusses whether an employer may claim emails that employees send from its email account are its property (regardless of whether they are about business matters).

  • SHARED PARENTAL LEAVE: Dads paid less for bringing up a baby – is direct discrimination the answer?
    Written by

    Anthony Fincham and Val Dougan analyse two recent cases challenging employers’ failure to enhance shared parental pay rates for fathers

    We have come a long way since maternity leave was first introduced by the Employment Protection Act 1975, with women now receiving 52 weeks’ leave and 39 weeks’ statutory maternity pay. But have we come far enough when it comes to dads?

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Family Law Journal

  • INTERNATIONAL: A jurisdictional jigsaw
    Written by

    Alice Couriel considers the long-running proceedings in three jurisdictions in Lachaux v Lachaux and the issues addressed by the court

    The judgment in Lachaux v Lachaux [2017] addressed a number of interesting issues, including the status and recognition of a Dubai divorce and the jurisdictional basis for an application under the Children Act 1989 (ChA 1989).

  • DISCLOSURE: Coming clean

    Emma Doughty explores the practical challenges when dealing with the ongoing duty to provide full and frank disclosure in financial proceedings

    The decision in Goddard-Watts v Goddard-Watts [2016] illustrates the courts’ approach to a rehearing where a previous final order was set aside for material non-disclosure. This article will consider the lessons that can be learned from Goddard-Watts, and suggest ways in which practitioners can seek to prevent applications to set aside a financial order.

  • EMBRYOLOGY: Dangerous ground
    Written by

    In the first of a two-part analysis, Seamus Burns examines the potential for exploitation, together with ethical issues, in relation to egg sharing within IVF treatment

    A recent press investigation (Daily Mail, May 2017) alleged that several licensed fertility clinics were exploiting women desperate to have their own children by in vitro fertilisation (IVF) by asking them to donate some of their eggs in exchange for free, or reduced price, treatment, or even for cash, and further that some fertility clinics were allegedly giving women ‘false hope by exaggerating their success rates with frozen eggs’. This flags up the reality that 60% of infertility treatments are privately funded, that clinics that charge patients directly for fertility treatments are businesses, and the necessity of both rigorous control and regulation of the infertility business. This situation should also serve to concentrate the minds of government, the NHS and clinical commissioning groups (CCGs) to address the controversial and iniquitous shortcomings of the current NHS IVF postcode lottery that effectively drives a lot of patients into the private sector, or to seek IVF in another (less regulated and safe) country, or indeed, for many, to the personally devastating option of remaining childless.

  • SHORT MARRIAGE: The lottery of needs
    Written by

    Moji Sobowale looks at the approach to short marriage cases, in particular as to needs in the context of standard of living

    Although marriage is a contract, it is not a purely financial contract with remedies that can be easily quantified when breached. The family courts have a wide discretion when considering the division of assets upon marital breakdown, to be exercised by the careful application of the legislated factors embodied at s25, Matrimonial Causes Act 1973 (MCA 1973). As set out in White v White [2000], the court’s objective must be to achieve a fair outcome, but the question is what is deemed ‘fair’?

  • INSOLVENCY: Beyond reach
    Written by

    Ellen Walker sets out the principles applied where a party seeks to protect their interest against a trustee in bankruptcy using equitable principles

    The equity of exoneration arises where property is jointly owned by parties A and B, and B incurs a debt that is charged against the whole property. In such cases A is or may be entitled to a charge over B’s share of the property to the extent that B’s indebtedness can be paid out of A’s share. In practice this means, in the event of a sale, that the secured creditor will be paid out of B’s share in the first instance and will only have recourse to A’s share once B’s share has been exhausted. This is likely to arise where:

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Personal Injury Law Journal

  • EVIDENTIAL ISSUES: Asbestos-related lung cancer claims
    Written by

    Rushmi Sethi considers contributory negligence in lung cancer claims in mostly asbestos-exposed smokers

    The inhalation of asbestos dust and fibres can lead to a number of diseases. The diseases most commonly associated with asbestos exposure are asbestosis (scarring of the tissue of the lungs resulting from the inhalation of asbestos dust and fibres), lung cancer (a malignant cancer of the lung tissue), and mesothelioma (a malignant cancer of the lining of the internal organs). There have been some recent decisions in the UK courts dealing with contributory negligence in the context of asbestos-related lung cancer claims.

  • CASE REPORT: Prescott v Trustees of the Pencarrow 2012 Maintenance Fund (2017) unreported, Plymouth County Court, District Judge Richards, 12 June

    Fixed costs regime; road traffic accident; non-road user; pre-action protocols; public liability claims, simple fast-track claims

    This decision provides important clarification as to the scope of the fixed costs regime (FCR) at CPR Part 45.

  • COSTS: The Four Hundred Club
    Written by

    Paul Jones reviews if a defendant can be reimbursed for payments which are now unnecessary after a change in the RTA protocol

    During the Peloponnesian War between Athens and Sparta, the democratic government of Athens was overthrown in 411 BC by a coup from a group known as The Four Hundred. Nearly 2,500 years later, a group known as the ‘400 Club’ made an appearance at the Court of Appeal in relation to the somewhat less dramatic issue of fixed recoverable costs in road traffic accidents.

  • ILLEGALITY: Does Patel v Mirza apply in tort?

    James Goudkamp explores whether the Supreme Court’s policy-based approach to the illegality doctrine will be followed in tort cases

    The Supreme Court recently handed down judgment in the appeal in Patel v Mirza [2016]. In this landmark decision, the Supreme Court put to rest a long-running debate that had raged between justices of the Supreme Court regarding the proper approach to the law of illegality. Several justices, spearheaded by Lord Sumption, had preferred a rule-based analysis, with the reliance test constituting the relevant rule. According to the reliance test, the claimant will fail in his or her action if he or she needs to rely on his or her own wrongdoing in order to establish the claim. The rival approach, championed by Lord Toulson, entails a discretionary analysis. The discretion-based test involves examining all of the factors that weigh in favour and against permitting recovery and then reaching a conclusion as to the proper outcome in the light of those considerations. Salient factors might include the need to prevent wrongful profiting, the concern to deter offending, the imperative of maintaining both the dignity of the courts and the coherence of the legal system, any relevant statutory policy, and the importance of guarding against disproportionate reactions to what might be relatively insignificant illegality. In Patel, the Supreme Court rejected, by a majority, the rule-based approach in favour of the policy analysis.

  • MOTOR INSURANCE FRAUD: The 'trial mindset'

    Brian McCluggage argues for a greater focus on trial preparation in motor fraud cases

    This short article developed out of a presentation at the 2017 Personal Injury Bar Association conference at Oxford. There are no esoteric questions of law raised within. The focus is rather upon evidential and tactical techniques for getting a case best prepared for trial through ensuring that the litigator is ‘trial-minded’. The context of the article is motor cases in which fraud is alleged. Motor fraud cases comprised a substantial part of my practice over a period of about 15 years to 2013. Over the 200 or so trials conducted in this line of work, it was extraordinary to see the same mistakes and poor practices applied time and time again. While my experience is rooted in acting for insurers, much of the analysis below is of as much if not more relevance to claimant representatives.

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Procurement and Outsourcing Journal

  • MANAGEMENT: A 'state o' chassis'
    Written by

    Chris Hoyle investigates how to manage procurement crises

    The history of the world is littered with failures; some heroic like Dunkirk and others inglorious like Chernobyl. Procurement is no exception, even if it’s not so epic. The phrase ‘Crisis? What crisis?’ helped bring down the Labour government in 1979. Fashioned by a Sun journalist – and not Jim Callaghan, the Prime Minister, as is commonly thought – the headline caught the popular impression of a government unaware of a very serious state of affairs which had sneaked up on it. The phrase though emphasises the high penalty that can be paid by the unwary procurer. The message I’d like to deliver is a simple one and it’s derived from this phrase. Procurement crises happen – people and systems can fail – but informed people can prevent them, and when these crises occur they can rescue the situation.

  • HOUSING: Where the heart is
    Written by

    Peter Kershaw highlights the need for investment planning to address the housing requirements of the disabled and elderly

    Winston Churchill made a powerful observation in October 1943 about the impact of planning. He stated with absolute conviction that ‘we shape our buildings, and afterwards our buildings shape us’.

  • TENDERING: Pay your money, take your choice
    Written by

    Emily Heard reviews the legal considerations governing price/quality evaluations

    In the current economic climate, establishing a price/quality evaluation model that delivers the right level of quality at the best possible price is important. There is not a single ‘best practice’ model. In this article I look at a variety of different models that exist, and provide some insight into potential pitfalls if using particular models.

  • CONTRACTING: Is it a bird, is it a plane, no...
    Written by

    Richard Hough outlines recent judicial guidance on the clarification of tenders

    Clarification of tender submissions can be a minefield for contracting authorities. In addition, the growing trend for tender submissions being submitted electronically through a portal can lead to additional problems, such as tender documents not uploading correctly or incorrect documents being uploaded. Even where the tender submission is complete, answers may assume a level of knowledge on the part of the reader that the contracting authority may not possess, eg because the answer is very technical.

  • COMPLIANCE: Corruption et corruption
    Written by

    Thomas Webb and Georges-Louis Harang weigh up Anglo/French anti-bribery legislation

    The UK Bribery Act 2010 came into force on 1 July 2011, creating for businesses operating in the UK the most stringent and far-reaching anti-bribery legal regime in the world. In particular, it imposed strict criminal liability on corporates that failed to prevent bribery. On the other hand, UK companies may be able to avoid prosecution by being invited to agree a ‘deferred prosecution agreement’ (DPA) with the Serious Fraud Office (SFO). A DPA requires civil court approval which will only be provided if the company can demonstrate that it has, among other things, provided the SFO with full co-operation.

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Property Law Journal

  • CONSTRUCTION FOCUS: Politics of the judiciary
    Written by

    John Starr focuses on three cases that highlight pitfalls for the construction law practitioner

    In this article I examine three recent cases of interest: Dawnus Construction Holdings Ltd v Marsh Life Ltd [2017], RCS Contractors Ltd v Conway [2017] and Thakkar v Patel [2017].

  • POLLUTION: A lot of hot air?
    Written by

    Simon Tilling and Sarah Raby review the new air quality plan

    Air quality is one of the major environmental issues facing the modern world. Combustion of fuels in, for example, power generation, industrial processes, domestic heating and road vehicles causes the release of harmful air pollutants such as nitrogen dioxide (NO2). Development activity therefore tends to go hand in hand with increases in emissions and reductions in air quality.

  • LEASES: Practise what you preach
    Written by

    A ‘licence’ can turn out to be a lease when put to judicial scrutiny. Emma Pinkerton and Sarah Moore explain how to make sure legal documentation delivers

    Clients often ask their solicitors to put a licence in place, thinking that a licence will be easier and quicker to agree than a lease and that a licence must also be cheaper.

  • PLANNING UPDATE: Two become one
    Written by

    Katie Scuoler examines the current planning position on amalgamation of units

    Historically whether planning permission was required for the amalgamation of units has been a grey area for planning lawyers. However, it was a question which was seldom asked. In recent years there has been a strong trend in the central London residential market for the creation of substantial residential properties through the reconversion of previously subdivided houses, the amalgamation of purpose-built flats or adjoining houses, and lateral amalgamation of units. As a consequence, there has been increased focus on decisions regarding amalgamation. This article traces the recent evolution of decision-making regarding amalgamation.

  • TENURE: Flying high
    Written by

    Julian Bass and Sarah Quy provide some practical solutions to flying freeholds

    A flying freehold is a quirk of English land law. Here we discuss the practical problems it can lead to, and suggest some possible solutions and damage limitation measures.

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Trusts and Estates Law & Tax Journal

  • CHARITY LAW: What is charitable?
    Written by

    Simrun Garcha reports on the charitable status and disposal of assets of a now defunct religious sect

    The High Court’s recent decision in Buckley v Barlow [2016] explored whether the assets of a religious organisation that had ceased to function by the middle of the 20th century should be applied in accordance with a cy-pres scheme for general charitable purposes or be treated as bona vacantia.

  • TAX: Testing the waters
    Written by

    Steve Appleton and Joshua Eaton outline HMRC’s new approach to trusts and the taxation of index-linked loans

    Before the introduction of the transferable nil rate band (TNRB) on 9 October 2007, the nil rate band discretionary trust (NRBDT) was a common tool used by solicitors to ensure that spouses took full advantage of both of their nil rate bands (NRB). It worked by the first spouse to die making a gift (the gift) of their available NRB allowance to the trustees of a discretionary trust which included the survivor amongst the class of discretionary beneficiaries. The trust assets would then usually pass to the intended beneficiaries on the death of the survivor. The survivor would still have their own NRB available to set against their free estate. As such, both NRBs were utilised.

  • WILLS: Flexible interpretation
    Written by

    Fiona Campbell-White and Henrietta Watson discuss the current approach of the courts to the construction and rectification of wills

    The recent case of Slattery & Jagger v Jagger [2015] and subsequent cases reveals the court’s current approach to the construction and rectification of wills.

  • TRUSTS: 30 years’ flaw

    The Cayman Court has provided clarity over what happens in the event of absent or defective protector consent. Robert Lindley explains

    Any trustee should have cause for concern upon realising that in the exercise of its powers and duties the appropriate consents had not been obtained, or were defective, thus jeopardising the validity of the trust’s administration, particularly if the absent or defective consent has remained undetected for a significant period of time. As a cautionary tale for trustees and practitioners such a set of circumstances were considered by the Grand Court of the Cayman Islands (the ‘Cayman Court’) in the case of the Y Trust No 1 (2016) which illustrates various ways in which the problem of absent or defective protector consent may be overcome, and the factors relevant to obtaining the Cayman Court’s approval to the appointment of private trust companies in place of individual trustees.

  • EQUITABLE TRACING: Overdrawn accounts and backward tracing

    Mark Pawlowski considers the case for accepting backwards tracing as part of English law

    In Bishopsgate Investment Management Ltd (in liquidation) v Homan [1994], the Court of Appeal held that the equitable remedy of tracing did not extend to tracing through an overdrawn bank account, whether it was already overdrawn at the time the relevant money was paid into it or which was then in credit but subsequently became overdrawn by subsequent drawings.

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