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The Commercial Litigation Journal

  • DATA PROTECTION: No access
    Written by

    Faranak Ghajavand continues her litigator’s guide to subject access requests

    Part 1: 'Change the subject' (CLJ73, May/June 2017)

    In this second instalment, I continue my assessment of subject access requests (SARs) in commercial litigation, and turn now to the limits of SARs in civil litigation.

  • CHOICE OF LAW: A fair exchange

    Chris Webber and Michael Davar weigh up the impact of the Rome Convention in financial derivatives claims

    In the sphere of financial derivatives, claims in the English courts by foreign municipalities and other public bodies subject to special legislation have, since 2008, been numerous. In particular, there have been a number of disputes over whether foreign ‘mandatory’ laws apply to derivative contracts by operation of Art 3(3) of the Rome Convention despite the parties’ express choice of English law.

  • BUDGETS: The cost of everything

    Francesca Ruddy analyses a recent case examining the relationship between costs budgeting and costs awarded

    A number of costs assessments had been put on hold pending the outcome of the appeal in Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017], which was referred directly to the Court of Appeal from the Senior Courts Costs Office on a ‘leapfrog’ basis.

  • BREXIT: Climb every mountain

    In part one of a two-part consideration, Tom Snelling and Lauma Skruzmane survey the perilous path of Brexit

    Now that the Brexit negotiations have finally begun and the principal negotiators have exchanged mountaineering-themed gifts, the steepness of the climb ahead is dauntingly apparent. The best path to tread will not always be clear. In fact, for both sides, the negotiations will be labyrinthine. As the initial discussions have already demonstrated, media and public scrutiny of the negotiators’ progress is unrelenting (with some quick to look for evidence of concession and the whiff of a U-turn). Securing agreement on even (comparatively) straightforward issues will be challenging, but more so when complex legal points are engaged. Against this backdrop, a successful resolution to questions about the future framework for jurisdiction and the recognition and enforcement of judgments will be far from easy; however, securing such a resolution is vital to safeguard individuals’ rights and the success of any UK-EU trading relations post-Brexit.

  • PRIVILEGE: Ever-decreasing circles
    Written by

    Gwendoline Davies, Andrew Northage and Robert Starr assess the impact of a recent ruling on legal professional privilege

    A recent High Court ruling is the latest in a line of cases to limit the scope and availability of legal professional privilege. While Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd [2017] (SFO) was a criminal case, it applies equally to civil and regulatory investigations, and will be of significant interest because of its important implications for legal professional privilege.

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Employment Law Journal

  • TEMPORARY WORK: Employers' duties to seasonal and student workers
    Written by

    Anthony Fincham and Rachel Easter consider the employment rights of interns, work experience students and temporary workers providing holiday cover or support during busy periods

    Many employers will have offered work experience or internships to students over the summer holidays or taken on temporary workers as holiday cover. It is also common to bring in extra staff to provide support during busier periods, such as the lead-up to Christmas in the retail sector. This article answers some of the main questions organisations have about temporary seasonal and student workers.

  • WHISTLEBLOWING: When are claims in the public interest?

    The Court of Appeal has failed to resolve uncertainty over whether a complaint about a breach of a worker’s own employment contract can amount to a protected disclosure, explain Christopher Fisher and Tanem Taskin

    In Chesterton Global Ltd v Nurmohamed [2017], the Court of Appeal considered, for the first time, the requirement for a whistleblowing complaint to be made in the public interest. Disappointingly for employers, the court gave no clear answer but the case is nonetheless an important one.

  • SEXUAL ORIENTATION DISCRIMINATION: Supreme Court decides on survivor pension rights for same-sex partners
    Written by

    Pension schemes which restrict benefits for same-sex spouses and civil partners will need to be changed as a recent ruling means they no longer comply with UK law, reports Fudia Smartt

    In the milestone judgment of Walker v Innospec Ltd [2017], the Supreme Court held that same-sex civil partners and spouses are entitled to the same pension on the death of their partner or spouse as heterosexual couples. Therefore, para 18 of Sch 9 of the Equality Act 2010 was deemed to be incompatible with the Equal Treatment Framework Directive.

  • INJURY TO FEELINGS: Court of Appeal rules that employment tribunals should increase discrimination awards
    Written by

    Phil Allen looks at a recent Court of Appeal decision and why it means there will be increases to discrimination awards in employment tribunals

    Discrimination awards and settlements for employment claims will rise following a landmark Court of Appeal decision and a resulting consultation launched by the presidents of the employment tribunals. In its long-awaited judgment in De Souza v Vinci Construction (UK) Ltd [2017], the court has confirmed that discrimination awards for injury to feelings and personal injury made in the employment tribunal should be increased. That has now been followed by a judicial consultation which proposes significant increases in tribunal injury to feelings awards in discrimination cases.

  • GIG ECONOMY: The Taylor review – a missed opportunity?

    Tim Leaver, Paul Young and Jemima Coleman summarise the key findings of the Taylor review and analyse its impact in the context of recent case law

    After months of anticipation, Matthew Taylor’s Review of Modern Working Practices was published on 11 July 2017. Unquestionably, significant time and effort went into engaging with gig companies, interested parties and workers to understand the complex dynamics of the gig economy and its impact on working practices.

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Family Law Journal

  • CHILD SUPPORT: A change for the worse
    Written by

    Vanessa McMurtrie and Catherine Poleykett comment on the decision in Green v Adams and the interaction between applications under Sch 1 to the Children Act 1989 and maintenance assessments

    Since its inception in the early 1990s, the legislation surrounding the payment of child support from a non-resident parent has been a thorn in the side of family lawyers and the government alike. The decision in Green v Adams [2017] serves to highlight the ongoing limitations in the statutory scheme.

  • PRIVATE CHILDREN: Divided loyalties
    Written by

    Laura Guillon looks at change of residence orders in private law proceedings, and the need for properly formulated arguments at first instance

    The decision in U (Children – Residence Order) [2016] is a relatively rare example of the court deciding that there should be a change of a child’s residence. Even more unusually, the order was made in relation to only one of four children. This article considers the factors that led the court to reach that conclusion, and the approach on appeal where grounds of appeal relate to issues not argued previously by the appellant.

    Written by

    In the conclusion to a two-part analysis, Deborah Jeff considers the law on non-matrimonial assets and the key principles applied

    The first part of this article looked at the Privy Council decision in Scatliffe v Scatliffe [2016], and whether it had further developed the law relating to the treatment of non-matrimonial assets. This concluding part will examine the case law that preceded Scatliffe and the principles that will generally apply.

  • CONDUCT: The blame game
    Written by

    Natasha Kurth suggests that arguments as to conduct should be rare in financial proceedings, and approached with caution

    The issue of conduct in financial remedy proceedings is fraught with difficulty, and parties are often keen to assert that their spouse has engaged in conduct that they consider should impact on a financial remedy award. A commonly cited example is adultery. All too often we have to advise our clients that the conduct they describe, even if abhorrent to them, would be disregarded by the court when dealing with financial provision.

  • INTERNATIONAL FOCUS: La vita familiare
    Written by

    Marco Calabrese and Rebecca Harling outline the approach to divorce and finances in Italy

    There are a number of similarities between family law in England and Wales and in Italy, but also notable differences. While civil unions were introduced in Italy for same-sex couples in 2016, same-sex marriage is not yet available, although generally divorce and dissolution is on a ‘no-fault’ basis. Significantly, in relation to finances, a community property regime applies, unless the parties agree otherwise. In common with England and Wales, there has also been a move towards non-court dispute resolution, albeit with a focus on collaborative methods rather than mediation as in this jurisdiction.

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Personal Injury Law Journal

  • FORUM: Rules of service

    Max Archer and Kate Boakes provide an introduction to serving claims out of the jurisdiction

    This is an article about service, a neglected but crucial topic. The importance of service is amplified in the context of cross-border litigation, where mistakes are all too easy. This article will give a brief introduction to service out of the jurisdiction. We will not attempt to cover all of the rules and will not cover the rules regarding Scotland and Northern Ireland.

  • CASE REPORT: Marsh v Ministry of Justice [2017] EWHC 1040 (QB)

    Costs, discount rate, alternative dispute resolution

    In part one, we reported on the judgment for this case, where the Ministry of Justice was found to be liable for a stress-at-work claim. We will now examine the costs judgment and comment on what the judgments mean for future cases.

  • COSTS BUDGETS: The gift that keeps on giving
    Written by

    Paul Jones outlines the latest decision which concerns hourly rates

    Of all the reforms implemented by Jackson LJ, costs budgets is the issue that continues to give judges and practitioners the biggest headaches. From the chaos created by the Court of Appeal’s decisions over relief from sanctions to recent decisions regarding the interplay between costs budgets and detailed assessment, the issue is one which continues to create problems for all concerned. The recent decision in RNB v London Borough of Newham [2017] is a classic case in point.

  • MESOTHELIOMA CLAIMS: What is reasonable?
    Written by

    Philip Turton examines Bussey, Williams and the problem of low-level asbestos exposure

    If, as seems likely, the recent decision in Bussey v Anglia Heating [2017] marks a fresh attack on Williams v University of Birmingham [2011], insurers and defendants’ legal representatives may have to prepare for a more difficult future in low-dose mesothelioma claims. While the decision itself favoured the defendant, HHJ Yelton, who tried the case as a High Court judge, expressly rejected the invitation of the claimant’s counsel not to follow Williams on the basis that, if that case had been wrongly decided by the Court of Appeal, it was a matter for them or for the Supreme Court to overturn it. It thus seems likely that the claimant will strive to renew his argument before a higher forum.

  • NON-PARTY COSTS ORDERS: A Pyrrhic victory avoided

    Patrick West highlights a recent credit hire case where the key issue was whether a hire organisation has immunity from a non-party costs order

    In Select Car Rentals (North West) Ltd v Esure Services Ltd [2017], involving a claim for £23,456.85 for credit hire charges, the court held that third-party credit hire companies might be vulnerable to adverse costs orders and that CPR 44.16 had not altered the powers of courts to exercise their discretion in such matters pursuant to CPR 46.2.

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Procurement and Outsourcing Journal

  • PROCEDURE: Taking notes
    Written by

    Graeme Young highlights the revised rules for procurement challenges in England and Wales

    The Technology and Construction Court (TCC) – the generally preferred forum for procurement challenges in England and Wales – has adopted a guidance note on the conduct of procurement challenges. The note was launched recently at a Procurement Lawyers’ Association event hosted by Coulson J at the TCC in London. Coulson J confirmed that parties will be expected to have regard to the note when litigating procurement disputes before the TCC. A pdf can be found at

  • ENERGY: Power to the people
    Written by

    Peter Kershaw outlines recent proposals addressing energy storage

    Local authorities, hospitals, universities, charities, large businesses and farms are just some of the organisations placing themselves on immediate standby to feed into emerging development opportunities around energy storage.

  • CONTRACT: A fitting judgment
    Written by

    Richard Booth reports on a recent Supreme Court judgment highlighting the need for clarity of drafting

    The Supreme Court handed down its unanimous judgment in MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Ltd on 3 August 2017. The case concerned liability for €26.5m of works to rectify defects in foundations at E.ON’s Robin Rigg wind farm in the Solway Firth, which were designed and built by MT Højgaard A/S (MTH).

  • CONSTRUCTION: Brick by brick
    Written by

    Claire King analyses recent judicial trends in the contractual interpretation of construction contracts

    The key to resolving disputes is all too often working out what a particular provision or provisions actually means. Parties may have wildly different views on what something means even after spending hours negotiating the fine print and signing on the dotted line.

  • PRACTICE: Making changes to public contracts
    Written by

    Richard Hough examines the procurement law issues involved in changing a public contract

    When a contract is drafted, the lawyers involved will do all that they can to ensure that the contract accurately reflects the agreed commercial arrangement as at the time of signing. However, what happens to the contract after it has been signed? Well, as lawyers, we hope (perhaps somewhat optimistically) that the operations manager will consult the carefully drafted contract on a daily basis making sure that the contractor complies with every provision. Often though, as the delivery of the works or services progresses, the contract is only referred to when some difficulty arises. So what happens when the main contractor comes to you and says that there has been a corporate restructure and the contract needs to be novated to another group company, or that it now has the ability to offer additional services which were not originally within scope and by providing these services it can achieve overall savings for the contracting authority?

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Property Law Journal

  • CONSTRUCTION FOCUS: Altruism – a case of good faith
    Written by

    John Starr analyses a recent case which seems to provide a further setback to collaborative working

    Collaborative working has been described as a system of agreed activities, processes and relationships intended to support and improve the delivery of a project. It can also of course relate to longer-term relationships, such as frameworks, joint ventures and term contracts.

  • DEVELOPMENT: Putting it all together
    Written by

    Ann Ebberson highlights the importance of ascertaining rights of way and covenants before purchasing land for redevelopment

    Acquiring land for development can be a bit of a legal minefield. To ensure that this is managed successfully it is important that the developer seeks all appropriate advice: not just from lawyers but also from all other appropriate advisers, including surveyors, valuers, planning advisers and architects, to ensure that every issue is considered from each adviser’s perspective. Examples are rights of light and planning conditions, and some few of the most frequent legal issues that arise are rights of way and positive and restrictive covenants.

  • CHARITIES: Issues to consider
    Written by

    There are particular duties, responsibilities and issues to bear in mind when dealing with property matters for charities. Clare Garbett gives an overview

    It is reasonably well known that there are various common law and statutory duties with which charity trustees must comply when dealing with property.

  • REAL ESTATE FINANCE: Mortgagees and lease forfeiture – Part 1
    Written by

    In the first of a series of articles Sara Lindemann considers forfeiture for breach of covenant and mortgagee protection provisions

    Ask a lender to name their top three red-flag issues when it comes to commercial property due diligence and, more likely than not, ‘lease forfeiture clauses’ will feature in that list.

  • RESIDENTIAL LANDLORDS: When is a 'Part 3 house' not a house?

    Richard Hanstock illustrates the problems surrounding selective licensing schemes and discusses a recent unreported decision

    An ever-greater number of local authorities have adopted selective licensing schemes, requiring residential landlords in certain areas to submit to compulsory registration and inspection. Once an area designation has been made, the requirements apply across the private rented sector, as much to landlords of small-scale investment properties as to those owning large build-to-rent schemes.

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Trusts and Estates Law & Tax Journal

  • MUTUAL WILLS: Can a mirror will be changed?

    John Dickinson assesses whether a proprietary estoppel solution can replace the need for a binding contract

    HHJ Matthews, sitting as a judge of the High Court, handed down judgment on 11 August 2017 in the Chancery Division of the Bristol District Registry in the case of Legg v Burton [2017]. The claimants established a constructive trust under the doctrine of mutual wills, under which the estate of their deceased mother was held for the claimants, rather than being held under her last will for various grandchildren and others.

  • MENTAL CAPACITY ACT 2005: A balancing act

    Iain Managhan examines recent case law on the capacity test to revoke a lasting power of attorney

    The recent decision by District Judge Glentworth in the case of SAD v SED [2017] is an important one; it is the first reported case to consider the issue of capacity when revoking a lasting power of attorney (LPA) since the introduction of the Mental Capacity Act 2005 (MCA). The case involved an application brought by two attorneys who were appointed under a property and financial affairs LPA by their mother who had suffered with bipolar disorder for a number of years.

  • PROTECTORS: An invaluable resource
    Written by

    Gavin Ferguson and Chris Hards discuss the rise in the use of protectors

    The offshore fiduciary industry began to see protectors being introduced during the mid to late 1980s. The rise in the popularity of their use may be attributed to many concerns but the following factors, rightly or wrongly, appear to dominate perceptions:

  • COURT OF PROTECTION: Aiming to enable

    Martin Terrell and Louise Mathias-Williams set out the lessons from the Public Guardian’s recent decision over severance applications

    Practitioners involved with the ever-increasing demand for lasting powers of attorney (LPAs) may struggle to find judicial guidance on the finer points of drafting and practice. Details of cases are often hidden away in footnotes of textbooks or in obscure corners of the government website. It is therefore quite an event when 17 applications made by the Public Guardian have been dealt with in a single case, heard by District Judge Eldergill in April 2017. His impressive judgment was reported on 19 June 2017 in the case of The Public Guardian’s Severance Applications [2017].

  • TAX: Trustees take note
    Written by

    Finance Bill 2 contains changes to the taxation of non-doms and more. Alex Ruffel and Tom Barber give the lowdown

    The UK government announced on 13 July 2017 that it will introduce a second Finance Bill (Finance Bill 2) in September 2017. Finance Bill 2 will revive changes to the taxation of certain non-domiciled UK residents (non-doms) and to the taxation of UK residential property in offshore structures.

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