Mon04242017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • IT: The appliance of science
    Written by

    Tom White and Claire Curtis explore how technology is revolutionising dispute resolution

    Technology and the law is certainly not a new partnership, although it is fair to say that the legal sector has traditionally not embraced technology as readily as some others. Whether such reluctance is borne out of tradition, an aversion to risk, a disinclination to move with the times, or a lack of resources, the truth is that technology is here to stay and offers the legal sector an opportunity to offer a more efficient, cost-effective service.

  • PRACTICE: Menu à la contract
    Written by

    James Popperwell and Nikolas Ireland examine a recent case looking at contract formation

    The High Court’s recent decision in MacInnes v Gross [2017] provides a cautionary tale for those who conduct business without formal written contracts. It also provides a reminder of the law relating to contract formation, whether an intention to create legal relations has been established and the importance of certainty of key terms.

  • INSOLVENCY: Tried and trusted
    Written by

    Kathryn Maclennan takes a view on the impact of a recent decision on trusts created by IVAs

    The Court of Appeal (CoA) decision in Green (Supervisor of the Voluntary Arrangement of James Patrick Wright) v Wright [2017] was handed down on 1 March 2017 and brings some long-needed clarity to the insolvency industry regarding the position with trusts created by an individual voluntary arrangement (IVA). While that clarity is certainly welcome, the decision given has a number of implications for insolvency practitioners (IPs), debtors and lenders alike.

  • CONTRACT: Nohow or contrariwise
    Written by

    Paul Brehony and William Gow consider the pendulum of case law in contractual interpretation

    In Investors Compensation Scheme Ltd v West Bromwich Building Society [1997], Leggatt LJ cited Alice Through the Looking Glass when rejecting the interpretation adopted by the first instance court. He said that its interpretation was ‘not an available meaning of the words’ and was ‘unimpressed by the alleged commercial nonsense of the alternative construction’. Lord Hoffman took a different view in the House of Lords. ‘I will say at once that I prefer the approach of the learned judge’, he said, in support of the first instance analysis. He asserted that ‘almost all the old intellectual baggage of “legal” interpretation has been discarded’ and set out the following five principles of contractual interpretation:

  • DISCLOSURE: Blind data
    Written by

    Gwendoline Davies guides the way through the obligations of data protection and disclosure

    The extent of a data controller’s obligations to respond to data subject access requests (DSARs), and in particular the interaction with legal privilege and litigation, has featured in a number of recent high-profile cases. DSARs are increasingly being used as a quick and cheap alternative to formal disclosure, or for other tactical reasons in the early stages of a dispute. There are a number of potential problem areas.

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Employment Law Journal

  • PUBLIC SECTOR: New rules on off-payroll working take effect

    The government is tightening up the tax arrangements that apply when public authorities hire workers through personal service companies, write Rebecca McGuirk and Anna Scott

    On 6 April 2017, the current intermediaries legislation (which is also known as IR35) will apply to off-payroll working in the public sector. The changes are contained in the Social Security (Miscellaneous Amendments) Regulations 2017 and reflect legislation that will be inserted into the Income Tax (Earnings and Pensions) Act 2003 (ITEPA) by the Finance Act 2017.

  • RECRUITMENT: Lies, damned lies and CVs
    Written by

    Phil Allen looks at what employers can do about fraudulent or dishonest job applications

    A senior NHS manager was recently given a two-year prison sentence for fraud and obtaining a pecuniary advantage by deception, after lying about his qualifications to get a job. He fabricated parts of his work history and falsely claimed on his CV to have numerous qualifications (including two mythical PhDs), obtaining roles such as chief executive and the chair of an NHS trust. So how can employers guard against being misled by a job applicant and how can they deal with an employee who they later find out lied to get their job?

  • ABSENCE MANAGEMENT: How to deal with travel and weather disruption
    Written by

    Claire Helling of Shoosmiths examines the potential legal issues for employers when extreme weather or industrial action prevent employees from travelling to work

    The long-running Southern rail strikes have caused severe disruption for those without any alternative travel options and there have even been reports of people losing their jobs because they have been unable to get to work. The industrial action has now spread to the Northern and Merseyside rail networks, with storms and lines blocked by a collapsed wall and derailed freight train having added to commuters’ woes in recent months.

  • INDUSTRIAL ACTION: A change of tactics?
    Written by

    Although their ability to strike may be curtailed, the trade unions appear to be finding new ways to challenge employers, argue Laura Garner and Will Winch

    Last month, key provisions of the Trade Union Act 2016 (TUA) took effect against a backdrop of long-running rail strikes and a flurry of court cases brought by the unions.

  • DRESS CODES: Lessons from the heelgate inquiry

    Following the recent parliamentary inquiry into high heels and dress codes, Jonathan Iyer considers how employers can avoid sex discrimination when drawing up standards for personal appearance in the workplace

    A dress code can have a number of benefits for an employer. It can allow it to communicate a corporate image or standardise its brand. It can help to instil trust and confidence in the business, projecting an image of professionalism and trustworthiness. Other considerations include health and safety and removing uncertainty about which items of clothing are, or are not, acceptable in a particular workplace environment. A dress code may also foster a culture of belonging.

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Family Law Journal

  • ENFORCEMENT: Into thin air
    Written by

    Laura Guillon analyses a Court of Appeal decision where international assets and a reluctant party prevented the implementation of a financial consent order

    In Bezeliansky v Bezelianskaya [2016] the Court of Appeal was concerned with a big-money case, with a convoluted history and a multitude of issues to consider including non-disclosure, the setting aside and variation of consent orders, enforcement, and committal for non-compliance with an order. The decision highlights that even the most carefully crafted financial consent order may be frustrated when parties and properties are located in different jurisdictions.

  • PRIVACY: Clear as mud?
    Written by

    Rebecca Harling summarises the approach to privacy in family proceedings and asks whether the current system lacks clarity

    Open justice is one of the oldest principles of English law, going back to before the Magna Carta. Jeremy Bentham famously declared that ‘publicity is the very soul of justice’ (Works, Vol 4, 1843). Traditionally the desire for proceedings to be held in the public eye ensured the moral integrity of both the tribunal and truthfulness of any witnesses, but also served to shed light on the legal process and promote a greater public confidence and understanding in the law. In this way justice is not merely being done, but it is being seen to be done.

  • CIVIL PARTNERSHIP: Assessing the options
    Written by

    Danielle Taylor considers the arguments for and against making civil partnership available to opposite-sex couples

    Since 2004 civil partnerships have been available to same-sex couples as a result of the Civil Partnership Act 2004 (CPA 2004), which was originally introduced in order to provide same-sex couples with the means by which their relationship could be legally recognised, and to enable them to have the same financial rights and recognition as a married couple. It was a compromise introduced on the basis that it was felt that legislation introducing same-sex marriages would not be passed based on views held at the time. Subsequently the Marriage (Same Sex Couples) Act 2013 (M(SSC)A 2013) provided same-sex couples with the opportunity to enter into a marriage (or convert their civil partnership into a marriage) should they wish. CPA 2004 was not repealed and this created a situation where same-sex couples had two options available to them in order to legally formalise their relationship: civil partnership or marriage. A bar in the legislation at s3(1)(a), CPA 2004 prevents opposite-sex couples from entering into a civil partnership and means that, in contrast, opposite-sex couples only have one option available to them, ie marriage.

  • PENSIONS: Making a distinction
    Written by

    Rayner Grice highlights the impact of a Supreme Court decision on pension rights and the implications for cohabiting couples

    The Supreme Court ruling in In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] concerned an appellant who had lived with her partner for ten years when they became engaged on Christmas Eve 2009. Sadly the appellant’s partner died two days after their engagement. At the time of his death the deceased was employed by Translink, a public transport operator for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the local government pension scheme. The appellant believed that her late partner had completed a form in which he nominated her to be eligible for a survivor’s pension in the event of his death. However, the Northern Ireland local government officers’ superannuation committee (the superannuation committee), who administered the scheme, said it had not received any form. They therefore refused to pay her a survivor’s pension.

  • DELAY: Measuring time
    Written by

    Matthew Taylor looks at delay in financial proceedings and the more generous approach taken by the court in Briers v Briers

    It seems that, much like buses, you wait an age for a delay case and then two come along at once. Hot on the heels of the judgment in the permission to appeal case of Waudby v Aldhouse [2016] came the Court of Appeal decision in Briers v Briers [2017].

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Personal Injury Law Journal

  • QUALIFIED ONE WAY COSTS SHIFTING: Blind men and elephants?

    Patrick West explores the test of fundamental dishonesty

    In the film Pirates of the Caribbean, Jack Sparrow said:

  • CASE REPORT: Wood and Anor v TUI Travel PLC T/A First Choice [2017] EWCA CIV 11

    Contaminated food; package travel holidays; reasonable care; transfer of goods

    This important package travel case represents a significant coup for claimants in the context of food poisoning cases. Although the package travel industry will be disappointed by the court’s decision, comments in the judgment suggest a demanding approach to establishing causation on the evidence.

  • PATIENT AUTONOMY: Montgomery in action
    Written by

    Julian Matthews looks at recent case law on the issue of consent to medical treatment including the recent Court of Appeal decision of Webster

    Legal and medical practitioners alike recognised that the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] represented a major change in the approach to be adopted when dealing with the issue of consent to medical treatment. What was not wholly apparent was how the principles set out in Montgomery would be applied in practice. There was a genuine concern that the apparently clear principles would be undermined by first instance courts who might feel that the consequence of applying the principles was in some way ‘unfair’ to medical professionals, and would try and re-introduce some elements of the ‘Bolam’ test in order to restrict liability, particularly in relation to assessing what information ought to be provided to the patient at the time any consent to treatment was taken. The Court of Appeal has now delivered its first decision in a consent case since Montgomery, which gives a real pointer to lower courts and practitioners on the extent to which the Montgomery principles will be observed, and how they should be applied in difficult cases.

  • PERSONAL INJURY PROTOCOLS: Sticking to the rules

    Brian Dempsey examines the rigid application of the fixed recoverable fees regime

    In 2013, the government introduced a myriad of changes to the rules at a breakneck speed, not only those giving effect to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 but also major changes to the Protocols and the Civil Procedure Rules themselves.

  • FUNDAMENTAL DISHONESTY: Collision collusion
    Written by

    Toby Evans outlines the actions an insurer needs to take to prove a claim is fraudulent

    The case of Johnson, Burns and Gilchrist v Zurich Insurance Plc and Gilchrist (2016) related to a road traffic accident which was alleged to have occurred on 2 February 2015.

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Procurement and Outsourcing Journal

  • HOUSING: Opening doors
    Written by

    Peter Kershaw makes a plea for stakeholders to respond to the latest government consultations around increasing housing supply and improving planning performance

    Written by Noel Gallagher and sung by Oasis, the lyrics from the hit Fade Away have been listened to by millions who grew up in the ‘90s. Previously described by Noel in Melody Maker magazine as a song ‘about growing up, but at the same time not growing old’, his lyrics for me have come to reflect the current sombre inevitability of life for people of all ages in England who find themselves unable to grow up as they wish, and unable to grow old as they wish, while desperately stuck on the peripheral margins of today’s housing sale and rental market unable to secure a suitable home to move into.

  • POLICY: The green green grass of home
    Written by

    Chris Hoyle reflects on the potential for economic efficiency in the years ahead

    They think it’s all over. Well, it’s only just begun! With apologies to history (1966 and all that) the UK’s eventual exit from membership of the EU offers a once-in-a-lifetime opportunity to introduce greater efficiency into public sector procurement and by doing so to remove the unnecessary ideological baggage that accompanies this area.

  • TENDERING: Down down deeper and down

    Julie-Ann McCaffrey reports on a recent ruling dealing with abnormally low bids

    Abnormally low bids have been a subject of conversation for authorities and aggrieved bidders in recent times. While the authority wants to achieve value for money by receiving goods, services or works from a suitably qualified contractor at the best price, it also wants to ensure that the contractor can deliver the contract properly and fulfil the contract at the price quoted.

  • CONTRACT: Caution to the wind

    Rebecca Williams and David Wright assess the impact of a decision on contractual obligations

    The recent decision of the Technology and Construction Court in the case of Fluor Ltd v Shanghai Zhenhua Heavy Industries Ltd [2016] contains important guidance on fitness-for-purpose obligations, particularly in relation to the offshore wind energy generation industry. The judgment of Edwards-Stuart J should also give parties careful pause for thought when considering entering into agreements to waive their rights to future claims.

  • BREXIT: Happy families
    Written by

    Robert Bell delivers the prognosis for public procurement rules after Brexit

    Those aficionados of the silver screen will remember comedians Laurel and Hardy and in particular their catchphrase ‘Well here’s another nice mess you’ve gotten me into’.

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Property Law Journal

  • BOOK REVIEW: Providing context

    Jonathan Karas QC finds Assets of Community Value: Law and Practice a useful tool in interpreting the legislation

    In the past property rights have been regarded as important. When Parliament reformed them it was believed that it did so with precision and care. These days, things are different. Legislation is now sometimes loosely drafted. The promoters of legislation know this and intend (or hope) that regulators and courts will work things out in practice.

  • CONSTRUCTION FOCUS: Details, details
    Written by

    John Starr considers the amount of detail required in an interim payment application

    There has been a considerable amount of case law recently concerning the degree of openness and transparency required in a payment application or default interim payment notice under the payment regime in the Housing Grants, Construction and Regeneration Act 1996 (as amended) (the Act). Only last month, I wrote about the case of Surrey and Sussex Healthcare NHS Trust v Logan Construction (South East) Ltd [2017], where a distinction was drawn between the amount of transparency required in an interim payment notice (which must be unambiguous) and that required in a pay less notice (where some degree of ambiguity appears to be permitted).

  • ENVIRONMENT: How green is your lease?
    Written by

    Knowledge of environmental, social and governance (ESG) is in increasing demand from clients. Barbara Webb gives the lowdown

    In a world of acronyms, measuring the sustainability and ethical impact of an investment is no different and ‘environmental, social and governance’ (ESG) has become the ‘go-to’ phrase in the context of property investments. This is not a new concept, with property investors having reported on such matters for some years now.

  • PLANNING UPDATE: A complex process
    Written by

    Michele Vas explores current approaches to assessing compensation in the context of CPOs

    The promotion of nationally significant infrastructure projects such as HS2, Crossrail and garden cities, together with the recent (and continued) support in the housing white paper for the use of compulsory purchase to assist in delivering housing, confirms that the use of compulsory purchase orders (CPOs) will play an increasingly prominent role in the delivery of development. The inevitable requirement of exercising CPO powers is that those dispossessed of their land are entitled to appropriate and fair compensation.

  • CONTRACT: The letter of the law
    Written by

    In a question of construction the court will give precedence to the strict meaning of the contract. Ed Socha and Sarah Mitchell explain

    The recent case of Dooba Developments Ltd v McLagan Investments Ltd [2016] has highlighted that, provided the meaning of words in a contract are clear and unambiguous, common sense and the intention of the parties are essentially irrelevant. The use of inconsistent terms and the incorrect use of words may result in the court interpreting a contract differently to how the parties intended.

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Trusts and Estates Law & Tax Journal

  • COURT OF PROTECTION: Who is responsible?

    Hannah Gearey outlines the points considered when there is a conflict between the authority of the deputy and trustees in the case of a personal injury trust

    The question that arose in the case of Watt v ABC [2017] highlights the conflict that can arise between the authority of a deputy appointed by the Court of Protection, and the trustees of a personal injury trust.

  • BOOK REVIEW: Cover to cover
    Written by

    Paul Davies reviews the latest edition of a trusted classic

    The latest edition of Drafting Trusts and Will Trusts – a Modern Approach (13th ed) has recently been published and, having accepted the invitation to review this well-known publication I realised I would actually have to read it – not just skim it but read it properly (or most of the chapters at any rate). Although I am familiar with earlier editions of this book I have never read it from cover to cover and I don’t suppose very many people have; after all, I am sure most people would regard the book mainly as a reference book rather than a riveting page turner. That is a pity because having found the time to read it I realise what an educational experience it has been. Furthermore, because it is more readable than most technical publications, reading it did not feel like a great chore. I am not going to try to convince you that this is a book you would want to take away on holiday, but if you did I do not think you would regret it.

  • OFFSHORE TRUST REFORMS: Reform in practice
    Written by

    Emma Loveday provides some specific examples of the effects of recent reforms to taxation on non-UK domiciled trusts

    In the March 2017 edition of Trusts and Estates Law & Tax Journal, I wrote an article entitled ‘Where are we now?’ providing an update on the various government consultations affecting private client practitioners. The consultations included those relating to the reforms to the taxation of non-domiciliaries (non-doms) which came into force on 6 April 2017. In this addendum to the article, I explain in further detail how these non-dom reforms will affect a standard offshore trust structure by looking at two different scenarios before and after 6 April 2017. Since writing the original article, the government has published amendments to the non-dom reforms in Finance Bill 2017, and this addendum incorporates those changes.

  • DISCLOSURE: A new dawn?

    James Lister evaluates whether the Court of Appeal has established a new approach to disclosure and data protection

    In February 2017, the Court of Appeal handed down their judgment in Dawson-Damer & Ors v Taylor Wessing LLP [2017]. In the few weeks since then, much has already been written about the judgment and its impact on trust law and data protection issues alike: does the court’s judgment herald a new approach to well-enshrined principles of disclosure and data use?

  • TRUSTS: Equity prevails

    Thomas Klemme and Oliver Auld highlight a clash of trust law concerning trusts over foreign assets, which also has lessons for liquidators

    The recent Supreme Court judgment in the case of Akers v Samba Financial Group [2017] (Akers v Samba) has been notable for trust practitioners largely due to the complex conflicts of trust law issues which were raised between the parties. In particular, the judgment provides helpful commentary on the Hague Convention on the Law Applicable to Trusts and on their Recognition (the Trusts Convention) and certain English law principles concerning trusts of foreign assets and transactions over trust property. However, it is perhaps insolvency practitioners who will be most interested in the Supreme Court’s ruling in this case, which confirmed that the power of the English court under s127 of the Insolvency Act 1986 to declare a disposition of property belonging to a company after it has been placed in liquidation to be void did not apply to the sale of property, which was held for the company on trust.

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