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

  • FINANCIAL SERVICES: How to comply with the regulatory references regime

    Catrina Smith and Amanda Sanders explore new requirements aimed at weeding out senior banking executives with poor conduct records

    On 7 March 2017, one year after the Senior Managers and Certification Regime was introduced to improve accountability in the financial services sector, the new regulatory reference requirements came into effect. The purpose of regulatory references is to make it harder for senior staff with poor conduct records to be ‘recycled’ between firms. It remains to be seen whether the new rules will have the desired effect of weeding out all those with poor conduct records or will simply create more disputes about references and result in more contentious exits.

  • WHISTLEBLOWING: Not one but two employers
    Written by

    Martin Cheyne and James English discuss a recent Court of Appeal decision on whether a worker can bring a claim for detrimental treatment against not only their normal employer but against a second organisation with which they have a working relationship

    On 5 May 2017, the Court of Appeal handed down judgment in Day v Health Education England [2017]. This was a high-profile whistleblowing claim which may extend the protection given to junior doctors and other workers in training. This article examines the judgment and considers the implications for employers and workers in the NHS and beyond.

  • POLICIES AND PROCEDURES: ‘Can you just give us a policy on…?’ and why it is not that simple
    Written by

    Paula Rome considers some tricky issues for legal advisers asked to draw up employment-related policies

    HR teams will often contact legal advisers (both in-house and external) requesting standard precedents, policies or procedures on a specific issue. While some policies and procedures do lend themselves to standardisation, many require careful consideration to ensure that they are appropriate for your organisation and are introduced in a way which will not cause conflict with existing working practices.

  • EMPLOYMENT STATUS: The gig economy: a cross-border comparison
    Written by

    Stefan Martin and Helena Davies look at some of the different ways EU member states and the US are responding to the rise of non-standard working arrangements and how these contrast with the UK’s approach

    The rapid and widespread growth of the gig economy has ramifications for employment law in many jurisdictions. There have been a range of legislative and case law responses, particularly on the question of the legal status of workers in the new economic environment and the classification of workers as employees or self-employed contractors. Some of these provide food for thought on how the UK might tackle this issue after the general election.

  • EMPLOYMENT POLICIES: Manifesto manoeuvres
    Written by

    Tom Heys and Kayleigh Williams examine the main political parties’ general election promises on employment law issues

    Employment issues have emerged as a major election battleground, reflecting the aspirations of the Conservatives and Labour – and perhaps to a lesser extent the Liberal Democrats – to be recognised as the ‘workers’ party’. Theresa May has rather boldly claimed to be pledging:

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Family Law Journal

    Written by

    Jennifer Moore provides a reminder of the requirements for prohibited steps and specific issue orders and an update on recent case law

    There have been a number of cases recently that have considered the approach to be taken on an application for a specific issue or prohibited steps order, but first this article will revisit the remit of these broad-reaching orders and how they may be used in a variety of situations and scenarios. It is important to remember that such orders are useful tools for practitioners, and not just methods to prevent a parent removing a child from their existing place of residence or to seek permission to remove a child from their existing place of residence.

  • COHABITANTS: Home truths

    Mark Pawlowski summarises how a non-owning cohabitant can obtain capital provision under the Children Act 1989

    In the typical case, a non-owning cohabitant will seek to claim a beneficial interest in their partner’s house by relying on a constructive trust based on either an express or inferred common intention between the parties that ownership of the property was to be shared. Assuming a common intention (coupled with the necessary detrimental reliance) is established, the task of the court is then to assess the actual proportions in which the parties intended to hold the property by reference to what they expressly agreed or, failing that, by a process of inference or imputation from the surrounding circumstances. This approach stems from the combined effect of the House of Lords’ rulings in Lloyds Bank plc v Rosset [1990] and Stack v Dowden [2007] and the Supreme Court decision in Jones v Kernott [2012].

  • DIVORCE: Finding fault
    Written by

    Emma Morris and Lara Myers look at the factors that may prevent pronouncement of a decree, and the increasing calls for the introduction of no-fault divorce

    Unlike any other type of legal contract, the contract of marriage involves taking on life-changing financial consequences without being told in advance what they actually are. This would seem wrong and unfair, although marriage is of course more than the sum of its legal parts. But how can you agree to something if you do not know what the consequences of entering into that agreement are? Would it really be so difficult for basic information to be provided to couples at the point they register their wish to marry, even in a simple leaflet form? This should not be seen as a deterrent to marriage, as if one is blind as to the obligations and consequences that will arise in the event that the marriage fails, consent on entering the union is fettered at best.

  • INTERNATIONAL FOCUS: Le même mais différent
    Written by

    Izzy Walsh and Floriane Laruelle compare the contrat de mariage with prenuptial agreements

    Approximately 165,000 French citizens live in the UK (Population of the United Kingdom by Country of Birth and Nationality, ONS, 2015), and 157,000 British citizens in France (What information is there on British migrants living in Europe?, ONS, January 2017). These statistics mean that it is ever more important to have a basic understanding of how each legal system works and to be able to navigate between the two.

  • INHERITANCE ACT: Competing claims

    Yorke Eaton and Christopher Noel examine whether the Supreme Court decision in Ilott v The Blue Cross reinforces the principle of testamentary freedom in financial provision cases

    On 15 March 2017 the Supreme Court handed down its judgment in Ilott v The Blue Cross [2017]. The case involved a daughter’s long estrangement from her mother, a bitter family feud and a residuary bequest leaving the mother’s estate to charities. The Supreme Court unanimously allowed the charities’ appeal and overturned the previous decision of the Court of Appeal (Ilott v Mitson [2015]), reinstating the judgment at first instance and the award of £50,000 to the claimant (Ilott v Mitson [2014]). The Court of Appeal had substantially increased the award, which had surprised many observers.

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Personal Injury Law Journal

  • CLINICAL NEGLIGENCE: Management of medical records
    Written by

    Rebecca Fenton explains how delegation can reduce costs in low-value personal injury claims

    Due to the ever-changing landscape of personal injury, we all need to look at what improvements can be made, in particular in order to maintain the viability of low-value claims. The topics I am reviewing are the management of medical records, the importance of medical records in clinical negligence cases, where unnecessary costs are created and how they can be streamlined.

  • CASE REPORT: RE v Calderdale and Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB)

    Shoulder dystocia; secondary victims; psychiatric injury; destruction of medical records

    In this case, the infant claimant had suffered a brain injury during her protracted birth in 2011. She was a very large baby and suffered (the claimants argued) a shoulder dystocia, meaning that her shoulders got stuck in the birth canal. As a result of this she suffered a hypoxic insult to her brain. The two other claimants were her mother and grandmother, who sustained psychiatric injury as a result of the birth.

  • CRIMINAL INJURIES FUND: No wrongful existence

    Anna Macey evaluates a claim for compensation by the child of an incestuous rape

    CICA and FTT v Y [2017] was a Court of Appeal claim for compensation from the Criminal Injuries Fund for a man born with a serious genetic disorder, following the incestuous rape of his mother. Sir Brian Leveson began by saying:

  • LOW VALUE CLINICAL NEGLIGENCE CLAIMS: Caring for clients in a cost-effective way
    Written by

    Richard Baker reflects on how practitioners can adapt to preserve access to justice

    I was called to the bar in the year 2000. When I started practising, the profession was coming to terms with the ‘new’ civil procedure reforms and with conditional fee agreements, which had been introduced some years before. There were rumblings within the profession that these changes would bring an end to the world as my predecessors knew it; and that access to justice would be impaired because, in selecting those cases to take forward under a conditional fee agreement, the legal profession would only run those cases where there was a guarantee of success and where profit would follow, thus removing access to justice from the poor and vulnerable, who would otherwise have been supported by public funding.

  • COSTS: When detailed assessment goes wrong
    Written by

    Paul Jones outlines the consequences of improper and unreasonable conduct when serving a bill of costs

    The signing of a certificate of accuracy in a bill of costs as required by CPR 47 PD 5.21 is normally a fairly uncontroversial subject. It confirms that the bill is accurate and complies with the indemnity principle and creates a rebuttable presumption to this effect which a paying party will normally struggle to challenge. However, in some cases, the manner in which the receiving party presents their bill of costs and conducts the detailed assessment proceedings can give the paying party such an open goal in challenging the bill’s certification that the final outcome can be near inevitable. The recently released case of Jago v Whitbread Group (2016) is a textbook example of how not to certify a bill of costs or conduct detailed assessment proceedings.

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Procurement and Outsourcing Journal

  • PLANNING: Without a plan(ner)
    Written by

    Peter Kershaw voices his growing concern at the lack of involvement of planning law expertise in the long-term strategies of universities and local authorities

    With increased competition from national and international competitors, and rising student numbers, universities are competing against each other for the best students who are increasingly savvy about where they choose to work, live and play. Universities around the globe are therefore necessarily investing in higher quality, multi-faceted and mixed-use environments to try and achieve their long-term strategic missions. In doing so, their focus is very much on creating enhanced student experiences and trying to enhance the university’s role within the local community by creating linkages with local businesses and local authorities.

  • CORRUPTION: Punishing pay-offs

    John Doherty and Nicole Finlayson provide a timely update on bribery and corruption

    Bribery and corruption are firmly in the spotlight for 2017, with an ever-increasing commitment from regulators in the UK and abroad to work together and take a harder line against companies which fall foul of anti-corruption laws. The results can be seen in the wave of high-profile investigations and record-breaking prosecutions and fines that have hit the headlines over the past few years.

  • UPDATE: Seeing the Wood for the trees

    Rebecca Williams and David Wright examine a recent Supreme Court judgment

    The very recent judgment (29 March 2017) of the UK Supreme Court in Wood v Capita Insurance Services Ltd [2017] is an important clarification of the English courts’ approach to the interpretation of the meaning of words in a contract.

  • BREXIT: (Un)happy endings
    Written by

    Graeme Young, Caroline Hobson and Ruth Derruau assess a potential Brexit pitfall

    The Financial Times (FT) recently reported that (10 April 2017):

  • JUDICIAL REVIEW: Standing tall
    Written by

    Stephen Sellers reports on recent case law on the ‘standing’ to apply for judicial review

    In the recent case of Wylde v Waverley Borough Council [2017], five claimants attempted to challenge the variation of a development agreement using judicial review proceedings, on the grounds that it was in breach of the Public Procurement Regulations 2006, in relation to public works concessions.

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Property Law Journal

  • CONSTRUCTION FOCUS: A costly favour
    Written by

    As a professional the offer of gratis services should be made with care. John Starr explains

    About a year ago, I wrote about a case that had made it to the Technology and Construction Court on the question of whether a professional could owe a duty of care in the provision of services even where there was no contract in existence and no payment had been made.

  • PLANNING UPDATE: Love thy neighbour
    Written by

    Janine Shaw highlights current issues with planning urban extensions

    Steps are being taken to address the housing crisis. On 2 January 2017 the government announced support for 14 new garden villages and three new garden towns. More may follow this year. Many emerging and adopted local plans are allocating substantial residential-led schemes, frequently as urban extensions.

  • PRE-CONTRACT ENQUIRIES: Dangers of concealment

    Joanne Wicks QC weighs up the best approach to take when pre-contract enquiries are found wanting

    Greenridge Luton One Ltd v Kempton Investments Ltd [2016] is a quietly interesting case. It does not trumpet out new legal principle or noisily trample accepted wisdom, but it nevertheless provides some useful lessons for practitioners, both transactional lawyers and litigators, and some warnings for buyers and sellers of property too.

  • COMMERCIAL TENANT INSOLVENCY: A question of semantics

    Can a notice of intention to appoint an administrator be filed without any administrator being appointed? Joe Walker investigates the outcome for landlords

    When a commercial tenant becomes insolvent, the landlord’s ability to exercise its usual enforcement options depends upon the type of insolvency procedure to which the tenant is subject and the stage that procedure has reached.

  • CONVEYANCING: Keep it under review
    Written by

    Caroline Green and David Harris discuss the effectiveness of non-reliance clauses and the liability of trustees when a contract is disputed

    The case of First Tower Trustees Ltd v CDS (Superstores International) Ltd [2017] arose out of a misleading reply given to a pre-contract enquiry and, in reaching his conclusion, Mr Michael Brindle QC had to tackle a variety of issues of general interest in the conveyancing process. Among other things, he had to consider:

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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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