Wed10182017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • INJUNCTIONS: Glacial globe trotting

    Gareth Keillor and Tom Brown review the test for establishing the existence of assets for freezing injunctions

    In the recent case of Ras Al Khaimah Investment Authority v Bestfort Development LLP [2017], the Court of Appeal has held that, to obtain a freezing injunction, an applicant must establish either a ‘good arguable case’ or ‘grounds for belief’ that assets exist. It rejected the higher threshold of a ‘likelihood’ that assets exist, but held that it is not enough for the applicant to assert that the respondent is apparently wealthy and must have assets somewhere.

  • INDEMNITIES: Expensive conventions

    Russell Hill and Oliver Ward-Jones discuss the liability of office holders for costs in CFA cases

    The recent Court of Appeal case of Stevensdrake Ltd v Hunt [2017] provides guidance on whether the office holder is liable to meet the legal costs in conditional fee agreement (CFA) cases where there are insufficient recoveries in the estate to meet those costs.

  • PRIVILEGE: Accidents will happen

    Susan Rosser and Jonny Cohen consider a recent case of accidental disclosure

    In the recent case of Atlantisrealm Ltd v Intelligent Land Investments (Renewable Energy) Ltd [2017], the Court of Appeal considered again the principles that should be applied in granting equitable relief to a party which has inadvertently disclosed privileged materials to the other side.

  • BREXIT: Courting Europe

    Tom Snelling and Lauma Skruzmane continue their examination of litigation after Brexit

    In our previous article, we examined how jurisdiction and recognition and enforcement will be dealt with after Brexit, from the default regime to potential options. In this part, we look at post-Brexit problems and possible solutions for litigators.

  • COSTS: Keep it in proportion
    Written by

    Gwendoline Davies and Claire Acklam make sense of the rules and recent case law on proportionality of costs

    Proportionality. Since the introduction of Jackson LJ’s sweeping reforms to civil litigation procedure in England and Wales in 2013, this word has had a fundamental impact on the level of legal costs a successful party can recover from its opponent at the conclusion of a case, and consequently on a party’s decision whether to litigate at all. No party wishes to incur unreasonable and disproportionate costs, but there is often a disconnect between costs reasonably and necessarily incurred in the context of the litigation, and costs which the court may consider to be proportionate. While the Civil Procedure Rules (CPR) provide rules and guidance which go so far, there is currently no prescriptive method for ascertaining proportionality of costs and the approach taken by the judiciary varies on a case-by-case basis. In this article we shall examine the key case law on proportionality of costs and ask whether any key themes can be identified to assist those involved in, or considering, litigation.

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Employment Law Journal

  • GRIEVANCES: Confidentiality issues in workplace investigations
    Written by

    Colin Godfrey and Michael Chattle share their tips on how to manage the competing rights to privacy of employees who bring a grievance, colleagues they make an allegation against and witnesses

    Handling employee grievances can be tricky. By its very nature, a grievance will involve matters personal to the employee. This will make the management of confidentiality a significant and challenging part of the grievance process.

  • RESTRICTIVE COVENANTS: Spot the difference – restrictions in sale and shareholder agreements
    Written by

    The courts take a markedly different approach to enforcing covenants in sale-and-purchase and investor agreements compared to those in employment contracts, reports Sam Whitaker

    Restrictive covenants in employment contracts are familiar territory for most private-practice and in-house employment lawyers but they may be less familiar with covenants in sale-and-purchase agreements (SPAs) and shareholder or investment agreements. Often, in a transactional context (and particularly in private equity (PE) transactions), it is useful for employment lawyers to have a basic understanding of the legal issues relating to the enforceability of such covenants and how they interrelate with each other. This article looks at the basic enforceability issues with such covenants.

  • CORPORATE GOVERNANCE REFORM: World-leading measures or missed opportunity?

    Paul Griffin, Amanda Sanders and Johanna Chattle examine the government’s proposals to require companies to publish the ratio of executive to worker pay and give employees a bigger say in their business

    On 29 August 2017, the government published what it described as a ‘world-leading package of corporate governance reforms’ that would enhance the public’s trust in business. In particular, its report, Corporate Governance Reform: government response, considers the publication of pay ratios between bosses and workers and new measures to ensure that the ‘employee’s voice’ is heard in the boardroom.

  • VICARIOUS LIABILITY: Employer accountable for wrongdoing by a contractor
    Written by

    A High Court decision has significantly extended the scope of employers’ potential liability for the actions of individuals whom they do not formally employ, explain Kate Bain and Luke Green

    The High Court recently handed down its ruling in Various Claimants v Barclays Bank plc [2017], which greatly extends the scope of an employer’s vicarious liability so that it can cover quasi-employees and independent contractors working under the employer’s direction. It represents a worrying development for employers who engage independent contractors to provide their employees with services on their behalf, such as occupational health support or eyesight, hearing or other medical testing. It could also result in businesses that use gig economy workers being held liable for their wrongdoing.

  • EMPLOYEE MONITORING: Do employees have the right to a private life at work?
    Written by

    Laura Daniels reviews a recent case on whether monitoring an employee’s personal communications breached his human rights

    The European Court of Human Rights has decided in Barbulescu v Romania [2017] that monitoring an employee’s emails was a breach of his right to respect for his private life and correspondence.

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Family Law Journal

  • NON-MATRIMONIAL ASSETS: The significance of origin
    Written by

    Kevin Danagher examines the High Court’s decision in Christoforou v Christoforou, and the approach to evidencing claims that are non-matrimonial

    In Christoforou v Christoforou [2016] the court was concerned with a case where there was a high level of assets (an agreed asset schedule revealed total assets of approximately £55m), where some of the assets were less than transparent, both parties had credibility problems (in this case especially the husband), and there were a number of as yet unresolved tax issues, making it difficult for the court to come to a judgment. Although the judgment deals with a number of issues, of particular note is its approach to the test for non-matrimonial property. The judgment also deals with the evidence required when dealing with the question of what is matrimonial or non-matrimonial property. While the case does not deviate from existing case law, the judgment provides a useful guide on evidential issues in particular.

  • PRIVATE CHILDREN: A holistic approach
    Written by

    Joanne Hall summarises the factors considered in a case concerned with both leave to remove and allegations of domestic abuse

    In Re CB (International Relocation: Domestic Abuse: Child Arrangements) [2017] Cobb J dealt with both the impact of parental conflict and emotional (domestic) abuse on children and the fundamental rights of children, in the context of a proposed relocation. In this comparatively short judgment, Cobb J delivered a swift masterclass on how parents, practitioners and the judiciary should approach difficult children matters with ‘authenticity’, by following the requirement that an application be determined by reference to the best interests of the child (in accordance with ss1(1) and 1(3), Children Act 1989 (ChA 1989)) and that each decision be assessed based on its impact on the child (Family Procedure Rules 2010 (FPR 2010), PD 12B, para 14.13). Further that the welfare test is the ‘only authentic principle’, and applies to all relevant issues: contact, child arrangements, and relocation (see para 32).

  • REFORM: Divorce for the modern era
    Written by

    Suzanne Todd and Victoria Nottage consider the case for no-fault divorce

    As we look forward with a degree of optimism to the Supreme Court’s consideration of our divorce laws in Owens v Owens [2017], following the grant of permission to appeal, the need for reform to include the introduction of a system of no-fault divorce seems more urgent than ever. While the family justice system is currently undergoing administrative reform, the introduction of no-fault divorce requires amendment to primary legislation.

  • FINANCIAL PROVISION: In sickness and in health
    Written by

    Frances Bailey looks at the potential impact of physical or mental disabilities on financial awards, and the relevant case law

    Section 25, Matrimonial Causes Act 1973 (MCA 1973) specifically directs the court, when considering a financial remedy application, to have regard to ‘any physical or mental disability of either of the parties to the marriage’.

  • COHABITANTS: Seeking clarity

    Chris Bryden and Jyoti Wood analyse the Privy Council decision in Marr v Collie and the significance of a commercial aspect to a personal relationship

    In Marr v Collie [2017] the Privy Council was concerned with an appeal in respect of a dispute as to the beneficial ownership of real and personal property, and considered in particular whether the Stack v Dowden [2007] approach should apply where the personal relationship between the parties had a commercial aspect.

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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 (Part 2): 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 www.legalease.co.uk/tcc-guidance.

  • 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

  • TRUSTS AND COHABITATION: Clarifying contribution
    Written by

    Fiona Debney examines a case that demonstrates the pitfalls of not taking legal advice before purchasing property

    The case of Insol Funding Company Ltd v Cowlam [2017] was heard by the High Court on 16 February 2017.

  • TAX: A corking investment
    Written by

    Alastair Collett and Richard Inston review the tax implications of making disposals from a wine collection

    A near decade of record low interest rates has seen some investors’ attentions turn to alternative investments: Knight Frank’s annual The Wealth Report includes a luxury investment index which includes in its asset classes wine, classic cars, art, watches and coins. With clients moving into alternative investment classes it is important that advisers ensure they are fully informed as to the tax treatment afforded to these trophy assets.

  • WILLS: A legal rather than moral imperative
    Written by

    Claims against the estate will turn on the facts, whatever the circumstances. Sabina Haag discusses the outcome of a case in which abused children were disinherited

    Inheritance issues can arise in families with a history of sexual abuse. Sometimes the sexual abuse does not come to light for many years and disinheriting the victim can be seen as a final act of control or retribution for reporting the abuser to the police.

  • VALUATION: A winning formula?

    Michael Firth provides some pointers on the valuation of shares

    As a general rule, lawyers like rules. Rules can be expressed in black-and-white terms, interpreted and applied. There are often grey areas and difficulties of interpretation, but there are more rules (rules of interpretation) to assist with these problems and, at the end of the day, courts/tribunals of law to tell us which interpretation is the correct one.

  • TRUSTEES: Ensuring a smooth sale
    Written by

    Anthony Turner and Adam Carvalho give the lowdown on the sale of corporate assets by trustees

    It is not unusual for trustees to hold shares in private companies whose activities may range from a single purpose vehicle owning real property to a multi-national trading business. It follows that there will be times when trustees will consider a sale; there are any number of reasons for this but commonplace reasons are to realise value from an investment, to allow the trust to make substantial distributions or to diversify or otherwise de-risk trust assets.

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