The Commercial Litigation Journal
ENFORCEMENT: An island nation
Written by Morgan Lewis
Nicholas Greenwoodand Paul Mesquittaexamine some of the potential commercial litigation consequences of a ‘Brexit’
With the referendum for Britain potentially leaving the EU (Brexit) fast approaching on 23 June 2016, a ‘leave’ vote could have far-reaching commercial litigation consequences for England and Wales.
REMEDIES: A helicopter flight from Coventry
Written by Hardwicke Chambers
Andrew Skellyreviews the jurisdiction to award damages in lieu of an injunction
When the court has jurisdiction to grant an injunction, it can award damages in lieu of an injunction. Guidance on the exercise of this discretion begins with the ‘good working rule’ provided by AL Smith LJ in Shelfer v City of London Electric Lighting Co ; namely, damages in lieu may be awarded if
INJUNCTIONS: The road to East Anglia
Written by Walker Morris LLP
Andrew Beckoutlines Norwich Pharmacal and explains the two tactical options recently highlighted which can be of both assistance and concern to those within data-sensitive industries
The Civil Procedure Rules (CPR) provide a process by which a disclosure order can be sought, pre-action, against a person who is likely to be party to subsequent court proceedings. A Norwich Pharmacal disclosure order (so called following the leading case of Norwich Pharmacal Co v Customs and Excise Commissioners ), however, can be granted against a person who will not be party to subsequent proceedings, so as to identify another person (for example a wrongdoer or a potential beneficiary) or so as to identify the nature of a wrongdoing, who or which will be the subject of subsequent proceedings. A Norwich Pharmacal order can also require the disclosure of information needed to seek redress, as opposed to merely the disclosure of documents as per CPR disclosure provisions.
CONTRACT: Pride, prejudice and aggregation
Written by Penningtons Manches LLP
David Nivenand Elisabeth Masonexplore a recent judgment on aggregation
The Court of Appeal has ruled on the proper construction of the aggregation clause in the Solicitors’ Regulation Authority’s (SRA’s) ‘Minimum Terms and Conditions of Professional Indemnity Insurance’ (the MTC).
DISCLOSURE: Show and tell
Written by Teacher Stern LLP
Jack Rabinowicz, Rod Cowperand Simon Boschatconsider ex parte continuing disclosure obligations
It is the standard practice in legal proceedings that both parties to a dispute should be heard before an issue is decided by a court.
Employment Law Journal
POST-TERMINATION RESTRICTIONS: Winning damages in One Step
Written by Veale Wasbrough Vizards
A recent Court of Appeal decision may make it easier for employers to obtain Wrotham Park damages, explains
The remedies available where an ex-employee has unlawfully used or disclosed a business’s confidential information or breached post-termination restrictive covenants include damages for breach of contract, injunctions and an account of profits.
DATA PROTECTION: Show and tell
Written by Dechert LLP
Charles Wynn-Evansreviews the use of subject access requests in light of a recent High Court decision
Under s7 of the Data Protection Act 1998 (DPA), individuals are entitled to ask their current or former employer to provide them with the ‘personal data’ which it holds on them. This is called a subject access request (SAR). To paraphrase, under the SAR regime, the employer (as a ‘data controller’ for the purposes of the DPA) can require a maximum fee of £10 for compliance with the request and has 40 days to provide the information. The employer can require the individual to provide evidence of their identity if it ‘reasonably requires further information’ on this, and is entitled to require clarification on the scope of the request. Time runs from receipt of that evidence or of the requisite fee (if required), whichever is later.
INDUSTRIAL ACTION: Government may challenge strike's validity
Written by Weightmans LLP
Paul McFarlaneand Louise Singhcomment on the education secretary’s recent attempt to have proposed industrial action ruled unlawful
In The Secretary of State for Education v National Union of Teachers , the High Court recently considered two issues:
TRADE UNION ACT: Striking the right balance?
Written by Pinsent Masons
Major changes to the UK’s strike laws could see employers and unions using a range of new tactics in disputes, reports
The Trade Union Act, which received Royal Assent on 4 May, makes the most significant changes to the UK’s strike laws since the Thatcher and Major governments over 20 years ago. The Act seeks to fulfil the Conservative manifesto pledge to:
EU REFERENDUM: Should we stay or should we go?
Written by Fieldfisher
Richard Kenyonand Olivia Baxendaleconsider how domestic employment law might change if the UK votes to leave the EU
On 23 June 2016, we will have to answer the question: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ After weeks of escalating rhetoric, it will be the people who have the last word, not the politicians.
Family Law Journal
INTERNATIONAL: Global reach
Written by Expatriate Law
Sonny Patelsets out a reminder of the financial remedies available in England and Wales following an overseas divorce
Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) gives the courts in England and Wales the power to grant financial relief after a marriage has been dissolved (or annulled) in a foreign jurisdiction. There are equivalent provisions regarding civil partnership at Sch 7 to the Civil Partnership Act 2004 (CPA 2004). Part III, MFPA 1984 empowers the courts in this jurisdiction to alleviate adverse consequences where no financial provision is made by the foreign court, or where the provision made is inadequate.
PRESERVATION OF ASSETS: Preventative measures
Written by Irwin Mitchell LLP
Deborah Levyand Ciara Mooreconsider the disclosure requirements on an application to preserve assets, and the high bar for obtaining such an order
In Kanev-Lipinski v Aharon Lipinski  the court was concerned with the correct approach to an application to continue a freezing and asset preservation order that had been obtained by the claimant on a without notice application.
RELOCATION: Full picture
Written by Rayden Solicitors
Jennifer Mooreexamines the approach of the courts on an application to relocate a child, and the factors that will be taken into account
Case law sets out the principles that the court must now apply in determining both internal and external relocation cases, and the Court of Appeal was clear in Re C (Internal Relocation)  that there is no distinction between an application to relocate a child within the jurisdiction, and an application to relocate a child to another country. This article will summarise the principles to be applied by the courts, the questions the court will ask in undertaking a welfare enquiry, and what the most important question for the court is likely to be.
IMMIGRATION: The way forward?
In the conclusion to a two-part consideration of children and immigration law,
Katherine Illsleyand Agata Patynalook at how other jurisdictions tackle this issue, and how UK authorities might improve the procedure
The first part of this article considered the legal system in place for unaccompanied children seeking asylum, the problems facing local authorities and the children going through the asylum and care process, and whether the system is fit for purpose. There is little doubt that the number of unaccompanied asylum-seeking children (UASCs) is placing a significant financial and administrative burden on a number of local authorities; the question is whether the best interests of children are being approached as a primary/paramount consideration, or as an inconvenience?
HABITUAL RESIDENCE: Changing places
Written by Irwin Mitchell LLP
Rebecca Harlingand Ciara Mooreanalyse the Supreme Court decision in Re B and the circumstances in which a child may change, or retain, their habitual residence
Issues regarding children within same-sex cohabiting families have seen a newly emerging genre of case law and an evolving legal definition of what it means to be a modern family. In Re B (A Child)  the Supreme Court was concerned with the removal of a child, B, to Pakistan by her sole legal and biological parent, without the prior knowledge, or consent, of the child’s other (non-legal and non-biological) parent, following the breakdown of their same-sex relationship. This case provides welcome analysis and clarification of the modern international law concept of habitual residence, how this tallies with national law (namely when pre-existing habitual residence is lost and new habitual residence gained), and whether a child can ever be in legal limbo without a habitual residence. It also touches on the parens patriae jurisdiction. In Re B, the Supreme Court had to inter alia determine the point at which B had lost her habitual residence, in light of the principles previously determined by the Court of Justice of the European Union (CJEU) and the domestic courts.
Personal Injury Law Journal
CASE REPORT: Gentry v Lee Miller  EWCA Civ 141
Written by 12 King's Bench Walk
Insurers; vehicle loss; allegations of fraud; acknowledgement of service
Lord Justice Vos said in Gentry v Lee Miller  (para 34):
BOOK REVIEW: All together?
Written by 218 Strand
Jonathan Dingleassesses Employer’s Liability Claims (2016 edition)
In a former professional life, when serving in the Royal Navy, the author quickly learned that Royal Marines were among the finest individuals into whose hands you could trust your life. A privilege to command and lead, they were the right people to have at your side on an intoxicated night in Union Street, Plymouth.
MATERIAL CONTRIBUTION: Causes for concern
Written by 7 Bedford Row
Julian Matthewshighlights a case that demonstrates the courts’ approach to contribution to injury
The Judicial Board of the Privy Council’s contribution to the common law jurisprudence on causation of damage in the material contribution case Williams v The Bermuda Hospitals Board  provides a welcome clarification of the law in this complex area. The recent decision in John v Central Manchester NHS Trust  is a very helpful illustration of the application of the principles confirmed by that decision.
COSTS: Trials and tribulations
Written by Legal Costs Negotiators Ltd
Paul Jonesconsiders the costs implications of a dispute that was settled on the day of the trial, before the trial had taken place
One of the key features of the law of legal costs is that there are, in fact, very few actual core legal principles that define this area of law. It is, in theory, incredibly simple – the loser of litigation pays the winner but only to the extent that this is reasonable and, from this, the rest of costs law flows. What this means in practice, however, is that disputes between parties over legal costs can often be distilled down to arguments over a nuanced interpretation of a particular application of these core principles and it was precisely this type of argument that faced the court in the recent case of Bruno Manuel Dos Santos Mendes v Hochtief (UK) Construction .
FINANCIAL AWARDS: Tread carefully
Written by Frenkel Topping
Alison Taylorexplains methods for avoiding professional negligence claims and maximising quantum
A growth area of my work as a financial adviser is acting as an expert witness in professional negligence cases. Under-settling of claims, with solicitors advising clients to accept smaller sums for the sake of expediency, has been recognised for some time. Under-assessment of the value of a claim is equally an obstacle to justice for clients.
Procurement and Outsourcing Journal
PLANNING: Clean living
Written by Ashfords
John Bosworthsummarises changes to permitted developments and a further blow to launderette users
From 6 April 2016, amendments are made to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (the Amending Order) introduces new permitted development (PD) rights and puts the office-to-residential right on a permanent footing.
EMPLOYMENT: TUPE or not TUPE?
Written by Burges Salmon LLP
John Houldenand Adrian Martinconsider the handling of TUPE in procurement documents
A bid team treads a delicate line when it seeks to present a confident and apparently certain solution to a purchaser’s needs if that solution will involve changes for employees. A bidder should therefore have regard to the potential employment law ramifications of what it says in its bid document.
INFRASTRUCTURE: The best-laid plans
Written by CMS Cameron McKenna
Paul Smithexamines the National Infrastructure Delivery Plan
On 23 March 2016 the government published a new National Infrastructure Delivery Plan (the NIDP) outlining the government’s infrastructure priorities for the next five years and beyond. Improving visibility for the investor community and the supply chain, the plan details the government’s infrastructure plans for £483bn worth of planned investment in all sectors across the UK, which for the first time also includes the delivery of social infrastructure. Around £300bn of the intended investment has been allocated to the delivery of infrastructure over the next five years.
TECHNOLOGY: Inscrutable solutions
Written by Fieldfisher
Edward Bennettassesses the value of SIAM and multi-sourcing in 2016
In an economic climate where chief technology officers (CTOs) are increasingly required to deliver ever more for less, the service integration and management (SIAM) tower model was much-discussed in 2015. The SIAM tower model generates significant press and controversy, belying the fact that it is, in reality, a variant on a more familiar multi-sourcing model, evolved to recognise and provide for the reality that many businesses do not have the experience and capability to manage multiple suppliers.
INJUNCTIONS: Holding the balance
Written by Lamb Chambers (Chambers of Mark West)
David Sawtellreviews recent guidance on the American Cyanamid test
Applications for interim injunctions are frequently made urgently, with limited opportunity for a careful consideration of the case law. If a respondent is given informal notice of an application, their legal team will likewise need to move rapidly. Practitioners, therefore, need to be alert to developments in the law ahead of the telephone call from their client.
Property Law Journal
LAND REGISTRY: A question of trust
Written by Thomas Eggar, part of Irwin Mitchell
In light of the recent consultation,
Harriet Bastianigives the pros and cons of the proposed privatisation of the Land Registry
In what many observers see as a controversial move, at the end of March 2016 the government announced a consultation on plans to move the operations of the Land Registry into the private sector from 2017. This forms part of the government’s wider aim of achieving £5bn of additional corporate and financial asset sales by March 2020, with the sale of the Land Registry clearly intended to provide an easy capital receipt for the government in its bid to reduce the deficit.
CONSTRUCTION FOCUS: Time for an exception?
Written by John Starr
John Starrinvestigates the use of mediation in construction disputes and debates its effect on individual access to justice
Mediation has evolved, over the decades since its arrival from the US in the 1970s, into a popular means of dispute resolution in the UK construction industry, particularly in low-value disputes. Its ‘popularity’ has been ‘encouraged’ by the Technology and Construction Court (TCC) through the use of cost sanctions.
COSTS: The price of ambiguity
Written by Forsters LLP
Littlestone v Macleish  sheds light on whether landlords’ costs on dilapidation claims are recoverable on a standard or indemnity basis.
The Court of Appeal decision in Littlestone v Macleish  has attracted legal commentary, primarily because of the court’s findings regarding offers made pursuant to Part 36 of the Civil Procedure Rules (CPR). Indeed, the majority of the judgment focuses on this issue. Of particular interest to property practitioners, however, will be the court’s interpretation of a clause frequently found in leases of commercial premises, which sets out the circumstances in which a landlord may recover its costs from a tenant. While only six paragraphs of the 43-paragraph judgment are concerned with this subject, such brevity should not detract from the significance of the issue at hand.
TITLE GUARANTEE: Worth its weight
Written by Berwin Leighton Paisner LLP
Roger Cohensummarises a series of cases which demonstrate the issues that can arise when a title is registered by fraud or error
The elevator pitch for the system of title by registration in England and Wales is compelling. Title comes with registration. The register is conclusive, or almost conclusive. If the register is wrong and an innocent person is prejudiced, the Land Registry will indemnify the loss. Simple and what could go wrong? The devil is in the detail, compounded by the history and the propensity of a minority to commit fraud. Three examples illustrate the problems that can arise: Malory Enterprises Ltd v Cheshire Homes (UK) Ltd , Gold Harp Properties Ltd v MacLeod  and Swift 1st Ltd v The Chief Land Registrar .
FRAUD: When gross negligence is not enough
Written by Walker Morris LLP
In the first of two articles highlighting the key points of a case involving deliberate deceit by a surveyor,
Jonathan Brooksexplores the principles involved
Following the ‘boom and bust’ of the mid-noughties, the courts have seen many instances of over-inflated mortgage valuations giving rise to findings of professional negligence against surveyors. Pressure from sheer volume of instructions, too casual an approach to obtaining and critically assessing comparables, combined with over-reliance on, and misplaced optimism in, the continuance of a rising market, meant that some surveyors fell below the standard of care required of them and overvalued properties, often causing borrowers and mortgage lenders to suffer loss.
Trusts and Estates Law & Tax Journal
EXECUTORS: A costly sibling clash
Wilby v Rigby  has useful practitioner points on applications for the removal of executors.
In Wilby v Rigby  the court exercised its jurisdiction under s50 of the Administration of Estates Act 1985 to remove both executors of an estate in favour of an independent administrator. The protagonists were brother and sister. By their late mother’s will each were appointed executor and were to share equally in her estate. Judgment arrived almost four years after the death of their mother in November 2011. No grant of probate had yet issued in favour of either party, not least because the claimant had issued a caveat against the will in May 2012.
TRUSTS: An extraordinary jurisdiction
Written by Ten Old Square
Georgia Bedworthanalyses a case which considers whether the English court can vary a foreign trust under the Variation of Trusts Act 1958
Private client lawyers have considerable experience in dealing with matters which have a substantial international aspect. With increasing globalisation and migration, a client’s wealth may be held in a number of settlements, some of which are governed by English law and are English resident, some of which may be offshore holding foreign property but governed by English law, some of which started life as English settlements but have migrated offshore, and some which are governed by foreign law. Even though these settlements may be governed by different laws, there is often some interconnection, be that by reason of the property held in the settlement or the beneficiaries.
PROBATE CLAIMS: A hard case to make
Written by New Square Chambers
Bromley v Breslin  exposes the possible cost consequences of an application under CPR 57.7(5) to challenge the validity of a will.
There have been two recent reported cases on CPR 57.7(5) which applies in probate claims where the validity of a will is called into question. That rule provides that:
CONSTRUCTIVE TRUST CLAIMS: Excuses, detriment and imputation
Written by 3 Stone Buildings
Don McCueexamines the lessons from Curran v Collins 
Claims on constructive trust principles to a share of the beneficial interest in a property in another’s sole name, or a larger than half share in a property in joint names, are usually (but not always) brought by ex-cohabitees.
ILLEGALITY AND TRUSTS : Public policy or rule of law?
Written by Herbert Smith Freehills LLP
Gareth Keillorand Rosanna Pinkerconsider the lack of clarification from the Supreme Court on the illegality defence
The application of the illegality defence, otherwise known as the ex turpi causa non oritur action principle, has long been a means of preventing claimants from relying on their illegal actions to initiate a claim against another party. In essence, the defence relies upon an argument that a claim should not be allowed to succeed where the claimant has been involved in illegal conduct that is connected to the claim. In the context of trusts law, shareholder disputes and fraud, the defence of illegality has been repeatedly raised by defendants and dealt with by the court, though not always consistently.