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
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
HEALTH AND SAFETY: Sentencing guidelines – new dawn or damp squib?
Written by Clyde & Co LLP
Chris Morrisoncontemplates how organisations are responding to the prospect of much tougher fines for health and safety offences
New sentencing guidelines for health and safety, corporate manslaughter and food safety offences were introduced on 1 February 2016, arming the courts with a new weapon of fines related to turnover to take on errant businesses.
TERRITORIAL JURISDICTIONS: Over the seas but not always far away
Written by Hogan Lovells
Jo Broadbentreviews two recent decisions focusing on whether individuals working abroad could bring a claim in the UK employment tribunal
Neither the Employment Rights Act 1996 (ERA) nor the Equality Act 2010 (EqA) contain provisions about their territorial scope. This has resulted in the courts and tribunals having to determine in what circumstances someone who does not actually work in Great Britain will have protection against unfair dismissal and discrimination.
WHISTLEBLOWING: A whistlestop tour of new rules for regulated entities
Written by Norton Rose Fulbright
New rules require banks and other financial institutions to put extra procedures in place encouraging staff to report concerns about the business, report
Nick Howardand Ben Wright
In October 2015, regulators proposed a package of measures to formalise financial firms’ whistleblowing procedures. The measures were contained in a supervisory statement (SS39/15) and a policy statement (PS15/24) issued by the Prudential Regulation Authority (PRA). PS15/24 attached new rules to be included in the Senior management arrangements systems and controls sourcebook and the Prudential sourcebook for investment firms. While affected firms have until 7 September 2016 to comply with most of the new rules, 7 March 2016 was the deadline for appointing a whistleblowers’ champion.
DRUG POLICIES: The lowdown on the legal highs ban
Written by Gowling WLG
Anna Fletcherand Connie Clifflook at how the Psychoactive Substances Act could affect employers
After some uncertainty and delay, the Psychoactive Substances Act 2016 (the Act) came into force on 26 May. The Act bans the production and supply of ‘legal highs’ but not their use.
CONTRACTUAL EMPLOYMENT POLICIES: Court of Appeal restricts employer’s room for movement
Written by Shoosmiths LLP
A recent decision highlights the lack of flexibility for employers who have contractual employment policies.
Liz Parkinexamines the case
Contractual terms governing the employment relationship are subject to the common law principle that a contract may only be amended with the agreement of the parties.
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
CREDIT HIRE: The latest instalment in the litigation saga
Written by No. 5 Chambers
Maria Mullareflects on replacement vehicle issues that have been addressed by the court in recent claims
Claims for personal injury involving road traffic accident victims often include the cost of a replacement vehicle. It has been queried if credit hire litigation is going to come to an end. Post Karl Stevens v Equity Syndicate Management Limited  credit hire claims remain strongly disputed. The courts are consistently asked to adjudicate on some of the issues which are explored below.
CASE REPORT: Hayden v Maidstone and Tunbridge Wells NHS Trust  EWHC 1121 (QB)
Written by 12 King's Bench Walk
Late surveillance footage; disclosure; fraud; expert evidence; adjournment
This case is an important illustration of the tension between the imperative of procedural discipline on the one hand and the inclination to permit deployment of surveillance evidence to expose potential fraud on the other.
COSTS: The appeal of QOCS
Written by Legal Costs Negotiators Ltd
Paul Jonesexplores a case concerning whether a costs order applied to an appeal
It is now over three years since the bulk of the Jackson reforms were introduced on 1 April 2013 and many of the key elements are still giving rise to fundamental issues of application. The recent case of Parker v Butler , for example, examines a fundamental issues regarding the application of Qualified One Way Costs Shifting (QOCS) – whether it applies to appeals or not?
JURISDICTION: The armed services and the conflict of laws
Written by Old Square Chambers
Philip Meadoutlines how the court decided which country’s law was applicable to an accident overseas
In Rai v Ministry of Defence (2016), the court had to determine whether the Rome II reg 864/2007 applied and to identify what was the proper law of the tort (Alberta law being the law of the place of the accident, or English law). The claimant was a serving Ghurkha who, as part of adventurous training, was sent to Canada. In Canada he received training provided by a Canadian company (Lazy H Trail Limited) contracted to provide services, under a contract governed by Alberta law, for the benefit of the British Army. The circumstances of the accident were that the claimant was kicked by a horse on the first day of training, as he attempted to clean the horse’s hoof, thereby suffering a head injury. The claimant brought a claim for breach of a non-delegable duty of care in negligence against the Ministry of Defence.
LIMITATION ACT 1980: Delays in asbestos claims
Laura Elfieldexamines the decisions in cases outside the primary limitation period
In asbestos claims, the time lag between exposure and the onset of symptoms is typically between 15 and 40 years. So while the normal rules as to limitation in personal injury claims apply, such claims do have an almost uniquely long tail. By the time a cause of action accrues, workplaces may have been demolished; businesses shut down; witnesses may have died; and documentary evidence may have been lost.
Procurement and Outsourcing Journal
IT: Better safe than sorry
Written by Nabarro LLP
In the second part of an examination of security risks in outsourcing,
Dr Sam De Silvahighlights the issues to be considered when drafting contracts
The first part of this article (‘Secure services’, POJ30, May/June 2016, p7) outlined the background to security risks and types of security requirements. This article will set out further areas in the contract which should be addressed, including:
REGULATION: Safe passage
John Dohertyand Richard Reeve-Youngexplore the vexed question of legal professional privilege in the context of increasing regulation
In a breakfast meeting in support of Youth At Risk on 9 March 2016, ‘The Scope and Role of the Legal Professional Privilege and its proper place in the context of corporate internal investigation’, Lord Neuberger commented on the increasingly contentious issue of the application of legal professional privilege (LPP) to communications/documents generated by lawyers in the context of corporate internal investigations. This area of the law is in sharp focus at present and developing swiftly, driven by greater regulatory enforcement, especially in the areas of bribery and corruption, which carry significant fines and prison sentences. Perhaps somewhat counter-intuitively, we turn first to Lord Neuberger’s concluding remarks, in which he empathises with the role of a professional adviser in an increasingly complex and fast-moving world (para 25):
HOUSING: All I want is a room somewhere...
Written by Clifford Chance LLP
Nigel Howorthand Michael Coxallreport on significant planning reforms
The Housing and Planning Act 2016 (the Act) has received Royal Assent. It provides framework powers for a number of significant planning reforms including the requirements to provide starter homes within residential development, a new route to planning permission through ‘permission in principle’, a disputes mechanism for parties struggling to agree terms of a section 106 agreement, and new powers to override private rights to replace the current ‘section 237’ powers. In this article, we comment on the principle elements of planning-related reform.
MODERN SLAVERY ACT: Transparently fair
Chris Syderlooks at the potential impact of the Modern Slavery Act
The UK’s Modern Slavery Act 2015 (the Act) not only sets out stronger criminal sanctions against those who profit from this form of gross human exploitation, but has provided society with the opportunity to scrutinise and hold businesses more accountable for what they are doing to counter modern slavery. The Act requires both UK and foreign companies and other commercial organisations (including partnerships and LLPs) that carry out any business involving goods and/or services in the UK, and have a global annual turnover of £36m or more, to prepare and publish a slavery and human trafficking statement (a statement) for each financial year ‘as soon as reasonably practicable after the end of each financial year’. Businesses with a year end of 31 March 2016 were the first required to publish a statement under the Transparency in Supply Chains clause.
CONTRACT: Word of mouth
Written by DAC Beachcroft LLP
Craig Bennettconsiders a recent Court of Appeal decision on the oral variation of contracts
Many contracts, including PFI project agreements, include a provision which prohibits oral variations and only permits variations when they are in writing.
Property Law Journal
CONSTRUCTION FOCUS: Time for a new privilege?
Written by John Starr
In the second of two articles focusing on mediation,
John Starrconsiders confidentiality and privilege
In last month’s column, I looked at the question of whether the enthusiasm of the courts for mediation as a means of dispute resolution in the UK construction industry was affecting access to justice. I came to the conclusion that the benefit to society as a whole of removing low-value construction disputes from the court system probably outweighed any perceived injustice to the participants in those disputes, even if it meant that, as a result, they were denied the opportunity for public vindication.
LEASE RESERVATIONS: Be reasonable
Written by Dentons
Bryan Johnston, Emma Frost, Katie Pauland Emma Broadreport on a case that weighs up the right to carry out works against that of quiet enjoyment and derogation from grant
The recent High Court decision in Timothy Taylor Ltd v Mayfair House Corporation  demonstrates that even a widely-worded lease reservation permitting a landlord to undertake works will be qualified by the landlord’s quiet enjoyment and non-derogation covenants, so as to require the landlord to take all reasonable steps to mitigate the impact of the works on the tenant. Depending on the nature of the works, a landlord may well have to consider compensating its tenant for disturbance caused, even where the landlord has the right to carry the works out. As such, the case will be of interest to landlords and tenants alike.
OPINION: The law of unintended consequences
Written by Clarke Willmott LLP
Jonathan Hulleyoutlines the implications of the proposed Bill of Rights for social landlords
Plans announced in the Queen’s Speech to scrap the Human Rights Act 1998 and replace it with a British Bill of Rights could have housing and asset management implications for social housing landlords.
ENFRANCHISEMENT: Get real
Written by Forsters LLP
Amy Jacksonexamines a decision that gives key guidance on how to determine relativity
The Upper Tribunal (Lands Chamber) has recently handed down the much awaited decision on three conjoined cases: The Trustees Of The Sloane Stanley Estate v Mundy & Lagesse; Aaron v Wellcome Trust Ltd . The cases concerned the lease extension claims of flats in prime central London, primarily considering the question of how relativity should be calculated in such leasehold enfranchisement claims.
PLANNING UPDATE: Solar eclipsed?
Written by Dentons
Katie Scuolersummarises the current state of play for large-scale solar development in the green belt
Since the start of 2016, the Secretary of State for Communities and Local Government has dismissed every recovered appeal for large-scale solar development. Of these 13 dismissed appeals, nine were recovered for determination by the Secretary of State because they involved significant development in the green belt. Two repeating themes emerge in the reasons for refusal: inappropriate development in the green belt and a lack of compelling evidence to justify the use of high-quality agricultural land.
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.