The Commercial Litigation Journal
PART 36: Rating the offer
Written by Clyde & Co LLP
Tom Whiteand Claire Curtisreport on the effect of currency fluctuations on Part 36 offers
Part 36 is intended to provide a predictable and self-contained code as to the consequences of compliant offers to settle litigation. However, not all commercial litigation is concerned with pounds sterling, which can lead to complications if there are currency fluctuations between the time of a Part 36 offer and the date of judgment. In Novus Aviation Ltd v Alubaf Arab International Bank BSC(c) , Leggatt J had to consider whether it was just to apply the cost consequences set out in CPR 36.14(3) of the then Civil Procedure Rules (now CPR 36.17(4)) in circumstances where Novus had beaten its Part 36 offer (made in sterling), but there had been a considerable drop in the value of sterling to US dollars (dollars being what really mattered to Novus) between the offer being made and the date of judgment. On the facts, he held that it would be unjust to award Novus what would otherwise be a windfall as a result of the currency fluctuation, and refused to allow Novus the cost benefits of beating a Part 36 offer and ordered costs to be assessed on the standard basis.
REMOTENESS: The primrose path
Written by Burges Salmon LLP
Michael Wardreflects on recovery under cross-undertakings in freezing injunction cases
Cross-undertakings in damages (CUDs) are given by an applicant for a freezing injunction, and are designed to protect the respondent from loss arising from the injunction. Inquiries into calculating such loss are typically complex and expensive pieces of litigation. Further, they can result in significant awards; in the recent case of Fiona Trust and Holding Corporation v Privalov  Males J awarded approximately $60m for lost profits.
PRIVILEGE: Keeping secrets
Written by Russell-Cooke LLP
Paolo Sidolilooks at a reassertion of privilege by the Court of Appeal
In Avonwick Holdings Ltd v Shlosberg , the Court of Appeal considered whether privilege attaching to a bankrupt’s documents constituted property which vests in a trustee in bankruptcy and, if so, what use can be made of the privileged documents in the exercise of a trustee’s statutory powers.
INJUNCTIONS: Let me know before you go go
Written by Lamb Chambers (Chambers of Mark West)
David Sawtellassesses the utility of notification injunctions
In Holyoake v Candy  Nugee J gave jurisprudential legitimacy to the use of a notification injunction to help prevent a respondent from dissipating assets. By this type of order, a party is required to give notice when certain assets are disposed of. Depending on the wording of the order, the notice can be given either before or after the relevant disposal. This form of order is less onerous than a typical freezing injunction. Although such orders have been sought and obtained before, this was the first case where the relevant jurisdiction to make such an order was fully discussed. As such, it throws light on the test that the court will apply before making such an order, as well as the likely form of such an order.
COSTS: A fair exchange
Written by Herbert Smith Freehills LLP
Maura McIntoshsummarises a currency-sensitive judgment
When assessing the costs to which a German claimant was entitled on having succeeded in its patents claim in the English High Court, the court in Elkamet Kunststofftechnik GmbH v Saint-Gobain Glass France SA  has awarded an additional sum of £20,000 to compensate for the claimant’s exchange rate loss on payments to its solicitors, particularly in light of the significant fall in the value of sterling against the euro since the EU referendum result.
Employment Law Journal
RELOCATION: Can mobility clauses be relied on to avoid redundancy situations?
Written by Trowers & Hamlins LLP
A recent decision highlights the importance of limiting the scope of mobility clauses to what is reasonable, report
Nicola Ihnatowiczand Anna Scott
The Employment Appeal Tribunal (EAT) has considered the use of mobility clauses in redundancy situations in the recent case of Kellogg Brown & Root (UK) Ltd v Fitton and Ewer . The decision makes it clear that although using a mobility clause may enable an employer to avoid dismissing employees for redundancy, the manner in which it is exercised must be reasonable.
ALCOHOL AND DRUGS : Calling time on drinking in work hours
Written by Keystone Law
Following Lloyd’s of London’s ban on drinking during the working day,
Stephen Levinsonexplains the legal and practical issues surrounding the introduction of a drug and alcohol policy
The decision by Lloyd’s of London to introduce a drinking ban in working hours created worldwide publicity. Perhaps it was the public perception of how business is conducted in the City, outdated though that may be, that caused such interest. The nature of the Lloyd’s decision and the way it was implemented certainly provide some pointers, both positive and negative, for those considering a similar step. The purpose of this article is to provide some guidance to those thinking of amending their current policy or introducing one afresh. This review covers both drink and drugs.
SETTLEMENT AGREEMENTS: No ‘one size fits all’ approach
Written by White & Case LLP
In light of recent case law,
Stephen Ravenscroftand Sarah Taylordiscuss the importance of using clear wording when drawing up a settlement agreement
Settlement agreements are a very useful tool for an employer. They normally draw a line under the employment relationship and provide certainty that an employee will not bring any employment-related claims. Such an agreement is often used to reach a full and final settlement of any claims which the employee has or may have arising out of the employment and its termination, subject to certain exceptions such as claims for personal injury or accrued pension rights.
IMMIGRATION: Farewell to free movement
Written by Lewis Silkin
Samar Shamsconsiders how employers and their advisers should prepare for Brexit, possible restrictions on travel to the US and higher fees to sponsor migrant workers
The meaning of Brexit has changed continuously since the British referendum to leave the EU nine months ago and will continue to do so. This article focuses on how employers can ensure their businesses’ fitness for the future in a shifting immigration landscape.
EQUAL PAY: Gender pay gap regulations: the wait is over
Written by Herbert Smith Freehills LLP
Andrew Taggart, Anna Hendersonand Hannah Whiteexamine the long-awaited final regulations and draft guidance introducing gender pay gap reporting for large companies
Almost two years after the Small Business, Enterprise and Employment Act 2015 was passed enabling gender pay gap reporting to be introduced, the final form regulations were at last approved by Parliament at the end of January and come into force on 6 April this year. Private sector employers with 250 or more employees will need to take their first snapshot of pay data on 5 April 2017 and publish it no later than 4 April 2018. Similar requirements (not covered by this article) apply to public sector employers, but with a first snapshot date of 31 March 2017. On 29 January 2017, Acas and the Government Equalities Office (GEO) jointly published non-statutory guidance (stated to be in draft pending parliamentary approval for the regulations, but no substantive changes are expected).
Family Law Journal
PRIVACY: Behind closed doors
Written by Glaser Jones
Shlomit Glaserand Tim Jonesexamine issues of privacy and confidentiality in family proceedings
Confidentiality can be a significant issue in family proceedings for many divorcing couples. This is particularly so for those going through a divorce where substantial assets are at issue, in the shadow of legal proceedings. For public figures, there may be the desire to protect a modicum of a private life. For others, who have no public profile, there will be the wish to avoid becoming the focus of critical media attention purely because there are large sums at issue, or there is some newsworthy aspect to the way that one or both parties have behaved. In all cases, confidentiality may help to preserve the equanimity of the parties in what can be an acrimonious and stressful case. Most recently the matter has attracted some attention because of the publicity given to Brad Pitt and Angelina Jolie’s divorce, where it seems that the actors have agreed to keep future details of their divorce confidential by using a private judge as they work to ‘reunify’ the family. Closer to home, the issue of confidentiality was discussed further following the decision of the High Court that the financial details of Liam Gallagher’s divorce to Nicole Appleton could not be reported. Similarly, restricted information emerged following the divorce of David Walliams from Lara Stone, where it was ordered that the terms of the financial agreement between them could not be revealed by the media. In essence, all the media could report was that a hearing had started on one day and ended in agreement the next.
VALIDITY OF MARRIAGE: When we are married
Written by Vardags
Moji Sobowaleoutlines the law relating to the recognition of an overseas marriage, and the potential outcomes on an application for a declaration of validity
The issues surrounding the recognition of foreign marriages are far from straightforward, and the outcome seldom pleases all parties. The matter becomes more complex when religious ceremonies, sometimes celebrated without a clearly dictated form, are then the subject of English divorce proceedings.
MEDIATION: Over the line?
Written by Lake Legal LLP
Alison Schmidtlooks at the arguments for and against mediators drafting financial consent orders
In November 2016, the Family Mediation Council (FMC) issued a member consultation to ascertain views on the following questions:
LAW REFORM: The digital revolution
Written by Hall Brown
Ellen Walkerconsiders proposals for family cases to be dealt with online, and developments to date
In the Autumn Statement 2015, the then Chancellor of the Exchequer, George Osborne, announced that radical and unprecedented court reforms were intended to be implemented by 2020. In total, a £700m budget will be dedicated to investment in the court ‘modernisation programme’ that will update and digitise all courts in England and Wales, moving from an outdated paper-based system to one that is in step with the internet society and the growing expectation that services will be delivered digitally.
FINANCIAL PROVISION: Time gap
Written by Mills & Reeve
Claire Molyneuxsummarises the courts’ approach to delay in making a financial remedy application, and how the principles in Wyatt v Vince are being applied
What is the impact on entitlement to financial remedies if there is a material delay between separation/divorce and the financial remedy application itself? This issue was notably considered by the Supreme Court decision of Wyatt v Vince , in which it was decided that the wife had a legally recognisable claim that should be considered by the court, even where there had been a period of 31 years since the parties’ short marriage broke down.
Personal Injury Law Journal
CASE REPORT: Wells v Wood  unreported, Lincoln County Court, HHJ Godsmark QC, 9 December, 2016 WL 07330089
Written by 12 King's Bench Walk
Court fees; limitation period; striking out; abuse of process
In the professional negligence case of Lewis v Ward Hadaway  several claims were held to be statute barred as a result of underpayment of court fees.
PRE-ACTION DISCLOSURE: In a fix
Marcus Coates-Walkerdescribes Sharp v Leeds CC where it was decided that fixed costs apply to the costs of a PAD application in ex-protocol cases
In the case of Sharp v Leeds City Council  the Court of Appeal (COA) determined a ‘short but important point’ in relation to pre-action disclosure (PAD) application costs.
COSTS: Last minute decisions
Written by Legal Costs Negotiators Ltd
Paul Jonesoffers insight into the recent cases that deal with Part 36 offers and fixed costs
Recent months have seen a number of decisions where the fixed costs provisions that now apply to many personal injury cases have come up against other areas of the CPR and the court has been tasked with determining how the apparent conflict is to be resolved. In the recent case of Sutherland v Khan (2016), once again it was CPR Part 36 creating a potential conflict.
EYE INJURIES: Getting the correct treatment
Written by Rushmi Sethi
Rushmi Sethiexamines clinical negligence claims concerning ophthalmic injuries
The purpose of this article is to consider the recent case law relating to eye injury claims, considering in particular the medico-legal aspects that lawyers should be aware of. This article is also based upon research I carried out regarding treatment for eye injuries with Professor Claoue, consultant opthalmic surgeon.
STRESS AT WORK: Navigating the minefield
Written by Ely Place Chambers
Liam Ryandiscusses claims in the Employment Tribunal and County Court and abuse of process
When dealing with stress at work cases one of the first issues that needs to be considered is in which forum (County or High Court as opposed to the Employment Tribunal) should a claimant bring their claim? In cases where a claimant has suffered psychiatric injury, issues that can arise with such an injury, such as an inability to engage with legal advisors, can naturally direct a claimant to pursuing a claim for personal injury in the County or High Court as opposed to seeking remedies in the Employment Tribunal due to limitation issues.
Procurement and Outsourcing Journal
HOUSING: Opening doors
Written by Paris Smith LLP
Peter Kershawmakes 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
Chris Hoylereflects 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
Written by Cleaver Fulton Rankin
Julie-Ann McCaffreyreports 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
Written by Watson, Farley & Williams
Rebecca Williamsand David Wrightassess 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  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 Bryan Cave LLP
Robert Belldelivers 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’.
Property Law Journal
COMPULSORY PURCHASE ORDERS: A method of last resort
Written by DLA Piper UK LLP
Trevor Ivoryand Rebecca Buttlegive an update on the use of CPOs
Compulsory purchase powers, the means by which the state can seize the land of private citizens, albeit in return for compensation, are by their very nature draconian. They have existed for centuries in one form or another, with the legislation that we have today originating in the railway building boom of the 19th century. The private companies that built the UK’s railway network were able to do so because they were empowered by private acts of Parliament to acquire compulsorily the land they needed. Since then, the prominence of compulsory purchase orders (CPOs) has waxed and waned in response to political and economic changes.
CONSTRUCTION FOCUS: The devil is in the detail
Written by John Starr
John Starrexamines the form and content of notices
It is well known that construction contracts in this country are required by the Housing Grants, Construction and Regeneration Act 1996 (as amended by the Local Democracy, Economic Development and Construction Act 2009) to contain an adequate mechanism for interim payments to the contractor. The JCT standard form building contracts all contain payment provisions that comply with the Act and, broadly speaking, have the following effects:
TELECOMS REFORM: A clear message
Written by Shakespeare Martineau
Martin Edwardsassesses the ramifications of the new Electronic Communications Code for landowners
If you represent a landowner with plans to redevelop their land or buildings but part of their site has been let to a telecommunications operator for telecommunications apparatus, now is a good time for them to review their position as the law is about to change.
PLANNING UPDATE: The right to know why
Written by Dentons
Is there now a presumption that reasons be given for planning decisions, asks
Within the last year, we have seen a surge of significant cases in which an absence of reasons being given for planning decisions has proved to be decisive. This happened despite the abolition in 2013 of the statutory duty to give reasons for the grant of planning permission. While the contexts have varied – ranging from delegated decisions, environmental impact assessment (EIA) development and planning committee decisions contrary to officer recommendation – the outcome has been the same each time: reasons for granting permission should be given.
BENEFICIAL OWNERSHIP: Transparency v privacy
Written by Forsters LLP
Laura Williamsonhighlights the pros and cons of the proposed register for foreign property-owning companies
Disclosure of beneficial ownership for foreign companies that own property in England and Wales is a developing area of law to watch. The vast majority of UK companies (with some exceptions for listed companies where there is not the same concern about control) have been required to keep a register of people with significant control (PSCs) since April 2016 and, by June 2017, should have submitted their register to Companies House, where it will be made available for public view.
Trusts and Estates Law & Tax Journal
BOOK REVIEW: The case for arbitration?
Written by PWT Advice LLP
Jo Summersreviews Arbitration of Trust Disputes: Issues in National and International Law
Oxford University Press has produced a new book as part of its international arbitration series.
WILLS: The law of unintended consequences
Written by Barlow Robbins LLP
Using standard wording for survivorship clauses in mirror wills can lead to errors.
Tim Adamsand Scott Taylorexamine the High Court’s current approach to will-drafting mistakes
The recent case of Jump and Jones v Lister  has highlighted the unexpected issues which may arise from the construction of ‘survivorship clauses’ in mirror wills and provides the latest update on the court’s approach to dealing with construction issues and will-drafting mistakes.
TRUSTEES: When to indemnify
Natasha Dzamehclarifies the circumstances in which Beddoe orders and protective cost orders can be used
The role of a trustee can be an arduous and financially precarious one. Trustees are fiduciaries who are subject to a wide range of duties concerning issues such as investment and distribution of the trust property, not profiting from the trust and the keeping of accounts. Breach of trust can occur where a trustee acts without the requisite standard of care, fails to carry out a duty or acts outside the scope of their powers.
CHARITIES : Be prepared
Written by Stone King LLP
Sarah Clunesummarises new fundraising laws and the Charity Commission’s enhanced powers under the Charities (Protection and Social Investment) Act 2016
The Charities (Protection and Social Investment) Act 2016 introduces a statutory power for charities to make social investments, provisions on fundraising and also contains a range of new powers for the Charity Commission, including:
ACCOUNTING RIGHTS: Classified information
Written by 5 Stone Buildings
Can beneficiaries demand the disclosure of trust accounts?
The right of a beneficiary to monitor and protect its interest by obtaining accounts from its trustee is central to the existence of a trust. Accordingly, prior to the Privy Council’s decision in Schmidt v Rosewood Trust Ltd  a beneficiary was thought to have a proprietary right to disclosure of trust accounts or, more accurately the right to obtain inspection and/or the production of copies on demand (see Re Cowin ; O’Rourke v Darbishire ; and Re Londonderry’s Settlement ). If the trustee failed to give effect to that right, the court would order disclosure and normally make the defaulting trustee personally liable for the costs of the proceedings. Indeed, in contrast to the similar proprietary right of a beneficiary to disclosure of trust documents (which was subject to various exceptions formulated in Re Londonderry’s Settlement and later cases), the court spoke of a beneficiary’s right to disclosure of trust accounts in unqualified terms: ‘Every beneficiary is entitled to see the trust accounts, whether his interest is in possession or not’ (per Millett LJ in Armitage v Nurse ).