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Berwin Leighton Paisner LLP

Berwin Leighton Paisner LLP

James Parker and Clare Eccles consider the future of infrastructure planning

The 2010-15 Conservative-Liberal Democrat coalition government presided over what, in hindsight, could be heralded a ‘golden era’ for infrastructure planning in the UK. Helmed by Prime Minister David Cameron and Chancellor George Osborne, UK government support for the infrastructure sector seemed to be a fast rising stock. However, since Theresa May came to power in 2016, the impetus for infrastructure planning in the UK seems to have waned with the spotlight and political focus appearing to shift away from the sector. Not a great surprise given the ‘B’ word which fills most column inches. And we no longer mean ‘Boris’.

Mark Kaye rounds up recent case law and developments affecting employers and their advisers

Katherine Pope rounds up recent case law and developments affecting employers and their advisers

Nikeeta Mahay rounds up recent case law and developments affecting employers and their advisers

Jessica Parry explains the importance of expert evidence in business lease renewals

Flanders Community Centre Ltd v London Borough of Newham [2016] reminds property litigation practitioners of the importance of expert evidence in business lease renewals.

Jeremy Stephen considers why s20 of the Landlord and Tenant Act 1987 is overdue for amendment

Consultations under s20 of the Landlord and Tenant Act 1985 (the Act) and its regulations have become a fact of life for landlords in the residential sector. However, the regulations which operate without too much difficultly in the more straightforward residential scenarios have become stretched in recent years.

Jane Parsons examines emergency relief in arbitration

It was commonly thought that the provisions for emergency relief under the London Court of Arbitration (LCIA) Rules 2014 increased a party’s options, in that there was a choice between applying to the arbitral tribunal or the English court for such relief. However, the recent judgment of Gerald Metals SA v Timis [2016] strongly indicates that the court’s powers and parties’ options are in fact restricted in circumstances where the tribunal is able to provide timely and effective relief under the LCIA Rules.

Bradley Houlston rounds up recent case law and developments affecting employers and their advisers

A recent case makes clear that the consultation obligation lies with the superior landlord. Jessica Parry explains

In the recent case of Leaseholders of Foundling Court and O’Donnell Court v The Mayor and Burgesses of the London Borough of Camden [2016], the Upper Tribunal (Lands Chamber) (UT) held that a superior landlord was obliged to consult with its direct tenant and any subtenants, in order for the costs of major works to be recoverable via the service charge.

Sheridan Treger and Paul Grace examine the condition of the ‘Northern Powerhouse’ concept and what it might mean for promoters of major development in planning terms

When informed of a rumour that he had died, the 19th century American author Mark Twain famously quipped ‘the reports of my death are greatly exaggerated’. Following the Brexit referendum last month, stakeholders are still waiting for similar confirmation about George Osborne’s ‘Northern Powerhouse’ strategy to boost economic growth in the North of England.

A ‘right to light’ case has lessons for developers wishing to avoid an injunction. Rashpal Soomal explores the nature of the court’s discretion

Any professional advising developers in particular needs to be aware of the circumstances in which an injunction is likely to be awarded by a court. General commercial or contract lawyers are perhaps less familiar with the remedies of specific performance or the grant of an injunction, but both remedies (equitable in nature) are very familiar to property lawyers. English law has long regarded property and appurtenant property rights to be unique rather than akin to interchangeable commodities or services. Because of the concept that each piece of land or estate is unique, an injunction has often been readily awarded to protect against any interference – no matter how minor – with property or appurtenant property rights such as easements or restrictive covenants. The traditional approach was that if an interference with a property right occurred, then an injunction would be granted unless there were exceptional circumstances. Therefore even if only one person was impacted and a hugely beneficial development was potentially compromised, an injunction would still be the starting point. The only recognised exception would be if the person impacted stated in open correspondence that they were really after money, not an injunction.

Catherine McGrath rounds up recent case law and developments affecting employers and their advisers

One year on from the introduction of shared parental leave, Eleanor Porter and Rebecca Harding-Hill look at levels of uptake and some of the challenges posed by the scheme

The first anniversary of the introduction of shared parental leave (SPL) in the UK was on 5 April 2016. The right to take SPL allows eligible couples to share up to 50 weeks’ leave within the first year following the birth or adoption of a child. The stated aims of the regime are to enable both parents to balance work and home life better, to encourage fathers to become involved in caring for their child at an earlier stage and to allow mothers to return to work earlier if they wish without families losing out on time together. One year on, are these aims being met?

Roger Cohen summarises 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 [2002], Gold Harp Properties Ltd v MacLeod [2014] and Swift 1st Ltd v The Chief Land Registrar [2015].

The wording of an employer’s policy meant it was merely obliged to provide PHI, not to ensure the employee actually received payments, write Helen Roberts and Rebecca Harding-Hill

As a result of age discrimination legislation which came into force nearly ten years ago, a number of employers now run two permanent health insurance (PHI) schemes. Under their current scheme, they offer cover to employees up to the age of 65 but there are still some employees claiming under a previous scheme with a lower age limit. This is usually because such employees were already off sick and receiving benefit when the employer entered into the current scheme and were not eligible to join it.

In the first part of a new series, Charlie Bowden rounds up recent case law and developments affecting employers and their advisers

Vicarious liability – ‘close connection’ test still good law

Mark Kaye and Charlie Bowden examine the impact of a recent Upper Tribunal decision on the tax treatment of payments for injury to feelings

The news in July 2015 that the government was consulting on simplifying the tax and National Insurance Contributions (NICs) treatment of termination payments was welcomed by tax and employment practitioners alike. As the case law from both the tax and employment tribunals has shown, this is currently an area of the law riddled with inconsistency. Buried within the mire of uncertainty has been the taxation treatment of payments made for injury to feelings arising from discrimination. Thankfully, the Upper Tribunal case of Moorthy v HMRC [2016] has brought some clarity – if not finality – to the tax treatment of termination payments. In summary, any compensation received in connection with the termination of employment, beyond the £30,000 exemption, is subject to the usual deductions for income tax. Where the compensation is for discrimination that is not connected to the termination, it can be paid tax free.

Hutchings v HMRC [2015] provides comfort for executors given inaccurate information by beneficiaries. Marilyn McKeever gives the lowdown

The case of Hutchings v HMRC [2015] provides a salutary warning for those who still think they can conceal offshore bank accounts, and a comfort to executors who make proper enquiries about a deceased’s estate but who are not given the information they need to make an accurate return.

James Parker reviews the second UK ‘business and commercial’ DCO project

How the UK plans and delivers its major development is crucial to making sure the country gets what it needs. This article explores the latest developments and the use of the new consenting regime.

Marilyn McKeever gives the lowdown on the government’s consultation on non-doms

Over the last few years, tax has entered the public consciousness and it has become a moral issue. The lines between mitigation, avoidance and evasion have become blurred. So far as the public and the tabloid press are concerned, any individual or company who pays less than their ‘fair share’ of tax (whatever that means) is subject to the same degree of opprobrium.

Mark Kaye and Charlie Bowden assess a recent EAT decision on the impact of careless comments by employees on social media

The perils of poor judgement on social media platforms became national news last month, with the publication of a LinkedIn message sent from a male senior partner to a young female barrister. Commenting on her professional photo, the solicitor in question accepted he was being ‘politically incorrect’ in remarking on the barrister’s ‘stunning’ image. But may not have anticipated that his name, and that of his firm, would be dragged through the mud by tabloid and broadsheet press alike – as well as by every online commentator keen to give their two pennies’ worth.

Rebecca Harding-Hill explores the impact on employers of mandatory reporting of differences in what men and women earn

In July 2015, a consultation was launched on regulations requiring companies with 250 or more employees to publish the difference between the average pay of their male and female employees. The aim is to create transparency and lead employers to take steps to address gender pay inequality. Additionally, the government is introducing a new national living wage, which it also hopes will help to address the gender pay gap, as women make up a large proportion of low-wage workers.

The requirements for making a protected disclosure were recently considered by the EAT, report Mark Kaye and Charlie Bowden

By making significant changes to the legislation underpinning protected disclosures, such as the removal of the good faith requirement and the introduction of the ‘public interest test’, the government has sought to address a number of the challenges that whistleblowers face. The drafting of the law, however, continues to encourage employees to raise matters with their employers in the first instance. The recent case of Barton v Royal Borough of Greenwich [2015] demonstrates the difficulties that employees can face when they resist this encouragement.

James Parker evaluates the government’s recent report on productivity

How the UK plans and delivers its infrastructure development is crucial to making sure the country gets what it needs. This article explores the latest developments further to the government’s productivity plan.

Sarah Breckenridge analyses the current state of costs management

In May 2015 at the annual Harbour Lecture, Jackson LJ ‘confronted’ costs management with a survey of major themes and issues which have emerged since its introduction.

Tim Pugh and James Parker examine recent proposals for devolution and what it might mean for infrastructure delivery

How the UK plans and delivers its infrastructure development is crucial to making sure the country gets what it needs. This article explores the latest developments.

Catherine McGrath sets out recent case law on the conflict between sexual orientation and religious rights at work

On 19 May 2015 the Northern Ireland County Court handed down its judgment in Lee v Ashers Baking Co Ltd [2015]. Over the water on 4 June 2015, the Watford Employment Tribunal gave its decision in Mbuyi v Newpark Childcare (Shepherds Bush) Ltd [2015]. These are the latest in a line of cases which have been characterised as pitting sexual orientation and religious rights against one another. For employers, they have returned to the spotlight the significant potential for these rights to clash in the workplace. This article considers how the courts have dealt with these competing rights and how employers should best approach any conflict situation.

The Woodland Trust v Loring [2014] demonstrates the importance of determining the testator’s exact intentions. Marilyn McKeever explains

The Court of Appeal decision in The Woodland Trust v Loring [2014] is another salutary reminder of the need for will draftsmen to own a fully functioning crystal ball.

Will the government’s new occupational health assessment service really end Britain’s ‘sicknote culture’, ask Eleanor Porter and Charlie Bowden

In February 2011, David Cameron declared war on Britain’s ‘sicknote culture’. In a speech to launch the Welfare Reform Bill, he said he wanted to tackle the problem that:

Mark Kaye considers a recent EAT decision on the right of women on maternity leave to be offered a suitable alternative vacancy

Women on maternity leave have special protection in a redundancy situation by virtue of Reg 10 of the Maternity and Parental Leave Regulations 1999 (the regulations). Effectively, they receive priority over all other employees in relation to suitable alternative vacancies. If such an employee is not offered a suitable alternative vacancy where one exists, her dismissal will be automatically unfair.

Mark Kaye highlights a rare reported decision on liability for failure to give an agency worker equal pay after 12 weeks

The Agency Workers Regulations 2010 came into force on 1 October 2011. Emanating from the EU Temporary Workers Directive, they seek to protect workers who are assigned to hirers on a short-term basis via work agencies.

Roadchef is a straightforward application of Hastings Bass to an EBT, finds Marilyn McKeever

In the case of Roadchef (Employee Benefit Trustees) v Hill [2014] Proudman J applied the rule in Re Hastings-Bass [1975] as clarified by the Supreme Court in Futter v HMRC (with Pitt v HMRCC) [2013]. The case is also a salutary reminder that an employee benefit trust is first and foremost a trust and the trustees are subject to the same duties in exercising their powers as any other trustees.

Marilyn McKeever finds an absence of ‘joined-up thinking’ in current tax policy concerning residential property

The hallmarks of a good tax system, as even the government acknowledges, are that it should be certain, stable and fair. I am sure that readers can think of many areas where the UK tax system falls far short of this perfection, but I want to focus on the taxation of residential property, particularly as it affects trustees.

Mark Kaye discusses a recent EAT decision on the dismissal of an employee who continued to take sickness absence after her maternity leave ended

It is not uncommon for a woman to be incapacitated following the end of her maternity leave. The question faced by the Employment Appeal Tribunal (EAT) in Lyons v DWP Jobcentre Plus [2014] was whether it was direct sex discrimination and/or pregnancy and maternity discrimination to dismiss a mother in such circumstances.

Marilyn McKeever gives the lowdown on the Fourth Money Laundering Directive

Trustees these days could be forgiven for developing a persecution complex. It seems to be assumed, certainly by those who do not know any better, and sometimes by those who should, that the only reason for establishing a trust is to evade tax, launder money or worse. As a consequence, a rising tide of domestic legislation and international treaties is placing ever more burdensome disclosure obligations on trustees. While it is inevitable that some trusts (and some companies, foundations and other entities) may be used to conceal criminal activity, the vast majority of trusts are used for perfectly legitimate reasons such as family succession planning and tax mitigation. The vast majority of trustees, settlors and beneficiaries file their tax returns dutifully and pay their proper amount of tax.

Paul Whitehead compares current attitudes towards trusts around the world

Trusts are incredibly versatile, flexible and appropriate wealth-holding vehicles that have existed for many hundreds of years. Over the last few years they have been subjected to unprecedented attack, primarily by various fiscal authorities who seem intent on damaging and limiting the use of trusts, the effects of which, in many cases, go well beyond fiscal neutrality and fail to recognise the very valid reasons why trusts are and have been used and the advantages they provide. 


Mark Kaye considers a recent EAT decision on an employer’s ability to impose conditions on the right to be accompanied

Section 10 of the Employment Relations Act 1999 (the Act) provides workers with the right to be accompanied at a disciplinary or grievance hearing by a trade union representative or a colleague. The Act also prescribes in some detail what is meant by a trade union representative.

Edward Coulson and Rachel Ziegler consider the recent Court of Appeal judgment preventing French parties in English litigation relying on the French blocking statute to avoid disclosure

On 22 October 2013, the Court of Appeal handed down a judgment that prevents French parties to English litigation from relying on the so-called ‘French blocking statute’ to avoid their obligations to provide information and disclosure in English legal proceedings.

Mark Kaye considers a recent EAT decision on an employer’s failure to carry out a proper appeal hearing

All good employers understand that grievances from their workforce need to be addressed promptly and that a proper process must be followed. The Acas Code of Practice on Disciplinary and Grievance Procedures (Acas code) sets out the procedure in some detail. Essentially, when employees are informed of the grievance decision, they should also be notified of their right to appeal against that decision. The Acas code also clarifies that grievance appeals should, wherever possible, be dealt with by a manager who has not previously been involved in the matter.

Low Ah Cheow v Ng Hock Guan reveals the risk of delegating will drafting without care in conveying the testator’s intentions. Nisha Singh examines the case

There have been several Singaporean cases in recent years where the courts have restated the professional duties of solicitors who undertake the task of preparing wills. The appeal in Low Ah Cheow v Ng Hock Guan [2009] centered on the construction of the will of the late Ng Teow Yhee (the testator). Under the terms of the will the testator appointed his son Ng Hock Guan (Sebastian) as the sole executor and trustee and gave the whole of the estate to Sebastian on trust to be distributed to Sebastian (emphasis in original). The testator’s wife and other children sought a declaration that Sebastian was only a trustee and was not a beneficiary of the trusts or the estate. The judge at first instance was of the view that the testator gave his entire estate to Sebastian in the expectation that he would do the right thing by the wider family but no legal obligation was imposed on him. Accordingly, the judge held that Sebastian took the estate absolutely.

Recent cases have questioned the longheld view that an unreasonable deposit is a penalty that can be repaid in full, as Laurie Heller finds out

In a contract for the sale of land, a deposit is an earnest for performance. It is a ‘pledge’ (OED definition of ‘earnest’) of completion of the purchase on the terms of the contract. In the event of failure of the purchaser to complete the purchase, the deposit is forfeit and equity has no power to relieve against the forfeiture. The court has power under statute (see s49(2) Law of Property Act 1925) to order the repayment of a deposit, but, as recently explained in Midill (97PL) Ltd v Park Lane Estates Ltd & anor [2009], that discretion is to be exercised from a starting position that an order for return of a deposit requires the presence of exceptional circumstances.

A recent decision has focused on when it is acceptable for employers to rely on secret filming when investigating suspected misconduct, reports Mark Kaye

The decision by an employer to put in place covert surveillance is an emotive one. It is likely to raise legal issues, such as the potential impact of data protection and privacy legislation, and may also affect the employer/employee dynamics throughout the organisation. In what circumstances is such an approach warranted?

Marilyn McKeever examines the UK treatment of usufructs

HMRC has confirmed its view of the inheritance tax status of a usufruct in its Trusts and Estates Newsletter for April 2013. But what is a usufruct anyway? Why should we, as UK lawyers, care? And what other tax implications are there?

Marilyn McKeever discusses the implications of the Supreme Court decision in Futter v Futter and Pitt v Holt

A seven-strong Supreme Court led by Lord Walker decided that the Court of Appeal had been right to redefine the rule in Hastings-Bass, but wrong in its analysis of the law of mistake.

An EAT ruling has highlighted that the UK’s discrimination legislation is at odds with EU law, reports Olivia Toulson

In Rowstock Ltd v Jessemey [2013], the Employment Appeal Tribunal (EAT) has held that, contrary to EU law, the Equality Act 2010 does not provide protection against post-employment victimisation. The claimant, who was given an unfavourable reference because he had brought prior age discrimination tribunal proceedings, could therefore not succeed in his subsequent claim for post-employment victimisation. This article considers the EAT’s judgment in detail and the practical impact of the case for employers and employees.

Neasa Coen explains the impact of a new definition of charity on tax reliefs

The Finance Act 2010 saw the introduction of a new definition of ‘charity’ for tax purposes. This article explores the background to the introduction of the new definition and its impact on charities and philanthropists.

Chris Webber looks at recent case law on the recognition of foreign insolvency proceedings

The UK Supreme Court’s recent decision in Rubin v Eurofinance SA [2012] has halted the march towards (modified) universal recognition of all aspects of foreign insolvency proceedings in English courts, at least for the time being. But is this such a bad thing?

Mark Kaye reviews a recent case on when the exemption for a single specific event or task of short-term duration is triggered

When the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) were amended in 2006, one of the key changes was the introduction of the concept of a service provision change. This was designed to deal specifically with outsourcing-type situations and to create greater certainty about TUPE’s application to such arrangements.

Trustees v Capmark Bank reminds us that trustees can be personally liable to third parties, as Marilyn McKeever discusses

The case of Trustees v Capmark Bank [2012] is a salutary reminder that trustees’ liabilities to third parties are personal liabilities.

Marilyn McKeever gives a debrief on the ‘mansion tax’

Once again, the government has proposed legislation seemingly without having a proper understanding of the context or the practical implications of the proposals.

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