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Last updateTue, 24 Feb 2015 5pm

Bond Dickinson LLP

Bond Dickinson LLP

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.

Luke Busbridge examines the outcome of The Trustees of the David Zetland Settlement [2013], in which it was argued that a property business was eligible for 100% business property relief

A well-worn maxim is that ‘we’ve never had it so good’, but one that is not commonly heard in relation to tax. However, it arguably rings just as true in relation to the current (very favourable) rates of business property relief (BPR) as it does in other, less objective, connections. With the top rate of BPR standing at 100% and appearing to be in little danger of being altered – during the lifetime of the present government, at least – in that respect we really have never had it so good. Someone of a less sunny disposition might also observe that things cannot get any better, but that is not the point. Since 10 March 1992, the maximum rate of BPR has been 100%, and is, understandably, one of the golden geese of the capital tax world.

Jonathan Bower and Richard Guyatt report on the White Rose carbon capture project

The recent decision by the Secretary of State (SoS) to refuse the application for the development consent order (DCO) for the White Rose carbon capture project came as no surprise in light of the government’s announcements on the closure of the Carbon Capture and Storage (CCS) Commercialisation Programme at the end of 2015. That programme would have provided funding to deliver these embryonic projects.

Jonathan Grogan looks at the pros and cons of removing personal representatives

Applications to remove personal representatives (PRs) under s50 Administration of Justice Act 1985 are certainly a useful, often necessary, tool for resolving disputes over the administration of an estate. They appear to have become more popular in recent years and there is a steady stream of court decisions concerning them (including applications to remove will trustees using the provisions of the Trustee Act 1925 or under the inherent jurisdiction of the court). We will look at some of the more recent cases in this article. Although it is true that reading judgments in s50 cases can help guide the practitioner in their dealings with the recurrent themes that crop up in this type of case, there will always remain a strong element of uncertainty in this area. Whereas all litigation carries inherent risks, this jurisdiction seems particularly difficult to second guess. And yet, because the parties can be very intransigent and the impasses they have reached can be so difficult to resolve, cases can be more likely to go to trial.

Simon Lewis examines the duty of good faith in commercial contracts

English contract law does not like the idea of a duty of good faith which can be implied into commercial contracts as a matter of law. The imposition of such a duty has been seen as inimical to the adversarial tradition of negotiated agreements and the principle of freedom of contract. This approach is encapsulated by Bingham LJ in Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1987]:

Victoria Brooks, Tom Beezer and Hannah Cockerill discuss the recent reinforcement of final orders in arbitration proceedings

A recent case in the Commercial Court, Swallowfalls Ltd v Monaco Yachting & Technologies S.A.M. [2015], has confirmed that there can be no second bite of the cherry in court proceedings where a claim has already been determined in arbitration, demonstrating the effectiveness of security for costs and final orders in arbitration proceedings.

Deborah Ramshaw reports on a recent judgment highlighting the pitfalls of disclosure

The Bristol Missing Link judgment (Bristol Missing Link Ltd v Bristol City Council [2015]) is another in a growing line of decisions concerning an application to lift the automatic suspension and provides useful commentary on the issue of disclosure in this context.

Frank Orr looks at planning compulsory purchase orders in light of some of the findings of a Bond Dickinson report published in March, and comments upon the procedural reforms suggested in the recent government consultation paper

It has been a busy few weeks in the world of compulsory purchase. The government’s consultation paper on reform of the compulsory purchase order (CPO) process has been published (see www.legalease.co.uk/compulsory-purchase), together with draft revised circular guidance.

Clare Sample and Francesca Hodgson give advice on how employers should respond to new drug driving legislation

New drug driving legislation came into force on 2 March 2015. The Drug Driving (Specified Limits) (England and Wales) Regulations 2014 introduce a new offence of driving, attempting to drive or being in charge of a motor vehicle on a road or other public place with amounts of certain controlled drugs above specified limits in the driver’s blood.

Antonia Murillo and Sara Wex outline the current status of community pubs

The government was urged to bring forward amendments to the General Permitted Development Order 1995 (GPDO) last July, so that any demolition or change of use involving the loss of a public house would require planning permission, by a cross-party MP motion (Early Day Motion 208, 2 July 2014, Charlotte Leslie). The remainder of 2014 did not see any proposals come forward, but a Commons select committee on community rights took evidence on the operation of ‘community rights’ over the course of 2014. Its remit was to investigate the progress made in allowing communities to use the powers, particularly under the Localism Act 2011 and Regulations, and to examine whether the legislation was operating effectively.

Deborah Ramshaw and Emma Dewar outline two recent cases of note for practitioners

October 2014 has seen two notable procurement judgments in the High Court (TCC), both delivered by Ramsey J. One judgment is concerned with the ‘automatic suspension’ rules and the correct test to be applied when the court is asked to consider lifting an automatic suspension. The second case concerns the difficult area of disclosure, but in this case in relation to a claim that the contracting authority failed to investigate an abnormally low tender.

Jonathan Grogan sets out the current position on gifts from deputies and attorneys to themselves

Clients often seek guidance from their legal advisers about making gifts when acting as attorney or deputy on behalf of someone who lacks capacity. Understandably, they want practical and useful advice rather than an unwieldy regurgitation of the law. The problem is, however, that the law in this area happens to be quite complex.

Sarah Holmes looks at recent revisions to the environmental impact assessment directive

Assessment of the likely significant environmental effects of certain public and private projects has been a feature of decision making in town and country planning and other project consenting processes in the UK since 1988. Over the years the process – the environmental impact assessment (EIA) – has provided fertile ground for legal challenges, which have been based both on procedural flaws and on assertions that actions by public authorities have been so unreasonable that they are unlawful.

Christopher Towner and Ed Rimmell review the Environmental and Energy Aid Guidelines and their implications for UK energy policy

Speaking at a recent industry event, the speaker for the Department for Energy and Climate Change (DECC) outlined again how the government’s Electricity Market Reform (EMR) programme provides an ambitious package of measures to incentivise the investment needed to replace the UK’s ageing electricity infrastructure with a more diverse and low-carbon energy mix. Around a fifth of existing capacity is to close by the end of this decade, and it is estimated that up to £110bn of capital investment is needed for replacing and upgrading electricity infrastructure until 2020.

Fiona Graham examines a decision clarifying the ‘limbo period’ which arises after a fixed-term lease expires while the parties are in negotiations for a new lease

A fixed-term lease comes to an end. There is no security of tenure under the Landlord and Tenant Act 1954 (in the case of commercial premises). The landlord is content to discuss terms with the tenant for a new lease and the tenant wants a new lease. The tenant continues paying rent. What is the tenant’s status pending the completion of a new lease?

Victoria Redman explores the implications of state aid

At the end of January, the European Commission launched an in-depth investigation into the government’s plans to assist the construction and operation of Hinkley Point C and whether the contracts-for-difference regime complies with EU state aid rules. This was followed, in early March, by the release of a Treasury Committee report which considered evidence that energy investment deals were being distorted due to government attempts to reach carbon reduction targets. Evidence given to the committee was particularly critical of the commercial contract for Hinkley Point C’s development.

Julie Prior and Deborah Ramshaw investigate the application of the procurement regulations to development agreements: Commission v Spain

In Commission v Spain [2010], the CJEU was again asked to look at when development projects might fall within the definition of a ‘public works contract’ and therefore be subject to the public procurement directive 2004/18/EC (the Directive). The principle that a development agreement may constitute a public works contract was established in Auroux & ors v Comune de Roanne [2007]. Prior to the Roanne decision, it was common practice throughout the UK for contracting authorities to treat development agreements as a category of contract almost automatically exempt from the procurement regime.