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Last updateTue, 24 Feb 2015 5pm

Clyde & Co LLP

Clyde & Co LLP

The government’s failure to address the issue of purposive construction in its plan for the Great Repeal Bill will lead to uncertainty and a wave of litigation after Brexit, warns Sandy Kemp

The government set out its strategy for giving effect to Brexit in its white paper, Legislating for the United Kingdom’s withdrawal from the European Union, which may or may not be revised given the outcome of the general election on 8 June. Unlikely to change, however, is the white paper’s promise to ensure that EU case law and directly applicable EU legislation will, at the time the UK leaves the EU, be written into UK law so that (para 1.12):

Tom White and Claire Curtis explore how technology is revolutionising dispute resolution

Technology and the law is certainly not a new partnership, although it is fair to say that the legal sector has traditionally not embraced technology as readily as some others. Whether such reluctance is borne out of tradition, an aversion to risk, a disinclination to move with the times, or a lack of resources, the truth is that technology is here to stay and offers the legal sector an opportunity to offer a more efficient, cost-effective service.

Tom White and Claire Curtis report 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) [2016], 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.

Tom White and Emma Holmes return to the problem of court fees

In 2015 we saw some substantial rises in court fees, including, in particular, fees for issuing claims. This rise in fees saw vehement opposition in some quarters, on the basis that it would become uneconomic or prohibitively high for some claimants to bring their claims. We have now started to see examples in practice where, on the face of the claim form, claimants may have not paid the correct issue fee. There have been a number of recent cases in which the courts have considered this issue, in response to attempts by defendants to knock out claims on the basis of limitation arguments following payment of incorrect court fees. As the cases make clear, the approach that the courts will take depends on the reasons behind the payment of the incorrect fee. The calculation and payment of correct fees is something that claimants’ and defendants’ solicitors need to be aware of, or they may face potential allegations of negligence.

Chris Morrison contemplates 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.

Michelle Radom looks at security for costs and the secretive defendant

One ground for seeking a security for costs order from the courts is that the claimant is a company and ‘there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so’ (CPR r25.13(2)(c) (ground (c))).

Laura Nation examines the implications of the National Infrastructure Commission’s proposed planning rule changes

The National Infrastructure Commission (the NIC) was set up in 2015 by the Chancellor George Osborne to consider the UK’s strategic case for additional large-scale transport infrastructure in the capital. In a report published on 10 March 2016, ‘Transport for a World City’ (the report), the NIC recommended that Crossrail 2 be taken forwards by the government as a means of alleviating pressures on London Underground lines, commuter services at major Network Rail stations and insufficient orbital links. Further, given the predicted increase in London’s population to over ten million by 2030, an increase of 1.4 million over today, (see the ‘London Infrastructure Plan 2050: Transport Supporting Paper 2014’), Crossrail 2, and its ability to promote housing growth, is being hailed as an antidote to the chronic housing shortage in London and the surrounding areas.

Elizabeth Jenkins looks at the implications of housing shortage

It is almost impossible to avoid or ignore the fact there is a ‘housing crisis’ in the UK which, if not tackled, is going to severely limit the economy’s growth and the government’s objective to reduce the economic deficit. The housing crisis is not just about the need for more general housing, housing for first-time buyers or housing to rent, it includes all types of tenures and in particular affordable housing for the elderly and vulnerable. The answer of course is to increase the supply of housing but the more difficult question is how to do this. A combination of solutions is required to ensure more housing is built – particularly affordable housing that is suitable for the elderly and those with social needs. These solutions will involve different participants, different tenures and different financial models.

Laura Nation considers the Chancellor’s proposals for devolution and their implications for planning and development. Are they an attempt to reintroduce regional strategies?

On 5 October 2015, the Chancellor restated the Conservative Party’s commitment to a ‘devolution revolution’. While the headlines focused on the devolution of business rates to local councils, this is but one of the powers to be shifted away from Whitehall. Indeed, the latest announcement has been billed as the most widespread devolution in the UK since the establishment of the Welsh Assembly and Scottish Parliament and is part of a wider approach to devolve powers in relation to welfare, the NHS, transport and, crucially, strategic planning to city regions.

When falling service standards in the County Court impact on access to justice then it is time for solicitors to say something, writes Keith Conway

The 1,200 members of the Property Litigation Association (PLA) spend at least 50% of their time dealing with property disputes, frequently in the County Court. In response to mounting frustrations and clients’ concerns about the quality of the County Court service, the PLA has launched an initiative to encourage court users to give case-specific feedback on their experiences (good and bad). That received so far supports the widespread anecdotal evidence of repeated and significant administrative failings, unacceptable delays and clients losing faith in the civil justice system. It is hoped that by collating and presenting this feedback, Her Majesty’s Courts and Tribunals Service (HMCTS) will be better able to target real areas for improvement.

Neil Jamieson and Paul Mesquitta outline the perils involved in changing experts

As practitioners will know, the rules governing the use of experts in court proceedings are contained in Part 35 of the CPR. Specifically, CPR 35.4 states:

Andrew Kelmanson provides a timely reminder of the law behind co-defendant costs orders

Alongside determining the liability of the parties to proceedings, courts are also tasked with apportioning the costs of litigating between them. Under CPR r44.2(a), the ‘general rule’ is that successful litigants are to recover their costs from unsuccessful litigants (court orders often refer to costs being ‘in the case’). This position is far less straightforward when dealing with multi-party litigation involving a number of defendants who may be facing multiple claims.

Neil Jamieson examines the increasing significance of mediation

Would-be litigants certainly cannot be criticised for approaching the prospect of bringing or defending court proceedings with increasing trepidation. The recent and sudden rise in the fee charged by the courts to bring proceedings has caused widespread alarm. The cost of commencing a £200,000 claim rose just weeks ago from £1,315 to £10,000. Although subject to a maximum limit of £10,000, the fee rise is nevertheless startling. Add to this the impact of the Jackson reforms – the increased control by judges over the litigation process and focus on strict rule compliance (backed by sanctions), together with the requirement for all parties to claims worth less than £10m to produce a detailed costs budget for the entirety of the case (with the risk of costs falling outside that budget being irrecoverable) – and it seems inevitable that parties will find litigation a less attractive option than before.

Nigel Brook and Michelle Radom examine the impact of the new Reg 1215/2012

In a recent case, Toyota Tsusho Sugar Trading Ltd v Prolat SRL [2014], the claimant commenced an arbitration in England and applied, pursuant to s32 of the Arbitration Act 1996, to the English High Court seeking a declaration that the contract contained a valid and effective arbitration clause. The defendant alleged that it was not a party to any arbitration agreement and refused to participate in the arbitration. The defendant had also already commenced its own proceedings in the Italian courts, seeking an order that there was no valid and effective arbitration clause.

Conrad Walker and Helen Rowlands report on a recent High Court ruling clarifying the scope of ‘proceedings’ and ‘court’ in Articles 27 and 30 of the Lugano Convention

The Lugano Convention governs issues of jurisdiction and enforcement of judgments between EU member states and European Free Trade Association countries, other than Liechtenstein. A fundamental principle of the Convention is to limit the possibility of concurrent proceedings in different jurisdictions, thereby reducing the risk of irreconcilable judgments. The recent High Court ruling in Lehman Brothers Finance AG v Klaus Tschira Stiftung GmbH [2014] on the scope of ‘proceedings’ and ‘court’ in Articles 27 and 30 of the Convention is a pragmatic decision, consistent with the overall aim of the Convention.

Neil Jamieson reviews the new ‘buffer rule’ and recent Court of Appeal decisions: the end of post-Mitchell ‘zero tolerance’?

In just a few months, we have come a very long way since the now infamous decision of Mitchell MP v News Group Newspapers Ltd [2013], where, as most legal practitioners will be acutely aware, Master McCloud assertively decided to limit a party’s costs recovery to court fees, as a penalty for filing its costs budget six days late. The decision was a bold one, even in the post-Jackson era, but was firmly endorsed by the Court of Appeal, whose judgment has since been pored over, applied and referred to constantly by all those involved in court proceedings. Although the decision must be lauded as a welcome development in terms of fostering a new culture of efficiency and rule compliance (previously sorely lacking), it has however had some rather unfortunate side effects.

Nick Dent and Ruth Bonino examine the issues raised by the forthcoming changes to the right to request to work flexibly

From 30 June 2014, the right to request to work flexibly is expected to be extended to all employees, irrespective of their parental or caring responsibilities. The existing statutory procedure will be replaced with a statutory duty on employers to:

Nick Dent and David Prior draw out the lessons for employers from recent case law on investigations into potential disciplinary matters

An investigation into an employee’s alleged misconduct at work will go to the heart of any subsequent unfair dismissal claim. It is not always clear how much investigation to undertake, however, and getting it right is not always easy. A couple of recent cases highlight the pitfalls involved in failing to investigate enough. The worst-case scenario is a finding of unfair dismissal but nearly as bad is a claim which, although ultimately successful, swallows up precious management time and costs to defend.

The Court of Appeal has recently ruled on whether a verbal promise made at a staff meeting can be contractually binding, explain Ruth Bonino and Adam Lambert

The High Court and, more recently, Court of Appeal decisions in the ‘banker bonus’ litigation stemming out of the merger between Commerzbank and Dresdner in 2008 (Dresdner Kleinwort Ltd v Attrill [2013]) have received extensive media coverage. The decisions concern the question of whether verbal promises made to staff amounted to contractual obligations, so they provide important lessons for any business which makes verbal commitments to its employees.

James Major and Alice Duffy consider the implications of Walker v SITA Information Network Computing Ltd

According to a 2012 study by the Organisation for Economic Co-operation and Development, the UK is the fattest country in Western Europe, with 26% of all adults in the UK now obese. This means that obesity, which can result in severe health consequences, will increasingly become an issue for employers. Obesity is likely to increase an employee’s sickness absence, but does it also mean that the employee is disabled and therefore protected by disability discrimination law?

Employers should welcome the government’s positive response to the review of sickness absence, says Adam Lambert

The government’s Employer’s Charter is not a very helpful document. Despite the publicity surrounding its introduction in January 2011, it cannot expect to tell good employers anything they don’t already know in its two large-print pages. In particular, it grossly oversimplifies the steps involved in managing sickness absence.

Keith Conway looks at the new edition of the Protocol that is due to be adopted as part of the CPR in early 2012

The weaker prospects for commercial property continue to cause significant problems for both landlords and tenants at the end of leases, that contain significant repairing and reinstatement obligations. Landlords want the property returned to a good condition, or at least the cash alternative. Tenants want to minimise their expenditure and obtain early certainty. Both would prefer to avoid costly litigation.

With recent news of significant numbers of borrowers breaching their secured loan covenants, should surveyors and valuers be bracing themselves for a further surge of professional negligence claims? Neil Jamieson and Tom White investigate

Surveyors and their insurers have already seen an increase in the volume of PI claims following the economic downturn. The fact that surveyors and valuers have to maintain a minimum level of professional indemnity insurance cover means that they are often viewed as softer targets with deep pockets. The collapse in the property market, both residential and commercial, exposed a variety of transgressions, and it seems likely that surveyors, valuers and their insurers may not be out of the woods yet.