Last updateTue, 24 Feb 2015 5pm

Mills & Reeve

Mills & Reeve

Claire Molyneux and Louise Spalding recap developments to date regarding further protection for victims of domestic abuse within children proceedings

When Theresa May called the general election, the government abandoned the Prisons and Courts Bill, which had included draft provisions preventing cross-examination of victims by the alleged perpetrators of domestic violence in private child law proceedings. Uncertainty followed about when, or indeed if, the provisions would be reintroduced. The Queen’s Speech on 21 June 2017 brought clarity. Alongside the Great Repeal Bill, and a plethora of ancillary legislation proposed to realise the UK’s withdrawal from the EU, there was confirmation that the provisions relating to cross-examination of victims by alleged perpetrators of domestic violence will now feature in a pared-down draft ‘Courts Bill’. Also announced was a draft Domestic Violence and Abuse Act (DVAA), which will be introduced during the current Parliamentary session.

Helen Prandy, Jenny Beresford-Jones and Ruth Smith consider the impact of NDA v EnergySolutions

One of the highest profile public procurement challenges brought over the past year is the case of Nuclear Decommissioning Authority v EnergySolutions EU Ltd [2017]. The large number of decisions in the various pieces of litigation which arose following EnergySolutions’ unsuccessful bid for a multibillion-pound contract for the decommissioning of nuclear sites in the UK have not only established some new law but also reinforced well-established principles of good practice, which are useful to consider when reviewing any evaluation exercise, whether as a bidder or as a contracting authority.

Claire Molyneux summarises 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 [2015], 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.

Jamie Walker and Katherine Souter swap notes on the competitive procedure with negotiation under the Public Contracts Regulations 2015

Have you ever tendered a public contract using the restricted procedure and found yourself with ‘clarification creep’ on price or contract terms bordering on the risky and potentially challengeable? Have you ever found yourself wishing you could just accept that revised risk allocation clause because it comes with a reduced price? Or that slightly alternative technical solution? Or that more attractive completion date?

Katherine Souter considers a recent decision on the impact of Reg 72

Regulation 72 of the Public Contracts Regulations 2015 (PCR 2015) sets out several situations in which, provided certain conditions are met, a public contract can lawfully be varied without triggering the requirement to run a new procurement process. Often the parties find that they need to change the scope of the services provided or extend the contract, and this can only lawfully be done without running a new procurement within the scope of the safe harbours contemplated by Reg 72.

Lucy Cooling and Sarah Wood give the lowdown on government proposals for tax planning

In July 2015, the government published consultation documents on the use of deeds of variation and also the extension of the Disclosure of Tax Avoidance Schemes (DOTAS) to inheritance tax. Responses to the consultations closed on 7 October and 10 September 2015 respectively.

Jenny Beresford-Jones and Sarah Hodgson consider the new rules relating to publication of procurement documents

One of the most common questions asked since the publication of the Public Contracts Regulations 2015 (PCR 2015) is: ‘Do we really need to have all the procurement documents ready “up front”?’

Alison Bull examines the rise of mediation in the family justice system and the market challenges facing family lawyers

In Prest v Petrodel Resources Ltd [2013] Lord Sumption said ‘courts exercising family jurisdiction do not occupy a desert island’. It is an observation that is particularly thought-provoking as we look at the current state of the family justice system, and the place lawyers occupy within it. It emphasises a point that has not been fully addressed by many in the legal profession: that the system is not immune to changes brought about by fundamental factors such as market deregulation and rationalisation, the effect of three recessions within 20 years and new models of business-ownership.

Jenny Beresford-Jones summarises the implications of the Small Business, Enterprise and Employment Act 2015 for procurement

It is now several months since the Public Contracts Regulations 2015 (PCR 2015) came into force, implementing the new EU Public Contracts Directive and bringing with them the biggest shake up of procurement law in a decade. Given these recent changes in the procurement landscape, procurement practitioners can be forgiven if the existence of the ‘other’ procurement regulations, which may well also come into force this year, has not yet hit their radar. This is not least because the new powers to make these further procurement regulations are concealed deep within the crevices of the lengthy and wide-ranging Small Business, Enterprise and Employment Act 2015 (the Act), the majority of which has nothing to do with public procurement at all.

Katherine Souter reports on Reg 113 of the Public Contracts Regulations 2015 and the payment of undisputed invoices by contracting authorities, contractors and sub-contractors

According to the Department for Business, Innovation and Skills’ report, ‘Late Payment: Challenging grossly unfair terms and practices’, evidence shows that small and medium businesses (enterprises which employ fewer than 250 people and which have an annual turnover not exceeding €50m, and/or an annual balance sheet total not exceeding €43m) are owed a total of £39.4bn and are waiting for an average of £38,200 in overdue payments.

Miranda Whiteley summarises recent guidance on costs from the Technology and Construction Court

We have had to wait for nearly two years for some guidance from the courts on the new proportionality test for costs introduced in 2013. It has come from the Technology and Construction Court (TCC) in Savoye v Spicers Ltd [2015] – no surprise there since the TCC, and in particular its former presiding judge Jackson LJ, has always been in the vanguard when it comes to case and costs management reform.

Ed Heaton examines recent developments regarding applications to vary periodical payments and the potential impact of pension reform

The continuing, steady trickle of reported cases relating to variation applications is a constant reminder to practitioners of the dangers inherent in periodical payments orders and of the fact that, in many cases, clients may be left feeling that fairness and finality are impossible bedfellows.

Helen Prandy considers the lessons to be learned from NATS

Although this sounds like the headline every holidaymaker dreads as they head for ski slopes or some winter sunshine, it is in fact a way for me to introduce the slightly less exciting subject of the Utilities Contracts Regulations 2006 (as amended) (the Regulations) and the subject of this article, NATS (Services) Ltd v Gatwick Airport Ltd [2014].

Andrea Lynch considers AIB Group (UK) v Mark Redler & Co Solicitors, which has lessons on equitable compensation for breach of trust

The Supreme Court has given judgment in AIB Group (UK) Ltd v Mark Redler & Co Solicitors [2014], and it has taken the opportunity to clarify the remedy available for breach of trust, with particular reference to commercial trusts such as those seen between lenders and solicitors. The decision is a very good one for solicitors, in particular for those dealing with conveyancing transactions where a bank’s monies are held on trust.

Ruth Smith and Jenny Beresford-Jones review the government’s approach to implementing the new EU procurement directive

Readers of this journal will have been keen to hear news of how the UK intends to implement what is the biggest shake-up in procurement law for a decade. The new EU public procurement Directive (the Directive) came into force in April 2014, giving the UK a two-year timeframe in which to implement it.

Helen Prandy charts the rise and fall of English common law principles in procurement challenges

All in all, 2014 was an interesting year for those involved in procurement disputes, with several interesting themes emerging. For example, one issue in procurement disputes which I expect to see more of, particularly in the utilities sector, is further exploration of the complex relationship between the principles of EU competition law and the principles of EU procurement law.

In the conclusion to a two-part analysis Jane Booth sets out methods of enforcing a lump sum order

This article follows the back-to-basics guide to lump sum orders in FLJ141 (‘Dual purpose’, p19-21) and discusses enforcement and steps that can be taken to reduce the need to commence proceedings.

Kat Souter explores the implications for the construction industry of the new procurement directive

The new EU directive on public procurement came into force on 17 April 2014 (the directive). Member states have two years to implement the directive into national law and the Cabinet Office has chosen to fast-track the implementation of the directive in England, Wales and Northern Ireland. The directive covers the procurement of goods, services and works. Judging by the title of the draft Public Contracts Regulations 2015 (the draft regulations), we imagine that they will come into force early next year. This article will look at the Cabinet Office’s consultation on UK transposition of new EU procurement directives and the draft regulations in the context of public works contracts: what will the changes mean for the construction industry?

In the first of a two-part back-to-basics guide Jane Booth explores the types of lump sum order that may be made, together with drafting tips and practice points

On divorce, dissolution, nullity or judicial separation, the court has jurisdiction to order one party to pay a lump sum for the benefit of their spouse or a child as specified pursuant to ss23(1)(c), 31(7A)-(7F), Matrimonial Causes Act 1973 (MCA 1973) and Sch 5 to the Civil Partnership Act 2004.

Caroline Bywater and Jack Robinson provide an overview of the community infrastructure levy

Part 11 of the Planning Act 2008, which introduced the community infrastructure levy (CIL), tells us that it is a levy whose overall purpose is to ensure that costs incurred in supporting the development of an area can be funded (wholly or partly) by owners or developers of land, in a way that does not make development of the area economically unviable (s205(2)). The details for how and when CIL may be charged are set out in the Community Infrastructure Levy Regulations 2010 (the CIL Regulations), as already amended a number of times.

Jenny Beresford-Jones looks at a recent case on time limits

Readers will be aware that under UK law, generally, a procurement challenge can only be brought if it is made within 30 days of the date the claimant first had knowledge (or ought to have first had that knowledge) of the breach being complained of.

Anna Moore sets out the next stage in the simplification of trust tax charges

In December 2013, HM Revenue & Customs (HMRC) published a summary of the responses received to their second consultation on the subject of ‘Inheritance tax: simplification of trust charges’. This is the latest in a series of documents addressing the following three issues applying to relevant property trusts:

Jane Booth analyses the factors the courts will take into account when considering non-matrimonial assets

The decision in G v B [2013] is a reminder that where there are substantial non-matrimonial assets a financial award may be determined by the parties’ needs without reference to the sharing principle. However, caution should be taken as each case turns on its particular facts. This article explores the judgment of Bruce Blair QC, sitting as a deputy High Court judge, in G v B and sets out the current position in relation to non-matrimonial assets.

Anna Moore discusses the pros and cons of the recent HMRC consultation paper on the simplification of tax for trusts

The calculation of ‘periodic’ and ‘exit’ charges on property within ‘relevant property trusts’ is notoriously difficult, with not only strict requirements relating to the establishment and use of historic data but also complex calculation necessary to arrive at the eventual charge. While there are undoubtedly many professionals (and perhaps lay trustees) who are very comfortable with the current rules, there are some trusts where the requirements add costs and disproportionate complexity.

Miranda Whiteley looks at recent developments on mistaken parties

There is a fine line between the duty to do the best for your client and taking an unfair advantage of the claimant. This dilemma for a defendant’s solicitor usually happens pre-action, when the claimant is working out who to sue and may be asking for an extension of time for service. It is particularly acute where potential defendants are linked in some way, whether as part of a group of companies, or where a partnership has become an LLP.

Katherine Souterconsiders the efficacy of pre-procurement market testing

Can a contracting authority carry out pre-procurement market testing? Yes it can – as long as the market testing is carried out in a way that treats all participants equally, does not discriminate and makes sure that the same information is given to all potential suppliers. The Cabinet Office positively encourages it. If this is so, why have contracting authorities in the past been reluctant to do it? In fact, things are getting better as more contracting authorities embrace pre-procurement market testing. Perhaps the government can be credited with this change, maybe alongside the publication at the end of last year of the proposed new public procurement Directive?

Kevin Calder assesses the potential pitfalls in standstill letters

The concept of a standstill letter goes back to 1999, and a court decision known as the Alcatel case. That case decided that under EU law there must be an opportunity for suppliers to review and if necessary challenge a contract award decision under the public procurement regime before the relevant contract is entered into.

David Catchpole and Alexandra Clark analyse Lawie to discern the court’s current approach to mistake and rectification

For many, creating a settlement requires a great deal of thought, not least because it is extremely difficult to reverse the transaction once it has been executed.

Ruth Smith and Jenny Beresford-Jones investigate the trickier issues of framework agreements

Part 1 - 'You've been framed', POJ10, January/February 2013

This is the second part of a two-part article, in which we shall discuss tricky issues commonly encountered when dealing with frameworks, and suggest how contracting authorities can navigate safely through these. We also look ahead at the European Commission’s latest proposals for the new EU procurement Directive (the New Directive) and the changes to the framework regime which that may bring.

Julia Rangecroft concludes her two-part series on the best approach to deathbed planning

The first article in this series, ‘Conserving family wealth’, TELTJ143, January/February 2013, p25, looked at some of the practical steps to consider upon the scenario of deathbed planning. The steps included looking at annual exemptions and small gifts, normal expenditure out of income, gifts for maintenance of the family and maximising reliefs. This article will look at other IHT mitigation measures: spouse/civil partner exemption and use of the nil-rate band; and death in service, pensions, critical illness and life insurance provisions. A reminder of the complete checklist to be considered is set out on p28.

In the first of a two-part article, Kat Souter and Ruth Smith discuss frameworks and their role in procurement

Framework agreements are not a new concept and, when used correctly, have the potential to deliver significant savings for the public sector in terms of both time and cost. Their key advantage is that they provide a lawful mechanism to award individual contracts without, on each occasion, having to carry out a separate free-standing EU public procurement exercise.

In the first of two articles, Julia Rangecroft sets out the best approach to deathbed planning

Mitigating capital taxes is frequently a financial planning objective, and, in the context of inheritance tax, it is best done as part of a long-term process, allowing for the use of more than one nil-rate band and the making of lifetime exempt gifts. This does not mean, however, that deathbed planning should be seen as a poor substitute for lifetime planning. The purpose of this article is to establish deathbed planning as an equally important partner in the succession process. Deathbed planning is a tax planning opportunity that stands alone, separated from lifetime planning by the certainty of death. Knowing the timescale within which death will occur, and the order in which family members will die, removes two uncertainties that make long-term planning so difficult. Removing the uncertainty of when, and in what order, death will occur fundamentally impacts on the client’s objectives and the existing succession plan. The certainty may well give rise to tax-planning opportunities.

Guy Rendell and Matthew Hansell discuss the tax-planning opportunities that can arise upon divorce

As all private client practitioners know, trusts offer considerable benefits: flexibility, protection, control and tax efficiency. Unfortunately, to take advantage of these benefits and fund lifetime trusts there is the bulwark in the shape of an immediate 20% charge to inheritance on assets entering most lifetime interest in possession and discretionary trusts in excess of the inheritance tax free nil rate band of £325,000 (£650,000 for married couples as joint settlors). This can act as a significant deterrent against making significant lifetime gifts into trust.

Kevin Calder summarises potential mechanisms to shorten the procurement process

In the modern world, it can sometimes feel as though everything is urgent, and this is especially the case in relation to selection procedures under the Public Contracts Regulations 2006 (the Regulations).

Ellie Foster summarises the Supreme Court decision in Jones v Kernott and considers its impact

The Supreme Court has been tasked with an unusually high amount of family work in recent years, with the decision in Jones v Kernott [2011] the latest in a line of family cases to receive the justices’ consideration. The decision has been hotly anticipated by practitioners, with much commentary ensuing, but is it a truly landmark case?

Caitlin Jenkins asks the question ‘does non-disclosure pay?’

The case of Hutchings-Whelan v Hutchings [2011] serves as a reminder to practitioners of the difficulties of dealing with non-disclosure particularly when the non-discloser is a litigant in person. The case comes at a time when the eighth annual matrimonial survey from Grant Thornton shows that 48% of family lawyers believe that individuals are likely to conceal assets during divorce proceedings following the Imerman v Tchenguiz [2010] ruling. It also comes at a time when many more litigants in person are appearing in the family courts.

Deborah Clark and Matthew Short give an update on HMRC’s stance on tax and employee benefit trusts

This article comments on HMRC’s Brief 18/11, which gives its views on the inheritance tax and income tax treatment of contributions to an employee benefit trust (EBT) by a close company.

Deborah Clark provides an update on family investment companies

Family investment companies (FICs) have been discussed for sometime now as a structure that offers a viable alternative to a relevant property trust. At first, however, they were viewed by many as not as attractive a structure as a partnership which was transparent for tax purposes due to the double tax effect of using a company. But, since 2006 there have been some significant changes in tax rates, which result in individuals now paying much more tax and companies paying less tax. The outcome of these changes has meant that the pendulum has now swung firmly in favour of FICs over partnerships. In fact, so much so that FICs are now being viewed not simply as an alternative to a trust that facilitates estate planning, but also as a suitable structure to own investments.

Jessica Craigs takes a topical look at privacy, phone hacking and computer misuse

It was with morbid fascination that I listened to a radio programme discussing the merits of a website offering extra-marital affairs. The speaker (a subscriber to the website and embarking on her third affair) described how her marriage was somewhat stale and, while she didn’t want to leave her husband, she wanted some ‘spice’ back in her life.

In the conclusion to his two-part analysis Andrew Moore sets out practical points for dealing with an application under Schedule 1 to the Children Act 1989

In part one we looked at legislative and procedural provisions together with trust and tax issues. This part will focus on practice points and practical considerations including how a property that is the subject of Schedule 1 proceedings may be held and responsibilities in relation to the property.

In the first half of a two-part analysis, Andrew Moore discusses practical and tactical considerations when providing a home under Schedule 1 to the Children Act 1989

Given the diverse nature of the modern family, this article will refer to participants in litigation as ‘applicant’ and ‘respondent’ without reference to gender and/or their stereotypical parenting roles. Practitioners must also bear in the mind that the applicant might well be the child if they are over the age of 18 (Schedule 1, s2 of the Children Act (CA) 1989, but also consider s2(3)) or a guardian, a special guardian or a person in whose favour a residence order is in force with respect to a child (s1(1)).

Matthew Hansell provides pointers on the disclosure of tax avoidance schemes and IHT

In the 2004 Budget, it was announced that the government would introduce:

David Salter contemplates recent legislative changes to pension provisions

On 6 April 2011, not only did we see the new pensions procedures in the Family Procedure Rules 2010 (FPR 2010) come in to effect, but also the eight new sections introduced into the Matrimonial Causes Act 1973 (MCA 1973) by the Pensions Act 2008 (PA 2008). Each of these areas contains much of importance with which the family lawyer should be familiar. As will be seen, the changes brought about by PA 2008 have resulted in further new procedures being introduced in the FPR 2010.

Nicola Criscione looks at the impact of the FPR 2010 on procedure in children proceedings

This article looks at the new Family Procedure Rules 2010 (FPR 2010) that came into effect on 6 April 2011 in respect of private law proceedings relating to children. The rules are mainly contained in Part 12 FPR 2010, which is divided into seven chapters. The article will also consider Part 16 FPR 2010, which deals with the representation of children and reports in proceedings involving children so far as they apply to private law proceedings.

Ellie Foster reflects on the harmonisation of the rules relating to appeals and potential pitfalls under the FPR 2010

The procedure pre-6 April 2011 for appeals in family proceedings could be somewhat confusing. A complicated mix of the Family Proceedings Rules 1991 (FPR 1991), the Rules of the Supreme Court 1965 and the County Court Rules 1981, not to mention the Civil Procedure Rules 1998 (CPR 1998), ensured the process was less than straightforward. So the arrival of the new Family Procedure Rules 2010 (FPR 2010), with the much-trumpeted aims of harmonisation and simplicity by way of one set of clearly expressed rules for all family proceedings, can surely go some way towards streamlining the appeals process.

Simon Blackburn examines livestock owners’ legal responsibilities to the public

The case of McKaskie v Cameron (2009) serves as an illustration that defendants to personal injury claims are just as vulnerable when answering on behalf of their livestock as they are when facing the consequences of their own actions.

Meredith Thompso n investigates the evolving, and slightly contradictory, position of same-sex parents

Although, at the time of writing, we still await the first reported decisions on the treatment of civil partners in ancillary relief proceedings, several cases in 2010 considered same-sex couples and their status in relation to other aspects of family law including financial provision for children, adoption and the meaning of family relationships and child maintenance.