Last updateTue, 24 Feb 2015 5pm

Serle Court

Serle Court

Richard Walford looks at the future of notification orders

The dealings between Mr Mark Holyoake and the Candy brothers have caused a welter of accusation and counter-accusation: as might be expected in hard-fought and high-value litigation, there have been numerous interlocutory applications, one of which spawned an apparently new form of injunction, the notification order. So what is a notification order, and does it have utility in other commercial cases?

Kathryn Purkis examines the meaning of ‘United Kingdom’ in wills and trusts documents

In The Royal Society v Robinson [2015], Nugee J had to construe the following provision in a will made in 2009: that it should ‘extend only to property of mine which is situated at my death in the United Kingdom’. In fact, the testator held significant sums of money in certain offshore accounts in Jersey and in the Isle of Man, and which had been opened between 1996 and 2004, before the will was made. If these assets did not fall to be administered under the will, there would be a partial intestacy, as the only other will made by the testator was limited to his Swiss assets.

Khawar Qureshi QC reports on the success of the UK Bribery Act 2010 five years on

The international political will to investigate large-scale corruption allegations remains questionable. In the UK, the authorities were severely criticised following the decision (ostensibly of the director of the Serious Fraud Office (SFO)) in December 2006 to terminate the investigation into alleged payments of bribes to Saudi officials for the BAE arms deal known as ‘Al-Yamamah’.

What is and what is not a consent under s3 of the Prescription Act 1832 can be a tricky question to answer, as Andrew Francis finds out

Section 3 of the Prescription Act 1832 reads as follows (my emphasis):

The Competition and Markets Authority will be probing possible violations of UK competition law relating to estate agents’ fees. Suzanne Rab explains the CMA’s concerns

The Competition and Markets Authority (CMA) has announced that it will probe as a priority suspected anti-competitive agreements involving three companies and a trade association operating in property sales and lettings. The investigation targets possible violations of UK competition law relating to the setting and advertising of fees by estate agents. The CMA has concerns that the arrangements restricted choice for consumers and their ability to compare prices and value for money.

Andrew Francis reviews the Law Commission’s report and draft bill on rights to light, published at the end of last year

Questions and answers: part 1

Questions and answers: part 2

Questions and answers: part 3

Questions and answers: part 4

The last rights of light Q&A (part 4), published in PLJ327, ended with the promise that this article would examine in detail the particular factors present when deciding what is the proper remedy in rights of light disputes. That promise was overtaken by the Law Commission’s publication on 4 December 2014 of its report and draft bill, ‘Rights to Light’, Law Com No 356.

In the fourth of his continuing series, Andrew Francis considers how rights of light can be overriden, their abandonment and remedies in case of dispute

Questions and answers: part 1

Questions and answers: part 2

Questions and answers: part 3

Questions and answers: part 5

Andrew Francis explains how the Convention can be invoked to help the weaker party protect its costs in David and Goliath situations

Imagine the following chain of events. Canchester is a large cathedral city extending over about 5 sq m. It has a university and a specialist science park with an emphasis on research into acoustic engineering and lasers. A large redevelopment is proposed for the centre of Canchester, extending over 10 acres. The bulk of the redevelopment is to replace unattractive post-war buildings constructed where property had been destroyed by bombing raids in 1941. Most of the historic buildings, including the market hall and Georgian houses, and shops near the cathedral will be retained within the scheme. But some will be demolished with listed building consent. The scheme is highly controversial. Planning consent is to be obtained by the developer (Magnum Developments Ltd), and it can be assumed that this will be accompanied by environmental impact assessments, conservation area consents and proposed section 106 agreements. Canchester City Council (CTC) owns part of the site and will appropriate its land for planning purposes and then lease back those parts required by Magnum for the redevelopment. CTC has indicated that, if necessary, it will override adverse rights under s237 Town & Country Planning Act 1990. Those affected by the redevelopment have formed an action group called Canchester Residents Against Redevelopment (CRAR).

Andrew Francis considers the EUCJ decision in Groupement des cartes bancaires and its relevance to land agreements within Chapter I of the 1998 Act and Art 101 of the TFEU

It is over three and a half years since the removal of the exemption of land agreements from Chapters I and II of the Competition Act 1998 on 6 April 2011. Given the publicity surrounding the decision in Martin Retail Group Ltd v Crawley Borough Council [2013] (see ‘The Fire and Furnace of land covenants’, PLJ322, June 2014, p10) and the decision of Henderson J in Carewatch Care Services Ltd v Focus Caring Services Ltd [2014] (see my article ‘Restrictive covenants considered’ in PLJ324, September 2014, p24), property lawyers with an eye on competition issues returning refreshed from their summer holidays might be forgiven for thinking that all would be quiet on this front; at least for the moment.

How is light measured, how are damages assessed and how is an actionable interference established? Andrew Francis answers some pertinent questions relating to rights of light

Questions and answers: part 1

Questions and answers: part 3

Questions and answers: part 4

Questions and answers: part 5

Will restrictive covenants pass the tests under Chapter 1 of the Competition Act 1998? Andrew Francis outlines a recent case

Hot on the heels of the decision of HHJ Dight in Martin Retail Group Ltd v Crawley Borough Council [2013] (reported on in ‘The fire and Furnace of land covenants’, PLJ322, p10), the decision of Henderson J in the Chancery Division of the High Court in Carewatch Care Services Ltd v Focus Caring Services Ltd [2014] is another example of how competition law issues require consideration in the context of restrictive covenants affecting land.

Andrew Francis and Suzanne Rab reflect on the implications of an Indian competition law case on UK real estate development

India’s specialist competition appeal tribunal, the Compat, has upheld a fine of 6.3bn rupees (approximately €75m) that was imposed on a real estate developer by the Competition Commission of India (CCI). The issue of abuse of dominance in a real property context is relatively untested in the UK. But there are some straws in the wind, and a combination of competition authority guidance and issues arising from ‘off plan’ sales of flats could point the way to needing to consider applying the lessons from the Indian decision in the UK in future.

Andrew Francis and Suzanne Rab assess the first reported case on how competition law applies to land covenants

The town of Crawley lies on the western edge of the High Weald and 28 miles south of Charing Cross. This North-East corner of West Sussex appears to be an unremarkable spot for legal precedents to be made, yet it has become home to the first reported decision on the application of UK competition law to restrictive covenants.

Giles Richardson looks at the current approach of the English courts to trusts arising in commercial contexts

This article considers the High Court decisions in Re MF Global [2013] and Re English & American Insurance Company Ltd [2014], as well as the evolving understanding of the Re Benjamin [1902] and s57 of the Trustee Act 1925 jurisdictions, in particular in the context of trusts arising in commercial contexts.

Andrew Francis discusses Gudavadze v Kay, which sheds light on a rarely used jurisdiction of the court to pass over those who would normally be entitled to a grant of representation

The complex, lengthy and multi-faceted litigation that has occupied the courts in recent years, and which has sprung from the disputes over the estate of the wealthy Georgian businessman, the late Arkadi Partakashavili (known as ‘Badri’) who died in 2008, has recently produced an interesting and potentially useful decision of the Chancery Division of the High Court on a jurisdiction that is often overlooked. The jurisdiction barely fills seven consecutive pages in Tristram & Coote’s Probate Practice (30th ed). It occupies a few more in Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (19th ed). The cases on the jurisdiction seem, with a few honourable exceptions, to be antique. Many are unrelated to the modern world. In the present day, the need to take urgent steps to protect an estate, where there is no full grant of representation, will be crucially important, especially where there are disputes over the estate. Where such an estate may be only part of a worldwide set of assets, rights and claims, this provides the setting for this article, which was inspired by the decision referred to below.

Cuppage v Lawson is an example of how the Charitable Trusts (Validation) Act 1954 is working in practice, as William Henderson explains

At a technical level this decision of HH Judge Hodge QC, sitting as a judge of the High Court, illustrates the continued usefulness of the Charitable Trusts (Validation) Act 1954 more than 50 years after it was enacted. The Act only validates trusts that were created, or purportedly created, before 16 December 1952, but there were many institutions set up in the late 19th and early 20th centuries that have continued to operate perfectly innocently and well with invalid constitutions (the invalidity of which has only been discovered when something particularly momentous happens in the life of the institution). Following Hart J’s rationalisation of the way in which the Act works in Ulrich & ors v Treasury Solicitor [2005], the Act often now ‘does what it says on the tin’ and validates trusts that would otherwise be void; Cuppage & ors v Lawson & ors [2011] is an example.

Jonathan Harris considers the European and international aspects of Granatino v Radmacher and its aftermath

Granatino v Radmacher has attracted headlines as a landmark decision on pre-nuptial agreements in English law, but the facts were emphatically European and international in nature, involving a German national, a French national and a pre-nuptial agreement executed before a German notary and governed by German law. These cross-border elements greatly influenced the Court of Appeal and steeled its resolve to bridge the gap with EU states that gave far greater weight to pre-nuptial agreements. While the effect of the Supreme Court ruling may be to close that gap, the international aspects of the case were given notably less weight by the Supreme Court; this has the potential to increase cross-border tensions in the future.