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Last updateTue, 24 Feb 2015 5pm

Charles Russell Speechlys LLP

Charles Russell Speechlys LLP

Thomas Klemme and Oliver Auld highlight a clash of trust law concerning trusts over foreign assets, which also has lessons for liquidators

The recent Supreme Court judgment in the case of Akers v Samba Financial Group [2017] (Akers v Samba) has been notable for trust practitioners largely due to the complex conflicts of trust law issues which were raised between the parties. In particular, the judgment provides helpful commentary on the Hague Convention on the Law Applicable to Trusts and on their Recognition (the Trusts Convention) and certain English law principles concerning trusts of foreign assets and transactions over trust property. However, it is perhaps insolvency practitioners who will be most interested in the Supreme Court’s ruling in this case, which confirmed that the power of the English court under s127 of the Insolvency Act 1986 to declare a disposition of property belonging to a company after it has been placed in liquidation to be void did not apply to the sale of property, which was held for the company on trust.

James Lister and Fenner Moeran QC analyse a case that demonstrates how a Beddoe order is applied in practice

This July saw the culmination of a long-running series of cases in the Chancery Division concerning the Albert Arms public house in Esher, Surrey. The litigation was started in September 2014 and has encompassed various first-instance and appeal hearings to bring it to the flurry of hearings in July 2016.

Josh Green provides a refresher on why, when and how an application should be made for maintenance pending suit

This article sets out the practical considerations that family lawyers should take into account when making an application for maintenance pending suit (MPS). When instructed by a financially weaker party who faces uncertainty and inadequacy by way of financial provision until a final settlement is reached, family lawyers are confronted with a difficult decision. At what stage is it correct to seek the court’s intervention, if at all? How will the court deal with such applications? Of course similar challenges are faced by practitioners acting for the potential respondent to an application who will not, or indeed can not, provide the interim provision sought by their spouse. This article will provide some guidance for this situation.

In Blades v Isaac [2016] the trust fund paid a high price for the trustees’ initial refusal to disclose accounts. Tamasin Perkins analyses the judgment

When it comes to disclosure to beneficiaries, how far can a trustee go astray before it is ordered to pay its own costs personally or pay the opposing party’s costs from its own funds? Pretty far, the 2016 decision of Blades v Isaac tells us, especially when the trustee has breached its duty of disclosure of information only, rather than committed any breach of trust.

James Souter reviews a case highlighting the importance of conduct of the parties when considering whether an injunction or damages is the most appropriate remedy

The development industry will be watching with great interest in July this year when the Court of Appeal reviews a decision from the Oxford County Court which could have a significant impact on future rights to light cases. Given that possibility it is surprising the original decision has not received more publicity to date. Perhaps this is because the case related to a small development in High Wycombe but the issue before the court was one of the utmost importance to developers throughout the country. The principal issue before the court was the vexed question of the circumstances in which it will grant an injunction in favour of a neighbouring owner where a developer has breached their right to light.

Malcolm Dowden looks at how the internet of things may shape real estate and the relationship between landlords and tenants

Futurologists have for decades been predicting the upending of the commercial real estate market by technology. Based on those predictions, the proliferation of internet connectivity should by now have made office blocks obsolete, overtaken as the norm by home-working and digital nomads. Physical retail space should, by now, have been transformed into leisure destinations, combining showrooms serving online retail with a range of family activities. Landlords’ income streams for those shopping destinations should by now be based on customer entry fees, while commercial rents in that sector should have been consigned to the past. That, at least, was part of the picture outlined by the Financial Times in February 2000.

David Marsden assesses a recent High Court case concerning financial prejudice suffered by administrators and forfeiture

The recent case of Lazari Investments Ltd v Saville [2015] states for the first time that financial prejudice suffered by administrators may not necessarily be enough to prevent forfeiture, and that loss of rent is not the only prejudice landlords can suffer. It is also a reminder to administrators of the main principles under a pre-pack administration, this time in the context of the administration of Strada.

Penelope-Jane Gibbs discusses the important procedural requirements for tenants of commercial premises to consider before the expiry of their lease

If a tenant of commercial premises has a lease which is nearing the end of its contractual term, or if a tenant is considering serving a tenant’s notice to quit, or exercising a tenant’s break option, there are a number of very important issues to carefully consider and planning ahead is crucial.

Oliver Auld and Tamasin Perkins consider Birdseye v Roythorne & Co [2015], which concerns the waiver of privilege by executors

The decision of the High Court in Birdseye v Roythorne & Co [2015] (Birdseye) has established that one of two or more executors is capable of acting unilaterally to waive privilege in legal advice obtained under a joint retainer on behalf of the estate, applying the general rule that executors are capable of acting unilaterally on behalf of the estate and binding their co-executors to their actions. The general rule contrasts with the law in respect of trustees, who must act unanimously if their actions are to be binding on the trust. In part due to the different legal origins in the two roles, executors are not governed by the same rules and as a result may therefore find themselves bound by their co-executors’ actions (and their consequences), whether or not they were aware of or consented to them.

Rory Ashmore assesses the impact of the new light touch regime

On 9 March 2015, the Cabinet and Crown Commercial Service (CCS) issued guidance on a new ‘light touch regime’ (LTR) for the procurement of contracts for certain social, health and education services. This new regime, although originally resisted by the UK, is provided for under the EU’s new Public Procurement Directive EC/24/2014 (the 2014 Directive) and has now been implemented into UK law by the Public Contracts Regulations 2015 (which came into force on 26 February 2015).

With the compliance deadline for the Energy Savings Opportunity Scheme Regulations 2014 coming at the end of the year, Malcolm Dowden assesses their implications

Energy performance and efficiency has become a major regulatory and compliance issue for business in the UK. Since 2008 energy performance certificates (EPCs) have been required on the construction, substantial alteration, sale or letting of most commercial buildings. Since 2010 energy consumption has been subject to the CRC Energy Efficiency Scheme, which requires the purchase and surrender of allowances to cover specified fuels. Now, businesses must also consider whether they fall within the stringent, but poorly drafted, requirements of the Energy Savings Opportunity Scheme Regulations 2014 (ESOS).

Josh Green examines the courts’ approach to disagreements between parents as to religious upbringing

The prickly issue of religion and parenting was thrust into the full glare of the media spotlight earlier this year (Daily Telegraph, 19 January 2015), when a father was ordered to attend Christmas mass with his two sons during the time he was to spend with them in accordance with a court order. Describing the decision of the judge as ‘bizarre’, the father launched an unsuccessful appeal and, thus, we must presume that on one snowy Sunday morning, a Midlands-based Catholic priest found among his congregation a self-proclaimed atheist and his two young children, one of whom his father asserted had already expressed a clear lack of belief; perhaps not the most captive audience a member of the clergy may wish for.

John Sykes looks at the myths and reality of mediation and the public sector

I first represented a client in a mediation in 1999. It was all about how a telecoms provider would be paid for use of telephones on hot desks by a major firm of accountants. Hot desks were new and so was mediation, and the business world was suspicious of both. Since then mediation has become the universal panacea for conflict. Hot desks are still viewed with suspicion!

What counts in law as an effective signature? Malcolm Dowden investigates in light of recent case law

Apart from temper tantrums and fine food, King John, Henry VIII and Gordon Ramsay also have in common a place in the law relating to signatures.

Dominic Lawrance and Mark Summers review the impact of the UK/Swiss tax co-operation agreement two years on

The UK/Swiss tax co-operation agreement (TCA), or ‘Rubik’ agreement, was brought into force on 1 January 2013. It was intended to satisfy the demands of the UK government that Swiss banks should stop facilitating tax evasion by UK residents, including UK residents who could benefit from assets custodied in Switzerland and held by non-resident entities such as offshore companies, foundations and trusts.

Christopher Bushnell discusses what employers and their advisers need to know about the EAT’s latest ruling on holiday pay

Over recent years, a series of cases about holiday pay has made what was once a relatively straightforward issue into an increasingly complex one presenting many practical difficulties. Employers using established holiday pay calculations as set out in legislation now find that this interpretation of the law was wrong and they have been in breach.

Rachel Donald discusses the consequences of deception in divorce proceedings and the vulnerabilities of the current procedure

In Rapisarda v Colladon [2014] Sir James Munby, president of the Family Division, handed down a judgment that exposed what he described as a ‘conspiracy to pervert the course of justice on an almost industrial scale’ in the English family courts. The decision deals with the dismissal of more than 180 separate divorces. The case was brought by way of a plea from the Queen’s Proctor alleging fraud in every case, using their inherent power to intervene in each set of proceedings under s8, Matrimonial Causes Act 1973 (MCA 1973).

Claire Curtis considers the rise of shareholder activism and how to avoid costly court proceedings

Shareholder activism has been on the rise in the UK over the past five to ten years. It reached a peak in 2012 resulting in the early months being branded the ‘Shareholder Spring’. For many companies and directors this was a long overdue wake-up call, with shareholders voicing their frustrations publicly and making it clear that they are no longer prepared to be silent investors. Dissatisfaction has been brewing since the economic downturn and subsequent fall-out from the financial crisis in 2007 and it has forced companies, notably listed ones, to actively engage with their shareholders.

James Souter reports on a case which threw up some novel arguments

After a long-running battle for control of Pimlico’s Dolphin Square, US private equity firm Westbrook Partners won a landmark enfranchisement case paving the way for them to purchase the freehold. The lengthy 158-page judgment in Westbrook Dolphin Square Ltd v Friends Life Ltd [2014] was handed down on 17 July 2014, containing detailed analysis of some very difficult legal and valuation concepts. Westbrook, the claimant, as nominee for the tenants claiming the freehold, succeeded in defeating all seven grounds of the challenge raised by the defendant freeholder, Friends Life. Subject to any appeal by Friends Life, the way is now clear for Westbrook to proceed with the purchase of the freehold at a price to be agreed or, failing that, determined by the Property Chamber of the First Tier Tribunal. The price will comfortably be the largest premium ever paid under the Leasehold Reform, Housing and Urban Development Act 1993 and could be anything up to £200m. Therefore, irrespective of how Friends Life responds to the judgment, the claim is bound to rumble on for many years to come. The valuation aspects of the claim alone are almost certain to be pursued to the Upper Tribunal and, quite possibly, beyond that to the Court of Appeal.

Julia Staines reports on a significant judgment in the Court of Appeal

Hot on the heels of the milestone of 100 ‘post-Mitchell’ cases came the Court of Appeal’s judgment in three appeals, handed down by the Master of the Rolls himself in Court 71 at 2pm on 4 July 2014.

Emma Humphreys highlights a case concerning modification under s84(1)(aa) Law of Property Act 1925

Re Kerai Upper Tribunal (Lands Chamber) [2014] concerned the proposed erection of a detached house in place of a former lodge. The applicant sought to have a restrictive covenant modified so as to permit the construction of the proposed house without the approval of the objector.

Pullan v Wilson clarifies what is reasonable and proper charging by the professional trustee. Aimee West and Tamasin Perkins investigate

The recent judgment in the matter of Pullan v Wilson [2014] is an important warning to professional trustees who charge for acting in that capacity and to trust beneficiaries. In the case His Honour Judge Hodge QC had to consider the reasonableness of the remuneration charged by a professional trustee to a number of family trusts and whether a beneficiary was debarred from raising a challenge if he had acquiesced to the rates charged.

Ongoing uncertainty about employers’ duty to collectively consult staff about redundancies and business transfers means that the law in this area remains complex, warn Jessica Shemmings and Clare Davis

Over the past year, there have been several cases, as well as legislative changes, which affect employers’ collective consultation obligations in respect of redundancies and transfers of undertakings. This article provides a round up for practitioners.

Emma Humphreys assesses some recent cases involving rights of way disputes

A person whose property has the benefit of express rights granted in a conveyance may usually feel reasonably secure about their ability to enjoy those rights. However, anyone who advises on such matters regularly will know that the terms of such rights are not always as clear as one might like and/or that difficult neighbours will always try to find holes to exploit or take an obstructive interpretation. Some recent decisions of the Court of Appeal have shown that such neighbours should think carefully before incurring costs on litigation.

The Court of Appeal has found that the wording of provisions in the Equality Act was a drafting error, write Kirsti Laird and Clare Davis

Since the introduction of the Equality Act 2010 (EqA), there has been considerable confusion and uncertainty as to whether the victimisation of former employees is unlawful or not. Subjecting a former employee to a detriment because they had raised a discrimination complaint (victimisation) had been unlawful under previous legislation and Parliament had no apparent intention to change this position. Nonetheless, the specific wording of the EqA appeared to remove the right to bring this claim.

Michael Wells-Greco and Philippa Turner give the lowdown on what to consider when advising clients on same-sex marriage

Historically in this country a legally valid marriage could only be entered into between a man and a woman. Public policy has traditionally been in favour of this definition of marriage based on the belief that it preserves the family unit. However, the debate surrounding the formalisation of same-sex relationships is not a new one and same-sex couples in the United Kingdom have been able to register their relationship as civil partnerships since 5 December 2005, when the Civil Partnership Act 2004 came into force.

Rachel Donald asks whether the enforcement provisions of r33 of the Family Procedure Rules 2010 can be undermined by a variation application

The introduction of the general enforcement application in family proceedings under r33.3 of the Family Procedure Rules 2010 was a welcome step towards simplifying the enforcement process and minimising costs to unpaid parties. Previously, the enforcement methods available to debtors were governed purely by civil rules lead by the Rules of the Supreme Court 1965 and the County Court Rules 1981. However, it was widely acknowledged that civil remedies did not lend themselves well to family proceedings. Parliament’s intention was to provide a one-stop-shop application to empower the family courts to determine a variety of enforcement methods after considering the financial resources of a party. Three years on it is possible to now consider the impact of the legislative reform and whether the simplified process has had the desired effect in context of related and competing family and civil legislation.

Emma Humphreys discusses two recent cases where the Upper Tribunal took a flexible approach to the modification of a restrictive covenant

Two recent decisions of the Upper Tribunal offer interesting illustrations of its approach towards applications for the discharge or modification of restrictive covenants. In The Trustees of the Green Masjid and Madrasah [2013], the applicants sought to persuade the tribunal to allow modification of the covenant despite their sustained and wilful breaches of the restriction. In Re Tate [2013], the tribunal considered whether a neighbour was entitled to rely upon the ‘practical benefit’ arising from the covenant of demanding a monetary payment in return for allowing the proposed development of the applicants’ site to proceed.

Julia Staines and Adam Welsh look at the costs of budgetary non-compliance

In November 2008, Sir Anthony Clarke (then Master of the Rolls), appointed Lord Justice Jackson to review the cost of civil litigation, and to make recommendations in order to ‘promote access to justice at proportionate cost’.

Kirstie Gibson considers the court’s approach where a Schedule 1 application is made by a non-resident parent

In N v C [2013], an interesting decision regarding an application under Schedule 1 to the Children Act 1989 (ChA 1989), two key issues arose:

Richard Flenley and Joe Edwards review a case that indicates the court’s current stance on the repayment of sums on the valid exercise of a break clause

There has been a line of cases – most recently PCE Investors Ltd v Cancer Research UK [2012] and Canonical UK Ltd v TST Millbank LLC [2012] – which have held that, while dependent on the precise wording of the lease and the key provisions in question, to be able to comply with a condition in a break clause requiring payment of rent, if the break date falls between rent payment dates, the whole quarter’s rent is due and no subsequent apportionment is permitted.

The grant of a lease may now be the ‘transfer of a business as a going concern’ for VAT purposes. Jessica Ganagasegaran reports

Following the taxpayer’s successful appeal in Robinson Family Ltd v HMRC [2012], HMRC now accepts that, in some cases, the grant of a lease may comprise a transfer of a business as a going concern (TOGC) for VAT purposes. Since stamp duty land tax (SDLT) is computed by reference to VAT-inclusive consideration, the change in VAT treatment may also enable some tenants to whom leases have previously been granted to reclaim overpaid SDLT.

Emma Humphreys and Richard Flenley examine a case highlighting the different considerations that apply when a court is considering a claim for an injunction and a claim for declaratory relief

A recent High Court decision has illustrated the differing tests that apply when the courts have to assess how to exercise their discretion as to whether or not to grant an injunctive or declaratory remedy, as sought by a claimant in advance of a wrong being committed. It also highlights how specific circumstances can make a real difference when considering such complaints.

Emma Humphreys gives the lowdown on a new criminal offence for squatting in residential buildings

There has been increasing concern about the cost and inconvenience caused by squatters when they occupy property, not least because of the apparent inability of the police to assist property owners and occupiers when such problems occur. As a result, owners and occupiers have too often had to spend considerable sums in seeking to evict squatters, repairing damage and cleaning up the debris they leave behind.

A recent decision has extended a landlord’s duty to consult on proposed works. David Haines and Tanya Pinto explore the implications

It has long been established that landlords of residential premises (or mixed use premises) must ensure that they comply with the terms of the residential leases and with legislation governing service charges. Any failure to comply with lease terms and the relevant legislation will prejudice a landlord’s ability to fully recover service charge expenditure from lessees.

Peter Levaggi and Alison Crabbe examine a case where a local authority tried unsuccessfully to evade its contractual obligations

It is an unattractive feature of public law that allows public bodies to escape contracts with private parties by evoking their own lack of capacity.

Page v West [2010] elucidates the circumstances in which trustees should seek guidance from the court, as Olivia Knowles and Lynne Gregory explain

The application before the court was brought on behalf of Christopher John Page and Nigel Morton of Charles Russell LLP as court appointed trustees of the trust of the estate of Frank West (deceased) for permission to sell a property known as West’s Yard (the Yard).

Jennifer Hotston and Sarah Chiappini consider the different ways of structuring a transaction when a charity is selling or developing land

If a charity is considering selling or developing land in order to raise funds, there are various ways of structuring the transaction to enable the charity to get the best deal possible in the circumstances.

Jessica McGoldrick explains what they are they and why they are important in property litigation

The courts want parties to settle their disputes. Those who do not attempt any realistic settlement can expect the court to penalise them with costs orders and requirements to pay interest. One way of attempting settlement is by making a Part 36 offer. The name comes from Part 36 of the Civil Procedure Rules, which governs the specific mechanisms for these settlement offers.

Emma Humphreys and Andrew Francis assess a case where the court was required to interpret consents given in a 1967 conveyance

Rights of light are often an issue for property owners keen to preserve the value of their assets by protecting the right to develop. In the recent case of CGIS City Plaza Shares 1 Ltd v Britel Fund Trustees Ltd [2012], the court was asked to examine the extent to which successors to the original owner of a property were permitted to interfere with light received by the neighbouring property and the operation of rights to light arising as a result of coincidence between old and new apertures.

Emma Humphreys outlines the Law Commission’s Consultation Paper on proposed changes to the Code and urges property owners and occupiers to get involved in the consultation process

All property owners and occupiers are potentially affected by the rights and protection conferred by the current provisions of the Electronic Communications Code on those who provide electronic communications services/networks. The Law Commission has published its Consultation Paper regarding possible changes to the Code. This is therefore an opportunity for those with property interests to report to the Law Commission on problems encountered in dealing with Code operators, as well as putting forward suggestions for improvements to the current regime.

A recent case has clarified the position of the landlord when dealing with a tenant in administration. David Marsden provides some background

This year there has been a spate of high-profile retailers entering administration. In the first part of 2012 Blacks, Peacocks, Clintons, La Senza, Game and Past Times have all gone into administration. This is often seen as an indication of the state of the retail market, in particular the high street. While this is no doubt true, administrations are often also used as a restructuring exercise.

Emma Humphreys and Rachel Fletcher review the decision in Humber Oil Terminals Trustee Ltd v Associated British Ports [2012]

In the latest in a series of judgments in the litigation between Humber Oil Terminals Trustee Ltd (HOTT) and Associated British Ports (APB), the High Court decided the interim rent payable under the lease of property described as an oil jetty, which stretches about 1 km into the Humber Estuary and comprises seven berths for ships (the Oil Jetty Lease).

Recent case law highlights the growing number of claims being brought by lenders against valuers in the downturn. Peter Levaggi investigates

The volatile property development sector has led to increased pressure on surveyors. The problem arises in relation to the valuation of distressed property where there are:

Lyndsey West and James Lister revisit cohabitants’ property interests on separation in the Supreme Court decision in Jones v Kernott

The Supreme Court decision in Jones v Kernott [2012] has again highlighted the difficulties of ascertaining the respective beneficial entitlements of unmarried partners in a home that they have purchased together. When married couples divorce the Matrimonial Causes Act 1973 provides a framework for the division of their property, including the matrimonial home. There is similar provision in relation to civil partnerships. Unfortunately, as yet there is no corresponding statutory framework to deal with the situation when unmarried partners go their separate ways. Parliament’s failure to legislate in this area has been widely criticised, including by Lords Wilson and Kerr in their judgments in Jones. The problem is particularly acute if (as will often be the case) the parties have not expressly agreed their respective beneficial interests and there is no evidence of their intentions in this regard. With increased home ownership, house price inflation over recent decades and lengthier periods of cohabitation, these difficulties are likely to recur.

Employers need to take care when monitoring employees or hiring private investigators to gather evidence about their activities, warn David Green and Caroline Buckley

In a recent case, an employment tribunal found an employee had been unfairly dismissed when his employer relied on evidence in the form of surveillance film to dismiss him for gross misconduct. In Pacey v Caterpillar Logistics Services (UK) Ltd [2011], Mr Pacey, a forklift truck driver, had been signed off sick due to a back injury following an accident at work. The company’s insurers arranged for a private investigator to film him as they were suspicious about whether the accident had been genuine. When the footage showed him engaged in various activities such as walking his dog, carrying shopping and driving his car, he was dismissed for gross misconduct for falsely claiming sick pay while being fit for work.

Kirstie Gibson studies the courts’ approach to pre-acquired wealth in a long marriage

In Charman v Charman [2007] the court said that for nearly five years, since White v White [2000], courts at every level had been wrestling with the question of whether or not, in departing from equality and striving for fairness, it is proper to take into account and give weight to exceptional wealth creation by one spouse. Most recently this issue has been addressed in N v F [2011], in which Mostyn J considered how the court should, when exercising its powers, reflect, if at all, the property that one party had brought to the marriage.

As calls grow for interns to be paid, David Green examines what legal responsibilities employers have towards young people on work experience

Following the Daily Mail’s report that presenter Vanessa Feltz had ‘bullied a work experience girl to tears’, the BBC has launched an investigation into abuse of work-experience opportunities by senior employees. It has stressed that this incident occurred outside its normal work-experience programme, under which placements are given on merit, as it was arranged privately through Ms Feltz’s daughter. So, what rights do those on work experience actually have? Is it an opportunity for the individual to gain valuable experience and contacts or a means of cheap labour, often with no financial reward or redress if they are badly treated? From the employer’s point of view, what are the benefits and what are the legal risks of taking on these individuals?

Robert Thomas and Dawn da Silva explore the legal implications of recent findings that longer working hours are causing rising sickness absence, stress and employee grievances

A number of worrying workplace trends have been identified by the third annual State of HR survey conducted across the UK by the HRM Learning Board at King’s College London in conjunction with Speechly Bircham LLP. The findings are based on the input of 550 senior HR professionals representing a workforce of over 2 million. This year’s survey is set against the backdrop of continuing economic difficulties, a change of government with the consequential change in the approach to workplace rights, and the impact of the Comprehensive Spending Review focused on austerity measures and cutbacks.

Rebecca Dziobon highlights the importance of EU provisions where there is a choice of forum

It is estimated that 16 million of the 122 million marriages in the European Union involve international couples, and that of the 1 million-plus divorces in the 27 member states in 2007, 140,000 (13%) had an international element. Following on from ‘Crossing Borders’ by Prof Jonathan Harris, FLJ 103, February 2011, p2, this article looks at the adoption of proposals from the European Commission by EU ministers designed to bring legal certainty to international couples wishing to divorce or legally separate. The measures were formally adopted by EU Ministers on 20 December 2010. Although the UK is not participating in the Regulation at this time, it is important that family practitioners are aware of its implications when advising international clients.

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