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Last updateTue, 24 Feb 2015 5pm

Walker Morris LLP

Walker Morris LLP

Andrew Beck, Andrew Bennett and Gwendoline Davies assess the AIG Europe case and its implications for all those bringing, facing or insuring multiple claims against solicitors

AIG Europe Ltd v Woodman [2017] arose following the bringing of multiple solicitors’ negligence actions against AIG’s insured, a now-defunct law firm. The claims were issued by investors who had lost money under trusts covering two property schemes in Morocco and Turkey which had been developed by one of the firm’s clients. AIG argued that all of the claims were founded on the fact that the solicitors released monies too early or at all in respect of the two developments and therefore that they met the aggregation test, set out in clause 2.5 of the Law Society’s minimum terms and conditions for solicitors’ professional indemnity insurance (MTC), for claims arising from ‘similar acts or omissions in a series of related matters or transactions’. This was relevant because the insurer wished to rely on the aggregation clause to limit its liability.

Gwendoline Davies guides the way through the obligations of data protection and disclosure

The extent of a data controller’s obligations to respond to data subject access requests (DSARs), and in particular the interaction with legal privilege and litigation, has featured in a number of recent high-profile cases. DSARs are increasingly being used as a quick and cheap alternative to formal disclosure, or for other tactical reasons in the early stages of a dispute. There are a number of potential problem areas.

Andrew Beck and Gwendoline Davies return to update the law and practice of legal advice privilege and litigation privilege

In January 2016 we reviewed the law of legal advice privilege and the key cases which had hit the legal headlines in the preceding year (‘Practice makes privileged’, CLJ65, January/February 2016, p19). Privilege has continued to dominate as a hot topic for commercial litigators and so we return to provide an update and practical advice.

Karl Anders reviews recent case law concerning residential service charges, highlighting key lessons for landlords and tenants

Service charges are a common source of friction between landlords and tenants. Residential service charge disputes in particular can be very contentious, especially when hefty charges are levied on unsuspecting tenants, and not least where tenants cannot easily see or understand where sums charged are being spent, what charges relate to and whether they are reasonable.

David Williams reports on a recent judgment on misrepresentation

The High Court recently considered whether a company was induced to conclude an agreement by way of misrepresentations made by a third party and, if so, whether the other party to the agreement was liable for the consequences.

Martin McKeague provides tips on exercising commercial lease breaks

Focusing on the core of a business can be a sensible strategy when it comes to improving efficiency. It is therefore often a strategy that is adopted in times of economic decline or uncertainty. A recent survey (‘The Elephant in the Room: provisions of leasehold liabilities by FTSE 350 companies’) on corporate real estate usage and surplus property in the years 2012-14 concluded that, despite the intentions of many businesses to drive down overheads and to concentrate resources on their core following the 2008 financial crisis, many corporates have not yet made significant changes to their property usage, so as to increase efficiency and reduce rental commitment. In the wake of the Brexit result on 23 June 2016, the economic outlook is uncertain. That means that businesses may increasingly look to their property portfolios to see whether divesting of any surplus could be a means of saving cash. In light of the current climate, and recent case law, I will provide some practical advice for businesses considering their lease break options.

A recent High Court case means more uncertainty for landlords on relief from forfeiture. Martin McKeague provides some practical advice

Forfeiture is a landlord’s ultimate remedy when a tenant is in breach of its lease. It enables the landlord to re-enter the premises, take back possession and bring the lease to an end. In an uncertain market or economic downturn, there is generally an increase in the instances of tenant default and lease forfeiture. However forfeiting a lease is a draconian remedy, which can have significant and far-reaching consequences for tenants. It is therefore a step which is taken very seriously by the courts. Add to that the fact that this is a complex area of law which is fraught with traps for the unwary, and it is easy to see why it is important for landlords, agents and tenants to have a clear understanding of some of the key legal and practical issues.

Andrew Beck and Gwendoline Davies provide an update on pre-action costs

A recent High Court finding that a defendant was entitled to recover its pre-action costs from a claimant who issued but did not serve court proceedings has highlighted that claimants must consider carefully the recoverability of pre-action costs when deciding whether to commence proceedings.

Andrew Beck outlines Norwich Pharmacal and explains the two tactical options recently highlighted which can be of both assistance and concern to those within data-sensitive industries

The Civil Procedure Rules (CPR) provide a process by which a disclosure order can be sought, pre-action, against a person who is likely to be party to subsequent court proceedings. A Norwich Pharmacal disclosure order (so called following the leading case of Norwich Pharmacal Co v Customs and Excise Commissioners [1973]), however, can be granted against a person who will not be party to subsequent proceedings, so as to identify another person (for example a wrongdoer or a potential beneficiary) or so as to identify the nature of a wrongdoing, who or which will be the subject of subsequent proceedings. A Norwich Pharmacal order can also require the disclosure of information needed to seek redress, as opposed to merely the disclosure of documents as per CPR disclosure provisions.

In the first of two articles highlighting the key points of a case involving deliberate deceit by a surveyor, Jonathan Brooks explores the principles involved

Following the ‘boom and bust’ of the mid-noughties, the courts have seen many instances of over-inflated mortgage valuations giving rise to findings of professional negligence against surveyors. Pressure from sheer volume of instructions, too casual an approach to obtaining and critically assessing comparables, combined with over-reliance on, and misplaced optimism in, the continuance of a rising market, meant that some surveyors fell below the standard of care required of them and overvalued properties, often causing borrowers and mortgage lenders to suffer loss.

Gwendoline Davies explains without prejudice privilege and highlights traps and tips for parties to any dispute or negotiation

If a communication between negotiating parties has without prejudice privilege, it will not be admissible in court and therefore cannot be adduced as evidence against the interest of the party that made it. The rationale behind this form of legal privilege is that it is in the public interest that disputing parties should be able to negotiate freely, without fear of future prejudice in court, with a view to settling their disputes wherever possible.

Gwendoline Davies and Andrew Beck explain the important principle of legal advice privilege and offer their practical advice

Privilege is a hugely valuable legal right, and hit the legal headlines nationally and internationally in 2015. It entitles a client to withhold documents (including electronic communications) from a court or third party, without any adverse inferences being drawn.

Ruth Bamforth reports on the New Fair Deal provisions

Pension provision is an emotive subject. As time passes fewer private sector workers have access to future service pension benefits in defined benefit pension schemes. For these workers, the government’s main concern is to ensure adequate minimum pension saving. In contrast, public sector workers continue to enjoy the more generous (although reformed) defined benefits provided by the public sector pension schemes. The protection of pension provision for public sector workers who transfer to the private sector is a political imperative, therefore. This article looks at these protections, in particular New Fair Deal, and highlights practical considerations for those involved in public to private sector outsourcing transactions.

Gwendoline Davies and Andrew Beck review recent cases on freezing orders and provide some practical advice

A freezing order is an interim injunction which restrains a defendant or potential defendant from disposing of or dissipating assets. A freezing order is typically obtained by a claimant or potential claimant who wishes to ensure that a (potential) defendant’s assets remain available pending the enforcement of a court judgment. These orders are also known as Mareva injunctions, following Mareva Compania Naviera SA v International Bulkcarriers SA [1980], in which case such an order was first granted. The courts’ jurisdiction to grant a freezing injunction derives from s37 of the Senior Courts Act 1981 and Civil Procedure Rule (CPR) 25 and Practice Direction (PD) 25A.

Gwendoline Davies and Marshal Ahluwalia look at the lessons to be learned from recent history

Civil litigation in recent years has been dominated by cases and commentary concerned with costs, court fees, procedure and proportionality. In this article, we look at how a little-known older case remains relevant today, and could even provide an effective way to help today’s commercial litigators and their clients to resolve their disputes quickly and cost-efficiently.

First money laundering, then mortgage fraud, and now conveyancer hacking. Alasdair Urwin and Sandip Singh explain the latest fraud risks of which lenders, borrowers and conveyancers should be aware

Many of us are familiar with ‘phishing’. This is the means by which fraudsters acquire sensitive information, such as bank account details, by posing as a known or trustworthy entity in an electronic communication. We are alive to the risks to a certain extent, and we generally think twice before revealing sensitive or financial details online or in response to unexpected or unsolicited correspondence.

The law, like the property market, does not stand still. Against the backdrop of a market that is rising rapidly in places, Jonathan Brooks and Sandip Singh look at some of the key issues to come out of recent valuation negligence case law

Surveyors’ negligence cases abound following a boom, bust cycle, as overheated markets can lead to overvaluations and subsequent financial difficulties can lead to increased borrower default. Following the recession of recent years, and against the backdrop of a market that is now rising rapidly again in places, we look at valuation negligence law as it now stands.

Lynsey Oakdene and Camilla Dalzell discuss the definition of a Quistclose trust and the circumstances in which a court will find that one exists, following Tuthill

In private client work, clients and firms regularly need to transfer monies to third parties to complete a deal or to perform a specific purpose. To some extent those involved rely on the protections provided by common law to protect their funds in those circumstances, often trust law. The recent case of Tuthill v Equine FX Ltd [2013] highlighted the issues that can arise and this article considers how a Quistclose trust (a form of purpose trust) comes into being, and the practical requirements to bring such a trust into existence.

Defaulting borrowers and shortfalls from subsequent sales have become increasingly common in the current property market. Who is responsible for these losses? The negligent valuer, or the lender itself? Nicola Stanley investigates

Following the combined effects of the credit crunch and the slump in the property market since 2007, lenders have been faced with losses arising from defaulting borrowers and shortfalls from subsequent sales in possession.

Marie-Louise Gobbi considers the content and effect of two recent Orders, and their implications for all those who own, occupy or develop land, as well as for the grocery retail business

Competition law is more generally considered in the context of price-fixing wars than in the arena of property law, but two important legal developments mean that competition is now a hot topic in the real estate industry.

Marie-Louise Gobbi investigates recent judicial interpretation of lease break options

I started researching this article with the assumption that it would be a fairly standard round-up of recent cases concerning the tricky operation of lease break options. While real estate litigators are familiar with the pitfalls of validly effecting commercial lease breaks, non-specialist landlords and tenants, for whom property law is an unknown and often unwelcome consequence of their ownership or occupation of business premises, can often fall foul of crafty or careless break clause drafting, and can struggle to properly operate breaks. In the difficult economic climate of recent years, many tenants have sought to extricate themselves from lengthy lease terms.

Richard Auton assesses the potential impact of staff mutuals

Francis Maude, the Minister for the Cabinet Office, stated in a speech last November announcing a roll out of ‘rights to provide’ for staff in the public sector, and setting up a £10 million pot to help the best fledgling mutuals reach investment readiness, a belief that: