Fri08182017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • DATA PROTECTION: No access
    Written by

    Faranak Ghajavand continues her litigator’s guide to subject access requests

    Part 1: 'Change the subject' (CLJ73, May/June 2017)

    In this second instalment, I continue my assessment of subject access requests (SARs) in commercial litigation, and turn now to the limits of SARs in civil litigation.

  • CHOICE OF LAW: A fair exchange

    Chris Webber and Michael Davar weigh up the impact of the Rome Convention in financial derivatives claims

    In the sphere of financial derivatives, claims in the English courts by foreign municipalities and other public bodies subject to special legislation have, since 2008, been numerous. In particular, there have been a number of disputes over whether foreign ‘mandatory’ laws apply to derivative contracts by operation of Art 3(3) of the Rome Convention despite the parties’ express choice of English law.

  • BUDGETS: The cost of everything

    Francesca Ruddy analyses a recent case examining the relationship between costs budgeting and costs awarded

    A number of costs assessments had been put on hold pending the outcome of the appeal in Harrison v University Hospitals Coventry & Warwickshire NHS Trust [2017], which was referred directly to the Court of Appeal from the Senior Courts Costs Office on a ‘leapfrog’ basis.

  • BREXIT: Climb every mountain

    In part one of a two-part consideration, Tom Snelling and Lauma Skruzmane survey the perilous path of Brexit

    Now that the Brexit negotiations have finally begun and the principal negotiators have exchanged mountaineering-themed gifts, the steepness of the climb ahead is dauntingly apparent. The best path to tread will not always be clear. In fact, for both sides, the negotiations will be labyrinthine. As the initial discussions have already demonstrated, media and public scrutiny of the negotiators’ progress is unrelenting (with some quick to look for evidence of concession and the whiff of a U-turn). Securing agreement on even (comparatively) straightforward issues will be challenging, but more so when complex legal points are engaged. Against this backdrop, a successful resolution to questions about the future framework for jurisdiction and the recognition and enforcement of judgments will be far from easy; however, securing such a resolution is vital to safeguard individuals’ rights and the success of any UK-EU trading relations post-Brexit.

  • PRIVILEGE: Ever-decreasing circles
    Written by

    Gwendoline Davies, Andrew Northage and Robert Starr assess the impact of a recent ruling on legal professional privilege

    A recent High Court ruling is the latest in a line of cases to limit the scope and availability of legal professional privilege. While Serious Fraud Office (SFO) v Eurasian Natural Resources Corporation Ltd [2017] (SFO) was a criminal case, it applies equally to civil and regulatory investigations, and will be of significant interest because of its important implications for legal professional privilege.

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Employment Law Journal

  • HOLIDAY PAY: Will it never stop?
    Written by

    Kate Gardner and Sarah Driscoll report on a recent case on holiday pay which could have major implications for gig economy businesses

    As employers and their advisers will be aware, there has been a series of far-reaching legal developments on workers’ and employees’ rights to holiday pay in the last few years. The pace of change shows no sign of slowing, following the advocate general’s (AG’s) recent opinion in King v The Sash Window Workshop Ltd [2017] that the right to paid annual leave carries over indefinitely until a worker has the opportunity to exercise it.

  • TERRITORIAL JURISDICTION: Location, location, location
    Written by

    Emma Naughton examines two recent cases on the tricky issue of which country’s courts have jurisdiction to hear an international worker’s employment claims

    As the workforce continues to become more mobile and global, it is not always clear which country’s courts or tribunals should hear an employee’s claims. This article looks at the possible impact of two recent cases dealing with the issue of territorial jurisdiction. The first, Green v SIG Trading Ltd [2017], was an Employment Appeal Tribunal (EAT) decision. The second, Nogueira v Crewlink Ltd; Moreno Osacar v Ryanair [2017], was the opinion of the Advocate General (AG) on a case concerning the aviation sector. This sector has been alive to the problems caused by having a mobile workforce for longer than other sectors but still comes across practical issues.

  • STRIKE PAY: All in a day's work
    Written by

    Phil Allen and Louise Singh look at the implications of a recent Supreme Court decision on how much pay to deduct when employees go on strike for a day

    If employees are on strike, an employer does not have to pay them for the periods when they are not working. In the recent case of Hartley v King Edward VI College [2017], the Supreme Court considered how much pay an employer was entitled to deduct when tutors at a sixth form college took part in a day of lawful strike action.

  • CONFIDENTIAL INFORMATION: Lessons from a failed injunction

    A recent case contains important guidance on drafting restrictive covenants, applying for springboard injunctions, handing over emails and complying with procedural rules, explain Rebecca McGuirk and Anna Scott

    In Capita plc v Darch [2017], Capita applied for an interim injunction against various ex-employees and a competitor company with which they are associated, Archus Ltd. The case contains a useful discussion of both restrictive covenants and interim injunctions. Interestingly, it also discusses whether an employer may claim emails that employees send from its email account are its property (regardless of whether they are about business matters).

  • SHARED PARENTAL LEAVE: Dads paid less for bringing up a baby – is direct discrimination the answer?
    Written by

    Anthony Fincham and Val Dougan analyse two recent cases challenging employers’ failure to enhance shared parental pay rates for fathers

    We have come a long way since maternity leave was first introduced by the Employment Protection Act 1975, with women now receiving 52 weeks’ leave and 39 weeks’ statutory maternity pay. But have we come far enough when it comes to dads?

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Family Law Journal

  • EMBRYOLOGY: Follow the rules
    Written by

    In the conclusion to a two-part analysis, Seamus Burns looks at the legal controls for egg sharing, together with issues as to consent and the requirements in relation to egg freezing

    Part one: 'Dangerous ground', FLJ168, July/August 2017

    Section 12(e) of the Human Fertilisation and Embryology Act 1990 (HFEA 1990) sets out one of the general licensing conditions applicable to the three types of licences under HFEA 1990, namely treatment, storage and research licences granted by the Human Fertilisation and Embryology Authority (HFEA). It specifies that no money or other benefit shall be given or received in respect of any supply of gametes, embryos or human admixed embryos ‘unless authorised by directions’. This is effectively a general prohibition on the commercialisation of supplying eggs (ie gametes), preventing their supply in return for money or other benefit. However the HFEA has issued a direction that allows a person to receive a ‘benefit in kind’ as a consequence of egg sharing. The directions issued by the HFEA are downloadable from its website (see www.legalease.co.uk/egg-sharing).

  • DOMESTIC ABUSE: Safety first
    Written by

    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.

  • PRIVATE CHILDREN: Extreme measures
    Written by

    Catherine Maguire asks whether there are changing judicial attitudes towards parental alienation

    The decision in Re B (change of residence; parental alienation) [2017] reflects the gradual increase in judicial willingness, in the right circumstances, to change a child’s residence in cases of entrenched parental alienation.

  • NON-MATRIMONIAL PROPERTY: Moving forward?
    Written by

    In the first of a two-part analysis, Deborah Jeff questions whether the Privy Council decision in Scatliffe v Scatliffe has further developed the law on non-matrimonial assets

    The judgment in Scatliffe v Scatliffe [2016] was concerned with an appeal against an order made by the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands (BVI)). The Privy Council was concerned with whether there had been a ‘serious misunderstanding’ as to the nature of non-matrimonial property.

  • FINANCIAL PROVISION: Short but sweet
    Written by

    Priya Palanivel and Shantel Burbridge examine the Court of Appeal’s decision in Sharp v Sharp, and the potential impact on the approach to short marriages

    The duration of marriage has always been one of the more controversial factors under s25, Matrimonial Causes Act 1973 (MCA 1973) when it comes to determining how assets should be divided on divorce. Many would agree that fairness dictates there should be a distinction between how assets are divided in short, medium and long-term marriages. As such, it is not surprising that the decision in Sharp v Sharp [2017] has been widely reported in the media. This article considers the approach that has historically been taken by the courts in relation to the division of assets in short marriages, and the outcome in Sharp.

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Personal Injury Law Journal

  • EVIDENTIAL ISSUES: Asbestos-related lung cancer claims
    Written by

    Rushmi Sethi considers contributory negligence in lung cancer claims in mostly asbestos-exposed smokers

    The inhalation of asbestos dust and fibres can lead to a number of diseases. The diseases most commonly associated with asbestos exposure are asbestosis (scarring of the tissue of the lungs resulting from the inhalation of asbestos dust and fibres), lung cancer (a malignant cancer of the lung tissue), and mesothelioma (a malignant cancer of the lining of the internal organs). There have been some recent decisions in the UK courts dealing with contributory negligence in the context of asbestos-related lung cancer claims.

  • CASE REPORT: Prescott v Trustees of the Pencarrow 2012 Maintenance Fund (2017) unreported, Plymouth County Court, District Judge Richards, 12 June

    Fixed costs regime; road traffic accident; non-road user; pre-action protocols; public liability claims, simple fast-track claims

    This decision provides important clarification as to the scope of the fixed costs regime (FCR) at CPR Part 45.

  • COSTS: The Four Hundred Club
    Written by

    Paul Jones reviews if a defendant can be reimbursed for payments which are now unnecessary after a change in the RTA protocol

    During the Peloponnesian War between Athens and Sparta, the democratic government of Athens was overthrown in 411 BC by a coup from a group known as The Four Hundred. Nearly 2,500 years later, a group known as the ‘400 Club’ made an appearance at the Court of Appeal in relation to the somewhat less dramatic issue of fixed recoverable costs in road traffic accidents.

  • ILLEGALITY: Does Patel v Mirza apply in tort?

    James Goudkamp explores whether the Supreme Court’s policy-based approach to the illegality doctrine will be followed in tort cases

    The Supreme Court recently handed down judgment in the appeal in Patel v Mirza [2016]. In this landmark decision, the Supreme Court put to rest a long-running debate that had raged between justices of the Supreme Court regarding the proper approach to the law of illegality. Several justices, spearheaded by Lord Sumption, had preferred a rule-based analysis, with the reliance test constituting the relevant rule. According to the reliance test, the claimant will fail in his or her action if he or she needs to rely on his or her own wrongdoing in order to establish the claim. The rival approach, championed by Lord Toulson, entails a discretionary analysis. The discretion-based test involves examining all of the factors that weigh in favour and against permitting recovery and then reaching a conclusion as to the proper outcome in the light of those considerations. Salient factors might include the need to prevent wrongful profiting, the concern to deter offending, the imperative of maintaining both the dignity of the courts and the coherence of the legal system, any relevant statutory policy, and the importance of guarding against disproportionate reactions to what might be relatively insignificant illegality. In Patel, the Supreme Court rejected, by a majority, the rule-based approach in favour of the policy analysis.

  • MOTOR INSURANCE FRAUD: The 'trial mindset'

    Brian McCluggage argues for a greater focus on trial preparation in motor fraud cases

    This short article developed out of a presentation at the 2017 Personal Injury Bar Association conference at Oxford. There are no esoteric questions of law raised within. The focus is rather upon evidential and tactical techniques for getting a case best prepared for trial through ensuring that the litigator is ‘trial-minded’. The context of the article is motor cases in which fraud is alleged. Motor fraud cases comprised a substantial part of my practice over a period of about 15 years to 2013. Over the 200 or so trials conducted in this line of work, it was extraordinary to see the same mistakes and poor practices applied time and time again. While my experience is rooted in acting for insurers, much of the analysis below is of as much if not more relevance to claimant representatives.

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Procurement and Outsourcing Journal

  • MANAGEMENT: A 'state o' chassis'
    Written by

    Chris Hoyle investigates how to manage procurement crises

    The history of the world is littered with failures; some heroic like Dunkirk and others inglorious like Chernobyl. Procurement is no exception, even if it’s not so epic. The phrase ‘Crisis? What crisis?’ helped bring down the Labour government in 1979. Fashioned by a Sun journalist – and not Jim Callaghan, the Prime Minister, as is commonly thought – the headline caught the popular impression of a government unaware of a very serious state of affairs which had sneaked up on it. The phrase though emphasises the high penalty that can be paid by the unwary procurer. The message I’d like to deliver is a simple one and it’s derived from this phrase. Procurement crises happen – people and systems can fail – but informed people can prevent them, and when these crises occur they can rescue the situation.

  • HOUSING: Where the heart is
    Written by

    Peter Kershaw highlights the need for investment planning to address the housing requirements of the disabled and elderly

    Winston Churchill made a powerful observation in October 1943 about the impact of planning. He stated with absolute conviction that ‘we shape our buildings, and afterwards our buildings shape us’.

  • TENDERING: Pay your money, take your choice
    Written by

    Emily Heard reviews the legal considerations governing price/quality evaluations

    In the current economic climate, establishing a price/quality evaluation model that delivers the right level of quality at the best possible price is important. There is not a single ‘best practice’ model. In this article I look at a variety of different models that exist, and provide some insight into potential pitfalls if using particular models.

  • CONTRACTING: Is it a bird, is it a plane, no...
    Written by

    Richard Hough outlines recent judicial guidance on the clarification of tenders

    Clarification of tender submissions can be a minefield for contracting authorities. In addition, the growing trend for tender submissions being submitted electronically through a portal can lead to additional problems, such as tender documents not uploading correctly or incorrect documents being uploaded. Even where the tender submission is complete, answers may assume a level of knowledge on the part of the reader that the contracting authority may not possess, eg because the answer is very technical.

  • COMPLIANCE: Corruption et corruption
    Written by

    Thomas Webb and Georges-Louis Harang weigh up Anglo/French anti-bribery legislation

    The UK Bribery Act 2010 came into force on 1 July 2011, creating for businesses operating in the UK the most stringent and far-reaching anti-bribery legal regime in the world. In particular, it imposed strict criminal liability on corporates that failed to prevent bribery. On the other hand, UK companies may be able to avoid prosecution by being invited to agree a ‘deferred prosecution agreement’ (DPA) with the Serious Fraud Office (SFO). A DPA requires civil court approval which will only be provided if the company can demonstrate that it has, among other things, provided the SFO with full co-operation.

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Property Law Journal

  • CONSTRUCTION FOCUS: Politics of the judiciary
    Written by

    John Starr focuses on three cases that highlight pitfalls for the construction law practitioner

    In this article I examine three recent cases of interest: Dawnus Construction Holdings Ltd v Marsh Life Ltd [2017], RCS Contractors Ltd v Conway [2017] and Thakkar v Patel [2017].

  • POLLUTION: A lot of hot air?
    Written by

    Simon Tilling and Sarah Raby review the new air quality plan

    Air quality is one of the major environmental issues facing the modern world. Combustion of fuels in, for example, power generation, industrial processes, domestic heating and road vehicles causes the release of harmful air pollutants such as nitrogen dioxide (NO2). Development activity therefore tends to go hand in hand with increases in emissions and reductions in air quality.

  • LEASES: Practise what you preach
    Written by

    A ‘licence’ can turn out to be a lease when put to judicial scrutiny. Emma Pinkerton and Sarah Moore explain how to make sure legal documentation delivers

    Clients often ask their solicitors to put a licence in place, thinking that a licence will be easier and quicker to agree than a lease and that a licence must also be cheaper.

  • PLANNING UPDATE: Two become one
    Written by

    Katie Scuoler examines the current planning position on amalgamation of units

    Historically whether planning permission was required for the amalgamation of units has been a grey area for planning lawyers. However, it was a question which was seldom asked. In recent years there has been a strong trend in the central London residential market for the creation of substantial residential properties through the reconversion of previously subdivided houses, the amalgamation of purpose-built flats or adjoining houses, and lateral amalgamation of units. As a consequence, there has been increased focus on decisions regarding amalgamation. This article traces the recent evolution of decision-making regarding amalgamation.

  • TENURE: Flying high
    Written by

    Julian Bass and Sarah Quy provide some practical solutions to flying freeholds

    A flying freehold is a quirk of English land law. Here we discuss the practical problems it can lead to, and suggest some possible solutions and damage limitation measures.

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Trusts and Estates Law & Tax Journal

  • DONATIONES MORTIS CAUSA: Where there's no will, there's a way
    Written by

    Edward Cumming and Timothy Sherwin bring the doctrine of deathbed gifts up to date

    In this article, we consider donationes mortis causa (DMCs), sometimes called deathbed gifts.

  • WILLS: The prodigal daughter?
    Written by

    Ruth Hughes explores the notion of ‘doing the right thing’ in a will

    Re Jones [2016] was a case riven with tragedy, but with a relatively happy ending.

  • NUPTIAL SETTLEMENTS: Consistency is key
    Written by

    Claire Blakemore and Jemma Thomas give the lowdown on trusts and divorce

    Establishing whether the court is likely to view the trust as a nuptial settlement capable of variation, or a resource available to the parties, is often a key consideration in a case where there is a mixture of trust and non-trust assets. Answering these questions involves a detailed analysis not just of the trust documents (including the trust deed, trust accounts, any letter of wishes) but also evidence from any relevant party as to how the trust was managed during the marriage. Sometimes it is a gap in the information that can be important in understanding how a trust will be treated; for example if there is an inconsistency between the family’s earned resources and their lifestyle, it may indicate either the trust or its assets are assisting in meeting the family’s expenditure. It is this level of rigorous scrutiny of family finances that the court will expect. Consistency between how the trust is structured and how it is managed is often a key factor when it comes to analysing the impact of trust interests on the division of assets on divorce.

  • THE 1975 ACT: Discretion to dispose

    Siân Hodgson considers the differing statuses of spouse and cohabitee in claims under the Inheritance (Provision for Family and Dependants) Act 1975

    Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) have been reported frequently in the national press recently, particularly the case of Ilott v Mitson [2015] which received wide press coverage after the Supreme Court ruling in relation to claims by adult children.

  • HMRC: Have you mandated?
    Written by

    Paul Saunders looks at when trustees should submit details of trust income to HMRC

    What does ‘mandated’ mean when used by HMRC in its internal Trusts, Settlements and Estates Manual (TSEM) in relation to whether or not trustees are required to submit a return of trust income?

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