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Property Law Journal: 7 February 2011

Times have changed since expert witnesses had to wait patiently for their turn to give evidence, explains Paul Barry, but is giving concurrent evidence a welcome development?

The practice of ‘hot-tubbing’, or ‘concurrent evidence’ as it is formally known, is becoming an increasingly popular practice whereby experts from both sides of a dispute sit in the dock together with the judge or arbitrator leading a discussion between them. What makes this approach unique is the fact that it does, indeed, encourage an open and frank ‘discussion’ between both sides. As such, this model differs from a traditional cross-examination since there are no barristers shaping the way in which the experts give their evidence.

Forsters LLP

When can a tenant seek relief, and on what terms will it be granted? Jonathan Ross investigates

In the case of Patel v K&J Restaurants Ltd [2010], the Court of Appeal had to decide whether the tenant was in breach of the user and alienation covenants in the lease of the premises. If so, were such breaches capable of remedy and had they been remedied, and should relief from forfeiture be granted?

Who ranks in priority in possession proceedings? A recent decision in the High Court provides some answers, as Kathleen Fitzgerald reports

In Re North East Property Buyers Litigation [2010] the English High Court was asked to determine three preliminary issues in nine test cases. In these cases a range of mortgagees were seeking possession of properties following default by borrowers. The borrowers were all nominees for North East Property Buyers (NEPB) who had acquired their properties as part of sale and leaseback arrangements, and in each case the acquisition of the property had been financed. The seller occupiers (the former registered proprietors) did not vacate the properties at the time of the sale and leaseback transactions and were disputing the mortgagees’ rights to repossess the properties as a consequence of substantial arrears having amounted in respect of the loans. This objection was on the basis that their actual occupation of the properties constituted overriding interests in the properties that had priority over any rights to repossess that the mortgagees may have obtained.

Nabarro LLP

Planning Performance Agreements are experiencing a renaissance, but what are they and do they have any value? Nicola Insley finds out

A Planning Performance Agreement (PPA) can be used to provide a bespoke framework for the management of planning applications for large development and regeneration schemes. Deadlines can be set, resources allocated, and costs agreed.

Sarah Youren reviews the upcoming changes in planning likely to be brought about by the Bill

The long-awaited Localism Bill has finally arrived. At the moment, views are split as to whether this will herald a new era of nimbyism with local people refusing to allow any new development in their area, or whether in fact the complete opposite will be true and it will become easier for developers to pursue new development using the new presumption in favour of sustainable development.

Matthew Bonye and Alexandra Bethell discuss the merits of the various options when looking to remedy a defective document

In a recently reported case, Fairstate Ltd v General Enterprise & Management Ltd & anor [2010], the High Court considered whether the established principles of construction and rectification could be applied to remedy defective drafting in a guarantee. It was held that because the guarantee was so fundamentally flawed and unsuitable for the transaction, and the defects too extensive, neither construction nor rectification could be used by the court to remedy it.

Mark Pawlowski provides an update on Jones v Kernott and its consequences for constructive trusts and the home

Is it open to a court to attribute to co-owners of a family home an intention to vary their equal beneficial shares following the parties’ separation where one party continues to live in the home and assumes sole responsibility for its continuing acquisition and maintenance? This was the specific issue addressed by the Court of Appeal in the recent case of Kernott v Jones [2010] where mixed views were expressed by their Lordships as to the correct approach in identifying the parties’ common intention in such circumstances.