The Commercial Litigation Journal
PRIVILEGE: Honest offers
Written by Walker Morris LLP
Gwendoline Daviesexplains 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.
EU REGULATION: The case of the disappearing debt
Written by Hogan Lovells
Ivan Shiuand Giles Huttanalyse the application of EU jurisdiction rules and the judgment in Goldman Sachs International v Novo Banco SA
In the vast majority of commercial disputes, the starting point for considering jurisdiction questions is the Recast Brussels Regulation (EU 1215/2012) (the Regulation), which sets out detailed and somewhat rigid rules that courts in all EU member states must follow. (Denmark is theoretically excluded from the scope of the Regulation, but has agreed to ‘opt in’ by means of a separate agreement with the European Community (EC) – see OJ L 79/4.)
BANKING: Strong bonds
Written by Mary Gibbons
As lawyers and bondholders wait to see if there has been a settlement between Argentina and holders of its defaulted bonds,
Mary Gibbonsexamines the most recent proceedings
The widely reported and long-running litigation between the Republic of Argentina and various hedge funds, arising out of the default by Argentina of debts due to the funds, and for which the funds seek payment of 100% at face value, continued throughout 2015. NML Capital Ltd and EM Ltd are estimated to hold over US$2bn in judgments against Argentina stemming from Argentina’s default on its sovereign debt in December 2001. These judgments have not been satisfied and the funds have sought recovery through various avenues, including bringing claims against the Central Bank of Argentina in the New York courts in two related actions.
JURISDICTION: Games without frontiers
Written by DLA Piper UK LLP
Jamie Curleand Camilla Macphersonprovide some pointers on drafting jurisdiction clauses from recent case law
As deals become ever more complex and global, the courts are increasingly being asked to adjudicate on questions of jurisdiction. These cases often turn on the wording of the dispute resolution clauses contained in the agreements at issue. Both the volume of reported judgments and the number of cases that have gone to appeal demonstrate how fiercely fought such satellite litigation can become.
SHAREHOLDER DISPUTES: Improper intentions
Written by Penningtons Manches LLP
Noel McMichaeland Nicole Finlaysonconsider a recent Supreme Court ruling
In December 2015, the Supreme Court handed down a significant judgment on the nature and effect of the ‘proper purpose’ rule in company law and when the presence of an improper purpose will invalidate a decision of directors ((1) Eclairs Group Ltd (2) Glengary Overseas Ltd v JKX Oil & Gas plc ). In doing so, it overturned the previous decision of the Court of Appeal and restored the decision at first instance. The judgment is interesting for its analysis of how the ‘proper purpose’ provisions interact with other provisions of the Companies Act 2006 (the Act) which are intended to protect companies from external, rather than internal, interference/manipulation.
Employment Law Journal
ABSENTEEISM: Managing employee sickness
Written by Mishcon de Reya
Laura Garneroffers some tips for employers when dealing with sickness absence and reviews recent case law developments
There is no doubt that sickness absence is a headache for employers. Research published by Personnel Today in October 2015 showed that absenteeism costs UK businesses an astonishing £16bn per year, with British employees taking an average of 6.5 days’ sick leave a year.
AGE DISCRIMINATION: Taking it literally
Written by Berwin Leighton Paisner LLP
The wording of an employer’s policy meant it was merely obliged to provide PHI, not to ensure the employee actually received payments, write
Helen Robertsand Rebecca Harding-Hill
As a result of age discrimination legislation which came into force nearly ten years ago, a number of employers now run two permanent health insurance (PHI) schemes. Under their current scheme, they offer cover to employees up to the age of 65 but there are still some employees claiming under a previous scheme with a lower age limit. This is usually because such employees were already off sick and receiving benefit when the employer entered into the current scheme and were not eligible to join it.
TERMINATION OF EMPLOYMENT: When disciplinary proceedings and the criminal law collide
Written by Lewis Silkin
Richard Berrydiscusses the main considerations for employers dealing with cases of off-duty misconduct that have a criminal element
The case of ex-Sunderland AFC footballer Adam Johnson provides a recent, high-profile example of how criminal prosecutions and employers’ internal disciplinary procedures may interact. After being found guilty of sexual activity with a girl aged 15, and having previously admitted two other counts, Johnson was sentenced to a six-year prison term, a sanction against which the footballer has subsequently appealed.
COMMISSION PAYMENTS: Making sure everyone gets their fair share
Written by White & Case LLP
A Court of Appeal ruling highlights the difficulties employers face in asserting absolute discretion over commission or bonus awards.
Stephen Ravenscroftand Jo Bennettreport
Disputes about remuneration often involve an employee challenging their employer’s decisions on bonus and commission awards. In the most recent case in this area, Hills v Niksun Inc , the Court of Appeal unanimously decided that an employee was entitled to a higher commission payment than the amount he had been originally awarded. In doing so, it gave a highly purposive construction to the detailed commission plan documentation despite broad statements of the employer’s discretion.
VICARIOUS LIABILITY: A modern theory?
Written by Macfarlanes LLP
Tabitha Georghiouand Matthew Ramseyexamine the impact of two cases on the existing tests to establish employers’ liability for acts committed by employees or other individuals
In two judgments delivered in March 2016, the Supreme Court has taken a fresh look at the law of vicarious liability. The last comprehensive survey of vicarious liability was in 2012 in the context of the abuse of children in religious institutions – the Christian Brothers litigation. In that case, the Supreme Court imposed liability in order to give the victims an effective remedy.
Family Law Journal
RELOCATION: Same difference
Written by Slater and Gordon
Amy Harrisexamines the factors that will be considered by the courts on an application for the internal relocation of a child
The Court of Appeal’s decision in Re C (Internal Relocation)  is essential reading for practitioners and provides a helpful re-examination of the issues that affect the court’s decision-making process in relation to the external and internal relocation of children. The judgment helpfully summarises how the historical approach to internal relocation has clashed with the principles associated with external relocation, but has also at times been complementary to them.
SERVICE: Forward thinking
Written by Grosvenor Law
Joanne Halllooks at service outside the jurisdiction and the impact of the digital age
Technology undoubtedly reigns supreme in our time. Our moments and thoughts are stored in a virtual cloud and e-mail and advancing smartphone technologies dominate our lives. In Maughan v Wilmot  Mostyn J encouraged lawyers to engage with the realities of technology and globalisation, and to recognise their impact on legal practice.
FORCED MARRIAGE: Protect and prevent
Written by Dawson Cornwell
In the conclusion to a two-part analysis on forced and child marriage,
Shabina Begumsets out the position in England and Wales and the potential for change
Part one of this article set out the position on early and forced marriages in Bangladesh. This concluding part examines the UK approach to forced marriage, remedies available, and recommendations as to what can be done to further reduce early and forced marriages in both the UK and in Bangladesh.
IMMIGRATION: No place like home
In the first of a two-part consideration,
Katherine Illsleyand Agata Patynareport on the rights of unaccompanied children seeking asylum within the immigration and family law process
The initial part of this two-part article will consider the problems facing local authorities and unaccompanied children going through the asylum and care process, and whether the system is fit for purpose.
ARBITRATION: Seeking finality
Written by Withers LLP
Suzanne Kingstonand Natalie O’Sheahighlight the new children arbitration scheme and analyse the impact of the post-arbitration decision in DB v DLJ
The children arbitration scheme, approved by the Institute of Family Law Arbitrators (IFLA), will be launched in July 2016. In many ways, the children arbitration scheme shares many of the benefits and advantages already familiar from the financial arbitration scheme. The most exciting aspect, perhaps, is the opportunity for parents to dictate the pace of the process itself, in order to meet the specific needs of children and their family in a way that the court system simply cannot do. Time-critical decisions have become increasingly difficult to obtain from our over-burdened court system. Issues concerning education, with looming deadlines for school entrance applications, and arrangements for holidays and Christmas require fast adjudication. In other cases, sensitivity and time is needed to allow children and the family to adjust to changing circumstances, such that they are emotionally and practically ready for the next steps. The children arbitration scheme is specifically designed to allow parents to press on the accelerator, or brake, as and when appropriate for their children during the process of separation.
Personal Injury Law Journal
CASE REPORT: Gentry v Lee Miller  EWCA Civ 141
Written by 12 King's Bench Walk
Insurers; vehicle loss; allegations of fraud; acknowledgement of service
Lord Justice Vos said in Gentry v Lee Miller  (para 34):
BOOK REVIEW: All together?
Written by 218 Strand
Jonathan Dingleassesses Employer’s Liability Claims (2016 edition)
In a former professional life, when serving in the Royal Navy, the author quickly learned that Royal Marines were among the finest individuals into whose hands you could trust your life. A privilege to command and lead, they were the right people to have at your side on an intoxicated night in Union Street, Plymouth.
MATERIAL CONTRIBUTION: Causes for concern
Written by 7 Bedford Row
Julian Matthewshighlights a case that demonstrates the courts’ approach to contribution to injury
The Judicial Board of the Privy Council’s contribution to the common law jurisprudence on causation of damage in the material contribution case Williams v The Bermuda Hospitals Board  provides a welcome clarification of the law in this complex area. The recent decision in John v Central Manchester NHS Trust  is a very helpful illustration of the application of the principles confirmed by that decision.
COSTS: Trials and tribulations
Written by Legal Costs Negotiators Ltd
Paul Jonesconsiders the costs implications of a dispute that was settled on the day of the trial, before the trial had taken place
One of the key features of the law of legal costs is that there are, in fact, very few actual core legal principles that define this area of law. It is, in theory, incredibly simple – the loser of litigation pays the winner but only to the extent that this is reasonable and, from this, the rest of costs law flows. What this means in practice, however, is that disputes between parties over legal costs can often be distilled down to arguments over a nuanced interpretation of a particular application of these core principles and it was precisely this type of argument that faced the court in the recent case of Bruno Manuel Dos Santos Mendes v Hochtief (UK) Construction .
FINANCIAL AWARDS: Tread carefully
Written by Frenkel Topping
Alison Taylorexplains methods for avoiding professional negligence claims and maximising quantum
A growth area of my work as a financial adviser is acting as an expert witness in professional negligence cases. Under-settling of claims, with solicitors advising clients to accept smaller sums for the sake of expediency, has been recognised for some time. Under-assessment of the value of a claim is equally an obstacle to justice for clients.
Procurement and Outsourcing Journal
PLANNING: Clean living
Written by Ashfords
John Bosworthsummarises changes to permitted developments and a further blow to launderette users
From 6 April 2016, amendments are made to the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO 2015). The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016 (the Amending Order) introduces new permitted development (PD) rights and puts the office-to-residential right on a permanent footing.
EMPLOYMENT: TUPE or not TUPE?
Written by Burges Salmon LLP
John Houldenand Adrian Martinconsider the handling of TUPE in procurement documents
A bid team treads a delicate line when it seeks to present a confident and apparently certain solution to a purchaser’s needs if that solution will involve changes for employees. A bidder should therefore have regard to the potential employment law ramifications of what it says in its bid document.
INFRASTRUCTURE: The best-laid plans
Written by CMS Cameron McKenna
Paul Smithexamines the National Infrastructure Delivery Plan
On 23 March 2016 the government published a new National Infrastructure Delivery Plan (the NIDP) outlining the government’s infrastructure priorities for the next five years and beyond. Improving visibility for the investor community and the supply chain, the plan details the government’s infrastructure plans for £483bn worth of planned investment in all sectors across the UK, which for the first time also includes the delivery of social infrastructure. Around £300bn of the intended investment has been allocated to the delivery of infrastructure over the next five years.
TECHNOLOGY: Inscrutable solutions
Written by Fieldfisher
Edward Bennettassesses the value of SIAM and multi-sourcing in 2016
In an economic climate where chief technology officers (CTOs) are increasingly required to deliver ever more for less, the service integration and management (SIAM) tower model was much-discussed in 2015. The SIAM tower model generates significant press and controversy, belying the fact that it is, in reality, a variant on a more familiar multi-sourcing model, evolved to recognise and provide for the reality that many businesses do not have the experience and capability to manage multiple suppliers.
INJUNCTIONS: Holding the balance
Written by Lamb Chambers (Chambers of Mark West)
David Sawtellreviews recent guidance on the American Cyanamid test
Applications for interim injunctions are frequently made urgently, with limited opportunity for a careful consideration of the case law. If a respondent is given informal notice of an application, their legal team will likewise need to move rapidly. Practitioners, therefore, need to be alert to developments in the law ahead of the telephone call from their client.
Property Law Journal
LAND REGISTRY: A question of trust
Written by Thomas Eggar, part of Irwin Mitchell
In light of the recent consultation,
Harriet Bastianigives the pros and cons of the proposed privatisation of the Land Registry
In what many observers see as a controversial move, at the end of March 2016 the government announced a consultation on plans to move the operations of the Land Registry into the private sector from 2017. This forms part of the government’s wider aim of achieving £5bn of additional corporate and financial asset sales by March 2020, with the sale of the Land Registry clearly intended to provide an easy capital receipt for the government in its bid to reduce the deficit.
CONSTRUCTION FOCUS: Time for an exception?
Written by John Starr
John Starrinvestigates the use of mediation in construction disputes and debates its effect on individual access to justice
Mediation has evolved, over the decades since its arrival from the US in the 1970s, into a popular means of dispute resolution in the UK construction industry, particularly in low-value disputes. Its ‘popularity’ has been ‘encouraged’ by the Technology and Construction Court (TCC) through the use of cost sanctions.
COSTS: The price of ambiguity
Written by Forsters LLP
Littlestone v Macleish  sheds light on whether landlords’ costs on dilapidation claims are recoverable on a standard or indemnity basis.
The Court of Appeal decision in Littlestone v Macleish  has attracted legal commentary, primarily because of the court’s findings regarding offers made pursuant to Part 36 of the Civil Procedure Rules (CPR). Indeed, the majority of the judgment focuses on this issue. Of particular interest to property practitioners, however, will be the court’s interpretation of a clause frequently found in leases of commercial premises, which sets out the circumstances in which a landlord may recover its costs from a tenant. While only six paragraphs of the 43-paragraph judgment are concerned with this subject, such brevity should not detract from the significance of the issue at hand.
TITLE GUARANTEE: Worth its weight
Written by Berwin Leighton Paisner LLP
Roger Cohensummarises a series of cases which demonstrate the issues that can arise when a title is registered by fraud or error
The elevator pitch for the system of title by registration in England and Wales is compelling. Title comes with registration. The register is conclusive, or almost conclusive. If the register is wrong and an innocent person is prejudiced, the Land Registry will indemnify the loss. Simple and what could go wrong? The devil is in the detail, compounded by the history and the propensity of a minority to commit fraud. Three examples illustrate the problems that can arise: Malory Enterprises Ltd v Cheshire Homes (UK) Ltd , Gold Harp Properties Ltd v MacLeod  and Swift 1st Ltd v The Chief Land Registrar .
FRAUD: When gross negligence is not enough
Written by Walker Morris LLP
In the first of two articles highlighting the key points of a case involving deliberate deceit by a surveyor,
Jonathan Brooksexplores 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.
Trusts and Estates Law & Tax Journal
INTESTACY: A welcome update
Written by RadcliffesLeBrasseur
Jonathan Shanklandand Tulin Hamitinvestigate changes to the intestacy rules created by the Inheritance and Trustees’ Powers Act 2014
The Inheritance and Trustees’ Powers Act 2014 (the Act) received Royal Assent on 14 May 2014 and came into force on 1 October 2014. The Act makes some crucial changes to the intestacy rules found under part IV of the Administration of Estates Act 1925. The Act also makes changes to the rules relating to family provision claims under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act), and to some of the powers of trustees. There were also some subtle changes to the treatment of children on adoption. Most of the changes enacted by the Act were recommendations from the Law Commission’s report, ‘Intestacy and Family Provision Claims on Death’ (the report) published in 2011.
BOOK REVIEW: Quality and quantity
Written by PWT Advice LLP
Jo Summersreviews A Modern Approach to Lifetime Tax Planning for Private Clients
There’s a certain brand of beer that prides itself on being ‘reassuringly expensive’. When I saw the review copy of A Modern Approach to Lifetime Tax Planning for Private Clients (with precedents) 2nd ed, it occurred to me that it is ‘reassuringly lengthy’.
WILLS: A textbook claim
Written by Vardags
Lydia Pilaticonsiders the lessons to be learned from Brennan v Prior  on contesting the validity of a will
The case of Brennan v Prior  denotes the atypical case that is used to exemplify the type of claims that may be made when contesting the validity of a will.
BUSINESS PROPERTY RELIEF : Going for gold
Written by Bond Dickinson LLP
Luke Busbridgeexamines the outcome of The Trustees of the David Zetland Settlement , in which it was argued that a property business was eligible for 100% business property relief
A well-worn maxim is that ‘we’ve never had it so good’, but one that is not commonly heard in relation to tax. However, it arguably rings just as true in relation to the current (very favourable) rates of business property relief (BPR) as it does in other, less objective, connections. With the top rate of BPR standing at 100% and appearing to be in little danger of being altered – during the lifetime of the present government, at least – in that respect we really have never had it so good. Someone of a less sunny disposition might also observe that things cannot get any better, but that is not the point. Since 10 March 1992, the maximum rate of BPR has been 100%, and is, understandably, one of the golden geese of the capital tax world.
PROTECTORS : An awkward position
Written by Harcus Sinclair
Hannah Southonhighlights a case that provides new guidance on the status of protectors in English law
There have been very few, if any, cases in England concerning the standing of protectors to bring matters before the English courts. The decision in Davidson v Seelig  provides useful guidance both as to a protector’s standing under ss41 and 57 of the Trustee Act 1925 and on the extent to which a protector may invoke the court’s inherent jurisdiction. Further, prior to this judgment there had been some doubt as to whether, in the absence in England and Wales of enabling statutory provisions, a protector is entitled to apply for directions and other relief in relation to matters which are not directly connected to the powers they hold. The clear answer now, at least at first instance, is that they are not. Perhaps most of all, the decision highlights the problems in the role of protector that arise from its lack of equitable and statutory foundation in England.