The Commercial Litigation Journal
DATA PROTECTION: Digital departure
Written by Sidley Austin LLP
William Longassesses the impact of Brexit on data protection legislation in the UK
On 23 June 2016, UK voters passed a referendum to leave the European Union (EU) after a membership of nearly 40 years. This historic decision is likely to have a profound impact on political, economic and regulatory decisions in the coming months and years, while politicians negotiate the terms of the UK’s exit from the EU. The impact of this decision on many different areas of law and regulation will need to be carefully examined and monitored over the coming months, including in relation to data protection.
MEDIA: Private lives
Written by Hamlins LLP
Andrew Stephensonanalyses the prospects of legislation to protect the right of privacy
Article 8 of the European Convention on Human Rights provides that ‘everyone has the right to respect for his private and family life’. Article 10 provides that ‘everyone has the right to freedom of expression’. Article 13 requires that ‘everyone whose rights are violated shall have an effective remedy before a national authority’.
COSTS: Ours not to count the cost
Written by Walker Morris LLP
Andrew Beckand Gwendoline Daviesprovide 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.
EVIDENCE: Careless whispers
Written by CMS Cameron McKenna
Omar Qureshiand Kushal Gandhiconsider the use of covert recordings
In the recent case of Singh v Singh  the High Court decided that covert recordings of conversations between business partners were admissible as evidence at trial but should be treated with caution. The claimant relied on recordings of meetings he had with the first defendant in private to prove that he was a co-owner of two businesses which he and the first defendant had set up together. No one else had been party to their discussions about ownership of those businesses and the evidence of the witnesses was contradictory.
PRACTICE: The long arm of the law
Written by Herbert Smith Freehills LLP
Tom Hendersonreports on a recent Supreme Court decision reformulating the test for when a claim will fail due to illegality
The Supreme Court has established a new approach to the question of whether a defendant will be able to rely on the defence of illegality: Patel v Mirza .
Employment Law Journal
HEALTH AND SAFETY: Sentencing guidelines – new dawn or damp squib?
Written by Clyde & Co LLP
Chris Morrisoncontemplates how organisations are responding to the prospect of much tougher fines for health and safety offences
New sentencing guidelines for health and safety, corporate manslaughter and food safety offences were introduced on 1 February 2016, arming the courts with a new weapon of fines related to turnover to take on errant businesses.
TERRITORIAL JURISDICTIONS: Over the seas but not always far away
Written by Hogan Lovells
Jo Broadbentreviews two recent decisions focusing on whether individuals working abroad could bring a claim in the UK employment tribunal
Neither the Employment Rights Act 1996 (ERA) nor the Equality Act 2010 (EqA) contain provisions about their territorial scope. This has resulted in the courts and tribunals having to determine in what circumstances someone who does not actually work in Great Britain will have protection against unfair dismissal and discrimination.
WHISTLEBLOWING: A whistlestop tour of new rules for regulated entities
Written by Norton Rose Fulbright
New rules require banks and other financial institutions to put extra procedures in place encouraging staff to report concerns about the business, report
Nick Howardand Ben Wright
In October 2015, regulators proposed a package of measures to formalise financial firms’ whistleblowing procedures. The measures were contained in a supervisory statement (SS39/15) and a policy statement (PS15/24) issued by the Prudential Regulation Authority (PRA). PS15/24 attached new rules to be included in the Senior management arrangements systems and controls sourcebook and the Prudential sourcebook for investment firms. While affected firms have until 7 September 2016 to comply with most of the new rules, 7 March 2016 was the deadline for appointing a whistleblowers’ champion.
DRUG POLICIES: The lowdown on the legal highs ban
Written by Gowling WLG
Anna Fletcherand Connie Clifflook at how the Psychoactive Substances Act could affect employers
After some uncertainty and delay, the Psychoactive Substances Act 2016 (the Act) came into force on 26 May. The Act bans the production and supply of ‘legal highs’ but not their use.
CONTRACTUAL EMPLOYMENT POLICIES: Court of Appeal restricts employer’s room for movement
Written by Shoosmiths LLP
A recent decision highlights the lack of flexibility for employers who have contractual employment policies.
Liz Parkinexamines the case
Contractual terms governing the employment relationship are subject to the common law principle that a contract may only be amended with the agreement of the parties.
Family Law Journal
SURROGACY: Lessons from abroad
Written by Mogers Drewett
Anne-Marie Hamerinvestigates the potential reform of surrogacy law, and how such reforms may be guided by experiences in other countries
The gap between the law relating to surrogacy and the realities faced by the parties in such cases was highlighted by the president of the Family Division, Sir James Munby, in In the matter of Z (A Child) (No 2) , when he made a declaration of incompatibility with the Human Rights Act 1998. The question is, what is to be done about it?
VARIATION: Challenging odds
Written by Wilsons
Daniel Sandersconsiders the courts’ approach to variation applications and the limited circumstances in which such an application is likely to succeed
For many clients a concluded financial settlement by consent, or following a final order of the court, marks closure in relation to the main issues surrounding the breakdown of their marriage; such settlement or final order is often considered to provide certainty for the parties. A final order is therefore, to all intents and purposes, akin to the last page of their marriage book. Certainty of closure may very well be the case in many instances where, save for the intricacies of implementation, or a potential court review of certain lump sum or settlement of property orders for example, there is a relatively immediate or foreseeable clean break. However, the focus of this article is on opening the door, which has remained ajar, by virtue of income claims being left open in a financial settlement order: that is to say, the bringing of variation proceedings – as a sequel of sorts – to the original settlement.
PRIVATE CLIENT: Careful planning
Written by University of Greenwich
Mark Pawlowskihighlights some of the pitfalls associated with mutual wills that may have consequences on relationship breakdown
Mutual wills arise where two parties (usually husband and wife) make identical wills, pursuant to a legally binding agreement, in each other’s favour on terms that the survivor will not revoke their will without the consent of the other. Revocation will normally give rise to a claim for breach of contract during the joint lives of the parties. However, where one party has died, and the survivor revokes their will, the estate of the deceased can no longer maintain an action for breach of contract. In that scenario, an equitable constructive trust for the benefit of those entitled under the deceased’s estate is imposed on the survivor from the time of the other party’s death, in order to prevent an equitable fraud. A fraud would arise if the survivor goes back on the mutual agreement and seeks to take the benefit of the property in a way that is inconsistent with the agreement that it was to be dealt with in a particular way for the benefit of the ultimate beneficiary; see, for example, Charles v Fraser .
PERIODICAL PAYMENTS: Perfectly imperfect
Written by Rayden Solicitors
Che Meakinsreports on the courts’ discretion when considering the parties’ circumstances as a whole, and the importance of understanding the intention behind an order
In Mutch v Mutch  the court was concerned with an appeal by the wife against the setting aside of an order that extended the term of her spousal maintenance. The Court of Appeal’s decision serves as a reminder that:
FINANCIAL PROVISION: An open door
Written by Hart Brown
Vanessa McMurtrieexamines the lessons to be learnt from the outcome in the long-running case of Wyatt v Vince
If ever there was a good example of why divorcees of modest means should agree a clean-break dismissal of, at the very least, their capital claims, Wyatt v Vince  is it. It took the parties five years to sort out their outstanding claims, some 32 years after they separated. The legal bill for the wife is believed to be significant. The husband fought the matter out of principle, and could afford to throw money at the case. But what can we learn from this relatively unusual case, and pass on to our ordinary-wealth clients?
Personal Injury Law Journal
CREDIT HIRE: The latest instalment in the litigation saga
Written by No. 5 Chambers
Maria Mullareflects on replacement vehicle issues that have been addressed by the court in recent claims
Claims for personal injury involving road traffic accident victims often include the cost of a replacement vehicle. It has been queried if credit hire litigation is going to come to an end. Post Karl Stevens v Equity Syndicate Management Limited  credit hire claims remain strongly disputed. The courts are consistently asked to adjudicate on some of the issues which are explored below.
CASE REPORT: Hayden v Maidstone and Tunbridge Wells NHS Trust  EWHC 1121 (QB)
Written by 12 King's Bench Walk
Late surveillance footage; disclosure; fraud; expert evidence; adjournment
This case is an important illustration of the tension between the imperative of procedural discipline on the one hand and the inclination to permit deployment of surveillance evidence to expose potential fraud on the other.
COSTS: The appeal of QOCS
Written by Legal Costs Negotiators Ltd
Paul Jonesexplores a case concerning whether a costs order applied to an appeal
It is now over three years since the bulk of the Jackson reforms were introduced on 1 April 2013 and many of the key elements are still giving rise to fundamental issues of application. The recent case of Parker v Butler , for example, examines a fundamental issues regarding the application of Qualified One Way Costs Shifting (QOCS) – whether it applies to appeals or not?
JURISDICTION: The armed services and the conflict of laws
Written by Old Square Chambers
Philip Meadoutlines how the court decided which country’s law was applicable to an accident overseas
In Rai v Ministry of Defence (2016), the court had to determine whether the Rome II reg 864/2007 applied and to identify what was the proper law of the tort (Alberta law being the law of the place of the accident, or English law). The claimant was a serving Ghurkha who, as part of adventurous training, was sent to Canada. In Canada he received training provided by a Canadian company (Lazy H Trail Limited) contracted to provide services, under a contract governed by Alberta law, for the benefit of the British Army. The circumstances of the accident were that the claimant was kicked by a horse on the first day of training, as he attempted to clean the horse’s hoof, thereby suffering a head injury. The claimant brought a claim for breach of a non-delegable duty of care in negligence against the Ministry of Defence.
LIMITATION ACT 1980: Delays in asbestos claims
Laura Elfieldexamines the decisions in cases outside the primary limitation period
In asbestos claims, the time lag between exposure and the onset of symptoms is typically between 15 and 40 years. So while the normal rules as to limitation in personal injury claims apply, such claims do have an almost uniquely long tail. By the time a cause of action accrues, workplaces may have been demolished; businesses shut down; witnesses may have died; and documentary evidence may have been lost.
Procurement and Outsourcing Journal
IT: Better safe than sorry
Written by Nabarro LLP
In the second part of an examination of security risks in outsourcing,
Dr Sam De Silvahighlights the issues to be considered when drafting contracts
The first part of this article (‘Secure services’, POJ30, May/June 2016, p7) outlined the background to security risks and types of security requirements. This article will set out further areas in the contract which should be addressed, including:
REGULATION: Safe passage
Written by Penningtons Manches LLP
John Dohertyand Richard Reeve-Youngexplore the vexed question of legal professional privilege in the context of increasing regulation
In a breakfast meeting in support of Youth At Risk on 9 March 2016, ‘The Scope and Role of the Legal Professional Privilege and its proper place in the context of corporate internal investigation’, Lord Neuberger commented on the increasingly contentious issue of the application of legal professional privilege (LPP) to communications/documents generated by lawyers in the context of corporate internal investigations. This area of the law is in sharp focus at present and developing swiftly, driven by greater regulatory enforcement, especially in the areas of bribery and corruption, which carry significant fines and prison sentences. Perhaps somewhat counter-intuitively, we turn first to Lord Neuberger’s concluding remarks, in which he empathises with the role of a professional adviser in an increasingly complex and fast-moving world (para 25):
HOUSING: All I want is a room somewhere...
Written by Clifford Chance LLP
Nigel Howorthand Michael Coxallreport on significant planning reforms
The Housing and Planning Act 2016 (the Act) has received Royal Assent. It provides framework powers for a number of significant planning reforms including the requirements to provide starter homes within residential development, a new route to planning permission through ‘permission in principle’, a disputes mechanism for parties struggling to agree terms of a section 106 agreement, and new powers to override private rights to replace the current ‘section 237’ powers. In this article, we comment on the principle elements of planning-related reform.
MODERN SLAVERY ACT: Transparently fair
Written by Penningtons Manches LLP
Chris Syderlooks at the potential impact of the Modern Slavery Act
The UK’s Modern Slavery Act 2015 (the Act) not only sets out stronger criminal sanctions against those who profit from this form of gross human exploitation, but has provided society with the opportunity to scrutinise and hold businesses more accountable for what they are doing to counter modern slavery. The Act requires both UK and foreign companies and other commercial organisations (including partnerships and LLPs) that carry out any business involving goods and/or services in the UK, and have a global annual turnover of £36m or more, to prepare and publish a slavery and human trafficking statement (a statement) for each financial year ‘as soon as reasonably practicable after the end of each financial year’. Businesses with a year end of 31 March 2016 were the first required to publish a statement under the Transparency in Supply Chains clause.
CONTRACT: Word of mouth
Written by DAC Beachcroft LLP
Craig Bennettconsiders a recent Court of Appeal decision on the oral variation of contracts
Many contracts, including PFI project agreements, include a provision which prohibits oral variations and only permits variations when they are in writing.
Property Law Journal
CONSTRUCTION FOCUS: Care in word and deed
Written by John Starr
John Starroutlines the court’s stance on anti-oral variation clauses
After several years without a decision on ‘no oral variation’ or ‘anti-oral variation’ clauses, two have come along at once. Such a clause in a contract purports to prevent any variation of the terms of that contract unless such variation is in writing and signed by the parties. The idea of such clauses is to promote certainty and avoid false or frivolous claims of an oral agreement, and arguably they could also usefully prevent a person in a large organisation producing a document which unwittingly and unintentionally is inconsistent with a provision in a contract between the organisation and a counterparty.
PROPRIETARY ESTOPPEL: A separate cause of action?
Written by University of Greenwich
Mark Pawlowskiasks whether there is scope for giving effect to informal land agreements by applying the doctrine of proprietary estoppel
In Yeoman’s Row Management Ltd v Cobbe , Lord Scott indicated that an agreement to acquire an interest in land which did not comply with s2(1) of the Law of Property (Miscellaneous Provisions) Act (the 1989 Act) could not be saved by the application of proprietary estoppel. Although s2(5) of the 1989 Act expressly makes exception for ‘resulting, implied or constructive trusts’, it significantly makes no reference at all to proprietary estoppel. In the words of Lord Scott:
INJUNCTIONS: Importance of good conduct
Written by Berwin Leighton Paisner LLP
A ‘right to light’ case has lessons for developers wishing to avoid an injunction.
Rashpal Soomalexplores the nature of the court’s discretion
Any professional advising developers in particular needs to be aware of the circumstances in which an injunction is likely to be awarded by a court. General commercial or contract lawyers are perhaps less familiar with the remedies of specific performance or the grant of an injunction, but both remedies (equitable in nature) are very familiar to property lawyers. English law has long regarded property and appurtenant property rights to be unique rather than akin to interchangeable commodities or services. Because of the concept that each piece of land or estate is unique, an injunction has often been readily awarded to protect against any interference – no matter how minor – with property or appurtenant property rights such as easements or restrictive covenants. The traditional approach was that if an interference with a property right occurred, then an injunction would be granted unless there were exceptional circumstances. Therefore even if only one person was impacted and a hugely beneficial development was potentially compromised, an injunction would still be the starting point. The only recognised exception would be if the person impacted stated in open correspondence that they were really after money, not an injunction.
PLANNING UPDATE : Simply the best?
Written by Dentons
Stephen Ashworthreviews what ‘best consideration’ means in practice and how it is affecting the property market
In a world of increasing devolution and local responsibility, local authorities still need ministerial consent to dispose of land at less than best consideration. Why is this the case, and what does this mean in practice?
FORFEITURE: Proceed with caution
Written by Walker Morris LLP
A recent High Court case means more uncertainty for landlords on relief from forfeiture.
Martin McKeagueprovides 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.
Trusts and Estates Law & Tax Journal
ECCLESIASTICAL COURTS : A grave matter
Written by Laytons
Liz Braudegives the lowdown on the jurisdiction of the consistory courts, with reference to recent cases
Few practitioners have experience of the consistory court, an ecclesiastical court, which can trace its origins to the 11th century and the arrival of William I in England. While many functions of the ecclesiastical courts, such as probate and divorce, have moved to the civil courts, the consistory court retains jurisdiction in matters relating to church buildings and to consecrated land. Each diocese has its own consistory court which is presided over by a chancellor – a lawyer of at least seven years standing. Applications to the court are in the form of a petition.
BOOK REVIEW: Worth its weight
Written by Brabners LLP
Duncan Baileyreviews the latest version of Ray & McLaughlin’s Practical Inheritance Tax Planning
What an initially daunting book: 45mm thick, 900 odd pages and no pictures or thumb spaces between the words.
COURT OF PROTECTION: Best interests
Written by Radcliffe Chambers
Howard Smithsummarises the position on the bestowing of gifts and other benefits when a person lacks capacity
In cases where a person (P) lacks capacity to manage their financial affairs, questions often arise of whether P’s assets should be used to make a gift or confer some other benefit on a third party.
TAX: A successful flip-flop
Written by Kingsley Napley LLP
Claire Randalland Katie Allardoutline the tax implications of Bowring v HMRC, which concerned a scheme to reduce CGT on capital payments by a trust
In Bowring v HMRC  the Upper Tribunal found that a scheme designed to reduce capital gains tax due on capital payments by a trust, commonly known as the ‘flip-flop II’, was effective. This case is, of course, of interest to those who implemented flip-flop II schemes before anti-avoidance legislation was introduced to block them in the Finance Act 2003. This type of scheme is no longer effective. However, the judge’s reasoning on the meaning of indirect transfers to beneficiaries under s97(5) of the TCGA 1992 is generally applicable. The judgment therefore provides a useful insight for those involved in tax planning as to how the courts are likely to decide on similar issues in the future. However, before undertaking a more in-depth analysis of the Upper Tier’s decision, it is first useful to set out the main provisions of the legislation and the basis upon which the parties deployed their respective arguments.
NEGLIGENCE: No shortcuts for solicitors
Written by 4 New Square Chambers
Scott Allenand Josh Folkardhighlight a case brought by disappointed beneficiaries against a financial adviser
In the interesting recent case of Herring v Shorts Financial Services , two disappointed beneficiaries attempted to blame the testatrix’s financial adviser, rather than her solicitor, for the fact that they were short-changed within her will. It was argued first, that the solicitor could off-load some of his will-making responsibility onto the IFA, by relying without further verification on certain information provided by the IFA, and second, that a cause of action could be pursued by the beneficiaries against the IFA. The court rejected both propositions on the facts of the case, but gave an interesting indication that White v Jones  might not be the only route to a cause of action for frustrated beneficiaries.