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
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
EMPLOYMENT STATUS: Short-term contracts and Equality Act protection
Written by Trowers & Hamlins LLP
The Court of Appeal has considered whether two court interpreters could bring discrimination claims despite ostensibly being self-employed.
Helen Cooksonand Anna Scottreport
In a recent decision, the Court of Appeal has emphasised the importance of taking mutuality of obligation into account when determining employment status.
UNFAIR DISMISSAL: The re-emergence of reinstatement?
Written by Macfarlanes LLP
Rosemary Wooderslooks at a recent Supreme Court decision on reinstatement and why the remedy is more commonly ordered in New Zealand than in the UK
The remedy of reinstatement is powerful: the employer must treat the employee in all respects as if they had never been dismissed (and if it fails to comply, it faces a penal award).
PRE-TERMINATION NEGOTIATIONS: Settlement discussions stay off the record
Written by Weightmans LLP
The EAT has delivered its first decision on the rules making conversations about ending an employment relationship inadmissible in tribunal proceedings.
It has always been difficult for employers and employees to raise the possibility of an agreed exit from employment in a way which the other party cannot later use against them. Since 2013, s111A of the Employment Rights Act 1996 has meant that evidence of pre-termination negotiations is inadmissible in unfair dismissal claims. Faithorn Farrell Timms LLP v Bailey  is the first appeal decision on this issue. This article looks at the judgment and what it means in practice.
DISCIPLINARY AND GRIEVANCE PROCEDURES: Decrypting the Acas code
Written by Dentons
Victoria Albonand Michael Bronsteinanalyse two recent EAT decisions which appear to give the green light to employers to ignore the Acas code when dealing with certain types of dismissal
An employer’s failure to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code) may result in a tribunal uplifting an employee’s compensation award by up to 25%. While the impact on unfair dismissal claims is mitigated by the cap on the compensatory award, no such comfort is available in relation to discrimination claims.
BREXIT: The immigration impact for employers
Written by Pinsent Masons
Euan Smithand Susan Haydiscuss the challenges that employers could face if the UK’s exit from the EU leads to restrictions on the free movement of workers
Immigration was a core concern of the ‘Vote Leave’ campaign and now that Brexit is going to take place, employers and their advisers understandably want to know what is going to happen to government policy in this area when the UK leaves the EU. As things stand, nobody knows the answer to that question. There remains a possibility that free movement of workers may continue, although the current political climate suggests that is unlikely.
Family Law Journal
DIVORCE: Silver splitters
Written by Weightmans LLP
Fiona O’Sullivanexamines the increase in divorce rates for older couples and the financial considerations that may apply in such cases
Figures published by the Office for National Statistics confirm that there were 126,716 divorces in the UK in 2013, a decrease of 2.9% when compared with 130,473 divorces in 2012. The statistics show that the overall number of divorces has decreased across almost all age groups with the exception of the over-50s where the rate of divorce has reached a 40-year high. The increasing number of couples aged 50 or over who are filing for divorce highlights a trend of ‘silver separations’ which has developed over the years and looks set to continue. The increase may have arisen quite simply because a bigger proportion of this age group are in fact married, rather than living together, or the increase may be fuelled by other factors.
THIRD-PARTY INTERESTS: Keeping it in the family
Written by Clarke Willmott LLP
Rayner Gricesets out key considerations and practical tips when dealing with multi-generational households and third-party property interests within families
A recent study by Aviva forecast that 3.8 million people aged between 21 and 34 will be living with their parents by 2025, a third more than at the moment. The number of households containing two or more families is also expected to rise from 1.5 million to 2.2 million. The main reason is the affordability of housing.
CHILDREN: Seen but not heard?
Written by Mundays LLP
Josh McEvoysuggests that long-established principles regarding children giving evidence may at long last be followed by the courts
The right of a child to be heard within family law proceedings has often provoked debate among legal professionals. The law has for a long time adopted a rather conventional, paternalistic approach to the giving of evidence by children, and historically decisions have been taken for children by appointed representatives with a presumption that those decisions represent the child’s best interests. In recent years we have seen a growing number of cases that have attempted to deal with this thorny issue, however, despite guidance from the Supreme Court back in 2010 (Re W (children) ) that judges should not presume that a child should not give evidence, many have remained somewhat conservative in their approach.
DISCLOSURE: Behind closed doors
Written by Rayden Solicitors
Lehna Hewittconsiders when information from financial remedy proceedings can be disclosed in related legal proceedings
Where criminal proceedings arise in relation to a child, in addition to care proceedings, it is recognised by both the family and criminal justice systems that the children involved and their families need consistent treatment. There is therefore a detailed and comprehensive Crown Prosecution Service (CPS) protocol dealing with the disclosure of information from family law proceedings involving children in related criminal proceedings (see www.legalease.co.uk/protocol). The position in relation to financial remedy proceedings is different however, and this article aims to provide a brief overview of how the courts deal with issues of cross-disclosure in financial remedy proceedings and the development of the case law in this area.
MEDIATION: Pushing boundaries
Written by Switalskis
Andrew Baineslooks at the conundrum of mediated agreements that may be ‘too good’ to work in practice
This article sets out my understanding of one major reason why a parenting couple can fail to follow an agreement they have come to in mediation. In a nutshell, the parties reach an agreement that, at the time, makes sense to them and meets their needs. However it places demands upon them that are beyond their day-to-day capacity to meet and so fails. How and why does this situation arise?
Personal Injury Law Journal
SERIOUS INCIDENT INVESTIGATIONS: Full disclosure of NHS records
Selena Plowdendiscusses the legal frameworks and likely objections to the release of documents by an NHS trust
This article addresses difficulties encountered by claimants when seeking disclosure of documents created by a defendant NHS trust during investigations into an adverse incident. Paragraph 3.2 of the revised Pre Action Protocol for the Resolution of Clinical Disputes specifically provides that:
CASE REPORT: Carder v The University of Exeter  EWCA Civ 790
Written by 12 King's Bench Walk
Asbestosis; asbestos exposure; liability; actionable damage
The Court of Appeal decided that a defendant was liable to compensate a claimant for a 2.3% contribution to his asbestosis in Carder v The University of Exeter .
WORKPLACE REGULATIONS: Closing the door on strict liability: a new ERRA of realism
Written by Keystone Law
Steven Conwayexplains the recent decision in Katie Cruz v Chief Constable of Lancashire  and why it hopefully signals the dawn of a new age for workplace claims
With the passing of s69 of the Enterprise and Regulatory Reform Act 2013 (ERRA), limitation will soon expire for most pre-Act cases, removing strict liability for breach of statutory duty.
COSTS: Unbefitting conduct
Written by Legal Costs Negotiators Ltd
Paul Jonesexamines a case where a successful defendant paid costs due to delayed disclosure
One of the most frequently raised issues in relation to costs is the conduct of the parties. This is not surprising given that both CPR 44.2 (court’s discretion as to costs) and CPR 44.4 (factors to be taken into account in deciding the amount of costs) expressly confirm that conduct is one of the issues the court must consider when making any costs order or assessment. Commonly, however, arguments over conduct descend into accusation and counter accusation between the parties which ultimately results in the court concluding that it was six of one and half a dozen of the other and declining to make any specific order on the issue. However, there are occasions where conduct can have a significant effect on the outcome of a costs dispute and the recent case of Chapman v Tameside Hospital NHS Trust  provides a good illustration of this and a cautionary tale.
CAUSATION: The sum of the parts
Matthew Whiteweighs up the ‘but for’ test and material contribution in cumulative cause cases
An article in this publication in 2013 (‘Breach of duty and causation, where are we now?’ by Christopher Sharp QC and Matthew White, PILJ120, November 2013, p6) considered the circumstances in which the court will infer that a breach of duty caused a claimant’s loss. An issue left for another day was that of cases in which there were cumulative causes of injury.
Procurement and Outsourcing Journal
PRICING: The root of all evil
Written by Nabarro LLP
Dr Sam De Silvareviews remuneration for service providers
There are a number of different pricing models that are used in outsourcing transactions. This is where the use of outside, independent consultants can be helpful because of their familiarity with different pricing models and their knowledge of going rates. While the customer will want to get the best price possible, it is important for the customer to understand that if the long-term relationship is to succeed, the service provider must make a reasonable return upon the investment that it is making in the outsourcing. A service provider that thinks that it is being underpaid will try to find ways to reduce its costs or increase the customer’s fees. The goal is to pay a fee that fairly rewards the service provider but does not overly reward the service provider to the detriment of the customer.
PLANNING: Good neighbours
Written by Freeths
Robert Brucesummarises proposed planning legislation
The government has recently announced that it will bring forward a new Neighbourhood Planning and Infrastructure Bill in the Queen’s Speech.
AGENCY: Not so secret agents
Written by University of York
Kayleigh Bloomfielddiscusses the (ir)revocability of agency agreements and constructive trusts upon insolvency
Agency is a universal and flexible institution fundamental to commerce. In a globalised commercial world, one of the most important decisions a business can make is the appointment of an intermediary to market and potentially distribute their products to markets that may otherwise be inaccessible or too difficult to manage principally. As such, agency and/or distribution agreements (ADAs) are regularly used by practitioners in the context of both domestic and international commercial transactions.
CONTRACT: The age of reason
Sarah Bolandconsiders a recent ruling on the UCTA unreasonableness test
The High Court has found that the requirement of reasonableness imposed by the Unfair Contract Terms Act 1977 (UCTA) can apply in circumstances where a party’s written standard terms and conditions are incorporated only in part and other terms are tailor-made: Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd .
INFRASTRUCTURE: Northern Lights
Written by Berwin Leighton Paisner LLP
Sheridan Tregerand Paul Graceexamine the condition of the ‘Northern Powerhouse’ concept and what it might mean for promoters of major development in planning terms
When informed of a rumour that he had died, the 19th century American author Mark Twain famously quipped ‘the reports of my death are greatly exaggerated’. Following the Brexit referendum last month, stakeholders are still waiting for similar confirmation about George Osborne’s ‘Northern Powerhouse’ strategy to boost economic growth in the North of England.
Property Law Journal
PLANNING UPDATE: A layer of complexity
Written by Dentons
Lucy McDonnellexamines the ramifications of the Localism Act five years on
The Localism Act 2011 obtained royal assent in November 2011, gradually bringing into effect a raft of legislation supporting the government’s communities-based agenda. Following the Conservative Party’s 2010 manifesto, subtitled ‘Invitation to join the government of Britain’, localism remained a focus of the coalition government, and remains a focus of the current government.
CONSTRUCTION FOCUS: When to refer
Written by John Starr
John Starranalyses a case that may widen the scope of construction adjudication
As will be well known to readers of this column, s108 of the Housing Grants, Construction and Regeneration Act 1996 says that a party to a construction contract has the right to refer a dispute arising under the contract for adjudication. The words ‘arising under’ are sometimes expanded in the contract itself, or by amendment, to include disputes arising under ‘or in connection with’ the contract. So what do the words ‘arising under’ actually mean? In a recent case described by the judge as raising an ‘arguably important area of construction law’, it was argued that a dispute about the terms on which a construction dispute had been settled was a dispute arising under the settlement agreement, rather than under the construction contract itself, and that it therefore could not be referred to adjudication under the provisions of the Act.
REPAIR: A sensible path
Written by Trowers & Hamlins LLP
Douglas Rhodesconsiders the residential landlord’s liability to repair external common parts
The facts of Edwards v Kumarasamy  are common to a vast number of blocks of flats across the country. Mr Kumarasamy was the long leaseholder of a flat within a block, which was accessed by a paved pathway leading to the main entrance door which opened onto a front hallway. Under the terms of the head lease, Mr Kumarasamy was granted an internal demise of the flat and access rights over the common parts. As is standard, the freeholder covenanted to maintain the common parts and Mr Kumarasamy covenanted to pay a service charge towards the maintenance costs. The head lease also contained a provision that the freeholder would not be liable for breach of the maintenance covenants until the leaseholder has given written notice to the freeholder and the freeholder has had a reasonable opportunity to remedy the disrepair.
BREAK CLAUSES: Beware the hypothetical tenant
Written by Rosling King LLP
Peter Lewishighlights the dangers to landlords of early break clauses when negotiating a renewal
With regard to rent valuation, decided cases demonstrate that it can be difficult to determine what impact certain clauses in leases will have when a lease is renewed. HHJ Mitchell, who gave judgment on Britel Fund Trustees Ltd v B&Q plc , elected to give due regard to the nature of comparables. The implications were that the market value was significantly discounted.
SERVICE CHARGES: Welcome clarity on major works
Written by Berwin Leighton Paisner LLP
A recent case makes clear that the consultation obligation lies with the superior landlord.
In the recent case of Leaseholders of Foundling Court and O’Donnell Court v The Mayor and Burgesses of the London Borough of Camden , the Upper Tribunal (Lands Chamber) (UT) held that a superior landlord was obliged to consult with its direct tenant and any subtenants, in order for the costs of major works to be recoverable via the service charge.
Trusts and Estates Law & Tax Journal
PROBATE: Laid to rest?
Written by 5 Stone Buildings
Alexander Drapkindiscusses a recent case which indicates the factors the court takes into account in a dispute over where a body should be buried
The case of Anstey v Mundle  concerned a dispute between one of Mr Carty’s daughters, Valerie, and on the other side another of Mr Carty’s daughters, Sonia, and one of his nieces, Cynthia. Mr Carty had died and the parties could not agree about how to dispose of his body. Valerie contended that Mr Carty’s body should be buried in England and the defendants argued that his body should be transported to Jamaica and interred there beside his mother.
TAX PLANNING: The gain plan
Written by Pump Court Tax Chambers
A recent case highlights the importance of meticulous implementation when tax planning.
This article discusses the First-tier Tribunal’s (FTT) decision in Trustees of the Morrison 2002 Maintenance Trust v HMRC .
PROPRIETARY ESTOPPEL: Considering detriment
William Batstoneexamines the Court of Appeal decision in Davies v Davies 
Tegwyn and Mary Davies have farmed in West Carmarthenshire since 1961 and they continue to do so now in their mid-seventies. They have three daughters: Enfys, Eirian and Eleri; and by the time Eirian was 17 it had become clear that she was the only one interested in taking over the farm. The press coverage of the case described her as the ‘Cowshed Cinderella’ because in court she said that she missed out on Young Farmers’ Club dances with her sisters because she had to muck out and do other chores on the farm. It was Eirian’s case that she undertook long hours of such work for low or no pay because of what her parents had told her about her succeeding to the farm. Eirian is an accomplished stockwoman whose hard work and passionate dedication helped her parents produce what Floyd LJ described in Davies v Davies  at  as ‘a prodigious Holstein pedigree milking herd and a highly successful business’. That earlier decision of the Court of Appeal dismissed the appeal by Tegwyn and Mary against the finding of HHJ Jarman QC in Davies v Davies  that Eirian had raised an equity against her parents by virtue of the principles of proprietary estoppel. The parties were unable to fulfil the hope expressed by Floyd LJ at :
ASSET PROTECTION: Unauthorised access
Written by Mishcon de Reya
Peter Steenand Bethan Byrneconsider firewall legislation and analyse the continued conflict with the English Family Division
The current buzzwords of the offshore worlds are ‘transparency’ and ‘accountability’. In that context, asset protection legislation, commonly known as ‘firewall’ legislation, can increasingly seem something of an anomaly. Firewall legislation seeks to defend and protect offshore trusts from attack – whether from creditors, spouses or heirs – and from pressure from the onshore world. Matters concerning trusts established in offshore jurisdictions are, instead, for the local court applying local law. The message from jurisdictions in which such legislation has been enacted is that local courts will not simply kowtow to orders made by onshore courts.
ILLEGALITY AND TRUSTS : The straight and narrow?
Patel v Mirza  establishes a flexible approach towards the illegality defence.
Gareth Keillorand Rosanna Pinkeranalyse the pros and cons
It has been established for almost 250 years that ‘no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act’ (Holman v Johnson ). However, the courts have been grappling ever since with the extent to which this maxim applies and precisely what it means. While public policy considerations have always underpinned this defence, the 1993 House of Lords decision in Tinsley v Milligan  introduced a new ‘reliance test’, effectively putting to one side considerations of public policy and instead focusing on whether the claimant is required to rely on their illegality in order to establish their claim. The decision in Tinsley has been much criticised and has ushered in a prolonged period of uncertainty and division regarding the correct approach to the defence. Conflicting approaches by the Supreme Court in cases such as Allen v Hounga  and Les Laboratoires Servier & Anor v Apotex Inc  have left this area of law in a state of confusion and disarray, and created what has been described as a ‘schism’.