Wed12132017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • REPUTATION MANAGEMENT: Lachaux must go on

    Adele Ashton and Jeremy Clarke-Williams examine the ‘serious harm’ test in defamation claims

    The reputation of a business can be a crucial factor in its success. With the rise of social media, a reputation which has been built up over years can be destroyed in an instant: anyone and everyone can publish negative, even unfounded, material with the potential for it to ‘go viral’. It is, in this online age, increasingly important for businesses to ensure their reputations remain intact and to take immediate action when false allegations have been published about them.

  • CONTRACT: Making your mind up
    Written by

    Tom Whittaker weighs up the judicial scrutiny of contractual discretion

    Contracts often confer obligations to make decisions, exercise discretion or form opinions on one or more parties, but such obligations can come with strings attached, both express (in the contract) and implied (by case law). Historically, implied limits on the exercise of contractual discretion have been clear and relatively easy to understand, but recent decisions have imported an additional and imprecise requirement of ‘reasonableness’ from judicial review decisions. It is therefore now increasingly common for parties to find their contractual decisions under scrutiny from the courts.

  • FRAUD: The whole truth and anything but the truth
    Written by

    Andrew Beck and Gwendoline Davies take an overview of remedies for commercial fraud, deceit and bribery

    Civil cases of fraud, deceit and bribery have hit the courts several times over recent months, revealing that there remains a murky side to some commercial dealings even in today’s highly regulated society. This article highlights some of the legal claims and remedies that can be available to help right such civil wrongs.

  • DISCLOSURE: Forcing change
    Written by

    Jeremy Andrews and Giles Hutt look at the latest proposals for disclosure reform

    Disclosure reform is not new. Lord Woolf attempted it in the 1990s, when the Civil Procedure Rules introduced the idea of ‘standard disclosure’ – a significant narrowing, we were told, of the traditional Peruvian Guano or ‘train of enquiry’ type, but not in practice very different.

  • ADR: Tough love – an obligation to mediate?
    Written by

    Sapna Garg discusses the recent interim report by the Civil Justice Council Working Group on ADR

    The Civil Justice Council’s (CJC) working group on ADR published a 98-page interim report in October 2017 urging stakeholders to offer their views by 15 December 2017 on various aspects of ADR (see: www.legalease.co.uk/civil-justice). It regards current use of ADR to be patchy and inadequate. The review follows on the heels of Briggs LJ’s final July 2016 report on the structure of the civil courts, which included his thoughts on ADR. He shone a spotlight on the substantial proportion of medium-value claims where mediation is insufficiently used and recommended resurrecting out-of-hours county court mediation services. He supported parties using ADR when accessing the new online court process but did not think that compelling parties to mediate was a good idea. Despite the majority of the working group agreeing that ADR should not be mandatory, in its report the group invites stakeholders to debate this important issue.

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Employment Law Journal

  • DISPUTE RESOLUTION: Workplace mediation – setting up a programme
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    Stephen Levinson looks at the benefits, challenges and practical issues involved in introducing an in-house mediation scheme

    Many more people are advising employers to adopt workplace mediation as a standard procedure to resolve conflicts. This article explores some of the issues that arise when considering this option.

  • EQUALITY ACT: How to prevent employee sexual harassment
    Written by

    Following the stream of high-profile allegations in the media, Keely Rushmore gives her tips on how to avoid sexual harassment claims and manage any complaints raised by employees

    The issue of sexual harassment has recently exploded in the media, with serious allegations being made against household names, including the film producer Harvey Weinstein and actors Kevin Spacey, Steven Seagal and Ben Affleck. The scandal is spreading to the political arena, with allegations made against George HW Bush and Bill Clinton. Closer to home, countless claims of sexual harassment are emerging from within Westminster. Sir Michael Fallon resigned as defence secretary after admitting his behaviour had ‘fallen below the high standards required’ in the role; a string of Labour politicians have had allegations made against them; and Carl Sargeant, a Welsh cabinet minister, committed suicide just days after being sacked following allegations of ‘unwanted attention, inappropriate touching or groping’.

  • RACIAL INEQUALITY: Why it's time to tackle the ethnicity pay gap
    Written by

    Businesses should take action to increase the number of people from an ethnic minority background on their boards and address their ethnicity pay gap or legislation will force them to do so, writes Melanie Stancliffe

    Recent media focus has been on gender inequality and harassment in workplaces like the BBC and the Houses of Parliament. Britain has the fifth largest gender pay gap in Europe and this has led the government to introduce laws requiring companies with 250 or more employees to publish gender pay figures by April 2018.

  • REASONS FOR DISMISSAL: Into the mind of the employer
    Written by

    Charles Wynn-Evans investigates how the courts and tribunals assess the reasons for an employer’s actions in dismissal and discrimination claims

    The employer’s reason or reasons for its actions can be crucial to the outcome of an employment-related claim. Is the employer’s knowledge just what the decision-maker knows or does it include relevant facts known to others in the organisation of which the decision-maker ought to have been aware? In both unfair dismissal and discrimination cases, a potentially challenging question is therefore whether the courts and tribunals should consider the knowledge or motivations of a person or persons other than the actual decision-maker which in some way have influenced the employer’s decision.

  • LITIGATION: Five reasons why your employment tribunal spend might increase next year
    Written by

    A cluster of recent cases and developments is likely to mean rising costs for employers faced with a tribunal claim, warn Phil Allen and Louise Singh

    After a few years in the wilderness, employment tribunal litigation is once again firmly at the forefront of every employer’s consciousness. Policy and HR best practice concerns are of course evergreen. However, the dialling back of claims following the introduction of employment tribunal fees changed the legal landscape dramatically, reshaping employment lawyers’ day-to-day workload and many employers’ approach to budgeting and risk management. Now the tables have turned and 2018 promises higher volumes of claims, each at potentially greater cost to employers. We outline the five key reasons why an employer’s tribunal spend might increase over the next 12 months.

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Family Law Journal

  • HADKINSON ORDERS: Harsh realities
    Written by

    Rachel Nicholl highlights a remedy available where a litigant wilfully fails to comply with a court order

    In Assoun v Assoun [No 1] [2017] and Assoun v Assoun [No 2] [2017] the Court of Appeal was concerned with a Hadkinson order made in financial proceedings where the husband argued that the use of the order was procedurally unfair, wrong in law and disproportionate.

  • TRUSTS: Divining intention
    Written by

    Abigail Lowther considers sham trusts and their effect on financial claims

    In ND v SD [2017] Roberts J considered sham trusts, the beneficial ownership of various shareholdings and an application to set aside a disposition under s37, Matrimonial Causes Act 1973 (MCA 1973).

  • CHILD ABDUCTION: Under pressure
    Written by

    Joanne Green looks at the limited circumstances in which an order made by consent may be set aside on the basis of duress

    Family practitioners will know that there are limited circumstances where the court will set aside a consent order. In financial proceedings, it is accepted that a consent order can be set aside if at the time that the order was made there was non-disclosure of some essential matter, fraud or misrepresentation, or a supervening (Barder) event that invalidates the whole basis of the order. In both Tommey v Tommey [1983] and Livesey (formerly Jenkins) v Jenkins [1984], whether undue influence could also be a ground for setting aside a consent order was considered, but the courts found that it could not be. This area of law has now been considered further in the child abduction case of SA v FA (setting aside consent order on ground of duress) [2017], with Holman J providing useful guidance on the matter.

  • IN PRACTICE: Holding all the cards
    Written by

    Andrew Baines explores the use of power in resolving issues arising from family breakdown

    Family lawyers have a certain reticence towards talking about power when their discussions take place, either by correspondence or in court. Somehow it just doesn’t seem right that the welfare of a child should be intimately bound up with issues of power. However, wherever there is conflict about what is in the best interests of a child, where there is disagreement as to what a child’s welfare demands, that conflict is almost always resolved through the use of power. Power comes in a number of guises and it isn’t equally distributed. This article seeks to shed a little light on how power manifests itself in conflicts concerning a child’s welfare.

  • CIVIL RESTRAINT ORDERS: Beyond control?
    Written by

    Danielle Taylor sets out the circumstances in which the courts may prohibit a party from making further applications, and the limitations of such orders

    The decision in Veluppillai v Veluppillai [2015] was widely reported, both in the legal world and the wider press, gaining attention due to the litigation conduct of the husband that not only included emails (including extreme expletive language and threats against Mostyn J and his clerk), but also a prosecution for assaulting the wife and her counsel during one of the hearings.

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Personal Injury Law Journal

  • CONDUCT: Hoisted by their own petard?

    In the first of two articles, Suzanne Chalmers and Jack Macaulay explore the current law relating to claimants’ illegality and dishonesty

    A ‘petard’ was a small bomb, used in the 16th century to blow up gates and walls. ‘Hoisted’ also bears a historical meaning – to be blown up. So, if you are hoisted by your own petard you are blown up by your own bomb; injured by the device that you sought to use to injure others. This expression is thus apposite to describe the consequences which may follow from a claimant’s illegal or dishonest conduct. There are two related issues to consider: what happens where the claimant’s illegal or criminal conduct forms part of the underlying facts which give rise to the claim, and the effect of the claimant’s criminal conduct or dishonesty when advancing claims.

  • CASE REPORT: Shaw v Kovac and anor [2017] EWCA Civ 1028

    Measure of damages for wrongful invasion of personal autonomy; compensation; cause of action; recusal; alleged bias

    In this case it was held that the appropriate measure of damages for wrongful invasion of a patient’s personal autonomy, arising from a failure to obtain informed consent, was general damages for pain, suffering and loss of amenity. The court refused to recognise compensation for ‘the unlawful invasion of the personal rights’ as a separate and free-standing cause of action.

  • QOCS AND SET-OFF: In the balance

    Paul McGrath highlights when defendants should consider obtaining an order and/or assessment of costs

    Where the standard provisions of QOCS apply, they do not bar an order for costs in the favour of the defendant, nor do they prevent an assessment of such costs taking place. They bar enforcement of the costs. This latter bar usually discourages any assessment taking place at all, but it is important to remember that the bar on enforcement does not in any way prevent the costs being ordered and the amount of costs being assessed.

  • FATAL ACCIDENTS ACT: Is it time for a change?
    Written by

    Stephanie Prior reports on whether cohabitees are at a disadvantage claiming damages

    There is no remedy for dependants of a deceased or the estate of the deceased at common law.

  • COSTS: The limits of dishonesty
    Written by

    Paul Jones looks at the effect of fundamental dishonesty on QOCS

    The American lawyer Clarence Darrow (most famous for his role in the Scopes Monkey Trial in 1925) considered that (The Story of My Life (1932)):

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Procurement and Outsourcing Journal

  • PROCEDURE: Tell me more
    Written by

    Fran Mussellwhite explores the principles behind the submission of supplementary information after the deadline for bid submissions

    A series of recent European cases have focused on the tricky issue of when a contracting authority may accept supplementary information from a bidder after the expiry of the bid submission deadline in order to clarify its bid.

  • CONFIDENTIALITY: Cards on the table

    Kerri Crossen, Jean-Anne Young and Patrick Kane examine confidentiality in Irish public procurement proceedings

    The Technology and Construction Court, one of the Senior Courts of England and Wales that regularly hears complex public procurement cases, has issued new guidance (the guidance note) on how public procurement claims should be managed both prior to the commencement of litigation and after the commencement of litigation. This article will examine its effect for Irish practitioners.

  • UK INFRASTRUCTURE: A strong and stable future?

    James Parker and Clare Eccles consider the future of infrastructure planning

    The 2010-15 Conservative-Liberal Democrat coalition government presided over what, in hindsight, could be heralded a ‘golden era’ for infrastructure planning in the UK. Helmed by Prime Minister David Cameron and Chancellor George Osborne, UK government support for the infrastructure sector seemed to be a fast rising stock. However, since Theresa May came to power in 2016, the impetus for infrastructure planning in the UK seems to have waned with the spotlight and political focus appearing to shift away from the sector. Not a great surprise given the ‘B’ word which fills most column inches. And we no longer mean ‘Boris’.

  • ENERGY: Ever ready for the future
    Written by

    Nathan Curtis, Dan Ballard and Ed Hobbs outline the key factors in relation to financing battery storage projects

    Based on our experience working on one of the first UK battery storage project financings, we look at what should be considered in projects of this type.

  • PRACTICE: Pride, prejudice and procurement
    Written by

    Chris Hoyle highlights the practice of preliminary market consultations

    It is a truth universally acknowledged, that a public-sector body in possession of a good budget must be in want of a decent supplier. How then should they overcome their prejudices in order to find a supplier who can provide them with the best value-for-money solution to meet their requirements? To test the truth of that dictum, and with thanks to Jane Austen, I’d like to focus on the search for a ‘good wife’ and specifically consider the practice of preliminary market consultations. My starting point is Reg 40 of the Public Contracts Regulations 2015 (PCR 2015).

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Property Law Journal

  • CONSTRUCTION FOCUS: Information or advice?
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    John Starr reports on two recent decisions that have reaffirmed the SAAMCO principle in cases of alleged negligence, highlighting the difference between informing and advising

    At a time when interest rates have just increased from 0.25% to 0.5% per annum (sensationalised by the media as ‘the first interest rate rise in a decade!’), I am reminded of the last time we had a downturn in the economy, back in 1989. Back then, the housing market collapsed and interest rates briefly hit 15%.

  • PLANNING UPDATE: What is a highway?
    Written by

    Michele Vas outlines a recent decision which reiterates what constitutes a ‘highway’

    The recent Court of Appeal judgment in the case of London Borough of Southwark v Transport for London [2017] serves as a useful reminder of the common law principles of what constitutes a highway and reaffirms that the extent of a highway authority’s interest in such land is restricted to the ‘top two spits’.

  • NUISANCE: Neighbourhood watch
    Written by

    David Schmitz considers how the principles in Coventry v Lawrence on nuisance and the character of the area might best be applied

    Among the many questions tackled by the Supreme Court in Coventry v Lawrence (No. 1) [2014] is the question: in a nuisance claim, where the court is considering the character of the area in order to decide whether an activity there amounts to a nuisance or not, what difference does it make if that character has been altered by activities on the defendant’s own land, and what further difference, if any, does it make if planning permission was given for those activities?

  • SDLT: Raising the roof
    Written by

    The stamp duty surcharge of 3% on second homes and buy-to-let properties is choking the market, and requires reform, argues Justin Neal

    As the latest report by the Royal Institution of Chartered Surveyors (RICS) recorded (www.legalease.co.uk/rics-oct-17), the UK is seeing a significant ‘stuttering’ in the property market with a decline in house prices and a subdued sale trend across most regions.

  • CASE UPDATE: Prét-à-porter penalties

    Duncan Brown reviews a case providing a timely reminder when drafting side letters

    The rule against penalties is an exception to the general principles of freedom to contract and that a contract should be enforceable in accordance with its terms. If a clause is a penalty, that clause is unenforceable and the court has no discretion to enforce it.

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Trusts and Estates Law & Tax Journal

  • EQUITABLE ACCOUNTING: Still relevant

    Daisy Brown explores how the courts will apply equitable accounting principles to co-owned trust property

    In the judgment handed down on 7 April this year in Davis v Jackson [2017], Snowden J had cause to consider in detail the principle commonly referred to as ‘equitable accounting’ between beneficiaries of trusts of land. The context was a claim by a trustee in bankruptcy for possession of a jointly-owned property and the facts were unusual, but the judgment is a welcome analysis of the more general right to an account between co-owners in a post-TLATA (Trusts of Land and Appointment of Trustees Act 1996), post-Stack v Dowden regime.

  • CHARITIES: Smoothing the way?
    Written by

    Paul Ridout and Jelena Serbic report on the Law Commission’s latest proposals for changes to charity law

    In August 2017 the Law Commission published its report Technical Issues in Charity Law, incorporating a draft Charities Bill. The Commission’s proposals form part of its charity law reform project and also pick up issues identified in Lord Hodgson’s 2012 review of the Charities Act 2006.

  • SUCCESSION PLANNING: Having your cake?

    Jennifer Emms considers the outcome of schemes used to reduce IHT on the family home and outlines best practice

    I am a fan of all things sweet, in particular, cake, whether of the sponge, fairy, or fruit variety. Autumn is a delightful time of year, not just due to the changing leaves and the start of crisp, cold days but because it heralds the beginning of my firm’s ‘bake off’. Contestants battle it out to wow their colleagues with an array of confectionary masterpieces and it is impossible to wander the corridor without appreciating the aroma of freshly baked goods: cookies; brownies; muffins… I digress. Lord Hutton once succinctly and, in my view, aptly, described the inheritance tax ‘gifts with reservation of benefit’ (or GWROB, as they are known) rules as legislation which ‘does not allow a donor to have his cake and eat it’. However, he also noted that (at least at that time) ‘there is nothing to stop him from carefully dividing up the cake, eating part and having the rest’.

  • WILLS: The perils of cutting corners
    Written by

    Robert Sheridan discusses current thinking on interpreting homemade wills

    At the time of his death, the testator, Mr Veljko Aleksic, was a very wealthy man. He had built up a property and share portfolio in the region of £2,000,000. He was well-placed to afford the modest cost of instructing a solicitor to draw up his will.

  • FIDUCIARY DUTIES: Staying virtuous
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    A recent Privy Council case indicates how the court will determine remedies and damages for breach of fiduciary duty. Joseph de Lacey explains

    On 27 March 2017 the Privy Council (PC) gave judgment in Akita Holdings Ltd v The Honourable Attorney General of The Turks and Caicos Islands [2017]. The judgment and the decisions of the lower courts provide a useful summary of the principles to be applied when determining:

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