Thu05252017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal

  • IT: The appliance of science
    Written by

    Tom White and Claire Curtis explore how technology is revolutionising dispute resolution

    Technology and the law is certainly not a new partnership, although it is fair to say that the legal sector has traditionally not embraced technology as readily as some others. Whether such reluctance is borne out of tradition, an aversion to risk, a disinclination to move with the times, or a lack of resources, the truth is that technology is here to stay and offers the legal sector an opportunity to offer a more efficient, cost-effective service.

  • PRACTICE: Menu à la contract
    Written by

    James Popperwell and Nikolas Ireland examine a recent case looking at contract formation

    The High Court’s recent decision in MacInnes v Gross [2017] provides a cautionary tale for those who conduct business without formal written contracts. It also provides a reminder of the law relating to contract formation, whether an intention to create legal relations has been established and the importance of certainty of key terms.

  • INSOLVENCY: Tried and trusted
    Written by

    Kathryn Maclennan takes a view on the impact of a recent decision on trusts created by IVAs

    The Court of Appeal (CoA) decision in Green (Supervisor of the Voluntary Arrangement of James Patrick Wright) v Wright [2017] was handed down on 1 March 2017 and brings some long-needed clarity to the insolvency industry regarding the position with trusts created by an individual voluntary arrangement (IVA). While that clarity is certainly welcome, the decision given has a number of implications for insolvency practitioners (IPs), debtors and lenders alike.

  • CONTRACT: Nohow or contrariwise
    Written by

    Paul Brehony and William Gow consider the pendulum of case law in contractual interpretation

    In Investors Compensation Scheme Ltd v West Bromwich Building Society [1997], Leggatt LJ cited Alice Through the Looking Glass when rejecting the interpretation adopted by the first instance court. He said that its interpretation was ‘not an available meaning of the words’ and was ‘unimpressed by the alleged commercial nonsense of the alternative construction’. Lord Hoffman took a different view in the House of Lords. ‘I will say at once that I prefer the approach of the learned judge’, he said, in support of the first instance analysis. He asserted that ‘almost all the old intellectual baggage of “legal” interpretation has been discarded’ and set out the following five principles of contractual interpretation:

  • DISCLOSURE: Blind data
    Written by

    Gwendoline Davies guides the way through the obligations of data protection and disclosure

    The extent of a data controller’s obligations to respond to data subject access requests (DSARs), and in particular the interaction with legal privilege and litigation, has featured in a number of recent high-profile cases. DSARs are increasingly being used as a quick and cheap alternative to formal disclosure, or for other tactical reasons in the early stages of a dispute. There are a number of potential problem areas.

View All

Employment Law Journal

  • WHISTLEBLOWING: True or false?
    Written by

    Employers need to take care before they discipline someone for knowingly making a false disclosure, warns Christopher Tutton

    Whistleblowing has been in the news recently after it was reported that financial regulators were investigating the boss of Barclays, Jes Staley, after he admitted trying to unmask the author of two anonymous letters sent to the bank’s board. In his defence, Mr Staley said the whistleblower was trying to ‘maliciously smear’ and harass a senior colleague but Barclays told the media it would be formally reprimanding Mr Staley and he would face a ‘very significant’ cut to his bonus.

  • MISCONDUCT DISMISSALS: Lessons from three recent cases

    Rebecca McGuirk and Anna Scott outline how to carry out a fair dismissal in light of recent case law

    Employers dealing with misconduct should always tread with caution. In particular, it is essential they carry out any dismissal fairly in accordance with s98(4) of the Employment Rights Act 1996. This article looks at three recent cases involving misconduct dismissals, which considered various tricky issues such as:

  • ILL-HEALTH DISMISSALS: Waiting game

    The Court of Appeal has recently considered whether an employer should postpone dismissing an employee on long-term sick leave who suddenly claims they are fit to return. Lorna Scully reports

    In O’Brien v Bolton St Catherine’s Academy [2017], the Court of Appeal gave some guidance on when it is reasonable to expect an employer to delay in dismissing an employee on long-term sickness absence. This article examines the judgment, which provides a useful reminder of the factors an employer should consider when deciding whether it is appropriate to dismiss.

  • TERMINATION: When does notice of dismissal take effect?
    Written by

    An employee’s contract will usually specify the period of notice they are entitled to receive if they are dismissed, but when does the notice period start to run? Phil Allen looks at a recent Court of Appeal judgment

    In Newcastle upon Tyne NHS Foundation Trust v Haywood [2017], the Court of Appeal has confirmed that a notice period will only begin once it has actually been communicated to the employee. This provides legal certainty (at least to employees), but it does mean that employers must ensure an employee has received the notice of dismissal otherwise the dismissal may be delayed. The employer cannot just assume the employee has received correspondence sent to them.

  • CORPORATE GOVERNANCE: Fresh moves to curb executive pay
    Written by

    Alex Beidas analyses the latest proposals for large businesses to be more transparent over executive pay and to improve boardroom diversity

    The Business, Energy and Industrial Strategy Select Committee published its report on corporate governance reform on 5 April. Overall, the report does not recommend a profound overhaul of the UK’s corporate governance regime but does identify areas for improvement, with more powers for the Financial Reporting Council (FRC).

View All

Family Law Journal

  • PROHIBITED STEPS AND SPECIFIC ISSUE ORDERS: Stop right now
    Written by

    Jennifer Moore provides a reminder of the requirements for prohibited steps and specific issue orders and an update on recent case law

    There have been a number of cases recently that have considered the approach to be taken on an application for a specific issue or prohibited steps order, but first this article will revisit the remit of these broad-reaching orders and how they may be used in a variety of situations and scenarios. It is important to remember that such orders are useful tools for practitioners, and not just methods to prevent a parent removing a child from their existing place of residence or to seek permission to remove a child from their existing place of residence.

  • COHABITANTS: Home truths

    Mark Pawlowski summarises how a non-owning cohabitant can obtain capital provision under the Children Act 1989

    In the typical case, a non-owning cohabitant will seek to claim a beneficial interest in their partner’s house by relying on a constructive trust based on either an express or inferred common intention between the parties that ownership of the property was to be shared. Assuming a common intention (coupled with the necessary detrimental reliance) is established, the task of the court is then to assess the actual proportions in which the parties intended to hold the property by reference to what they expressly agreed or, failing that, by a process of inference or imputation from the surrounding circumstances. This approach stems from the combined effect of the House of Lords’ rulings in Lloyds Bank plc v Rosset [1990] and Stack v Dowden [2007] and the Supreme Court decision in Jones v Kernott [2012].

  • DIVORCE: Finding fault
    Written by

    Emma Morris and Lara Myers look at the factors that may prevent pronouncement of a decree, and the increasing calls for the introduction of no-fault divorce

    Unlike any other type of legal contract, the contract of marriage involves taking on life-changing financial consequences without being told in advance what they actually are. This would seem wrong and unfair, although marriage is of course more than the sum of its legal parts. But how can you agree to something if you do not know what the consequences of entering into that agreement are? Would it really be so difficult for basic information to be provided to couples at the point they register their wish to marry, even in a simple leaflet form? This should not be seen as a deterrent to marriage, as if one is blind as to the obligations and consequences that will arise in the event that the marriage fails, consent on entering the union is fettered at best.

  • INTERNATIONAL FOCUS: Le même mais différent
    Written by

    Izzy Walsh and Floriane Laruelle compare the contrat de mariage with prenuptial agreements

    Approximately 165,000 French citizens live in the UK (Population of the United Kingdom by Country of Birth and Nationality, ONS, 2015), and 157,000 British citizens in France (What information is there on British migrants living in Europe?, ONS, January 2017). These statistics mean that it is ever more important to have a basic understanding of how each legal system works and to be able to navigate between the two.

  • INHERITANCE ACT: Competing claims

    Yorke Eaton and Christopher Noel examine whether the Supreme Court decision in Ilott v The Blue Cross reinforces the principle of testamentary freedom in financial provision cases

    On 15 March 2017 the Supreme Court handed down its judgment in Ilott v The Blue Cross [2017]. The case involved a daughter’s long estrangement from her mother, a bitter family feud and a residuary bequest leaving the mother’s estate to charities. The Supreme Court unanimously allowed the charities’ appeal and overturned the previous decision of the Court of Appeal (Ilott v Mitson [2015]), reinstating the judgment at first instance and the award of £50,000 to the claimant (Ilott v Mitson [2014]). The Court of Appeal had substantially increased the award, which had surprised many observers.

View All

Personal Injury Law Journal

  • CASE REPORT: Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151

    Duty of care; A&E; head injury; waiting times

    In Darnley v Croydon Health Services NHS Trust [2017] the court looked at what, if any, duty is owed by a receptionist of an A&E department to a patient in respect of the provision of information. By a majority it was held that no duty is owed to provide correct information about waiting times.

  • CONSENT TO MEDICAL TREATMENT: Changing priorities
    Written by

    Paul Sankey investigates a decision in the Court of Appeal after it had applied the Montgomery test

    The recent decision in Webster v Burton Hospitals NHS Foundation Trust [2017] is significant as the first Court of Appeal judgment applying the new law in relation to a doctor’s duty to advise, as set out by the Supreme Court in Montgomery v Lanarkshire Health Board [2015].

  • COSTS: Interesting times
    Written by

    After the discount rate cut, Paul Jones predicts increased legal disputes over interest on legal costs

    While the legal and insurance professions come to terms with the slashing of the discount rate from 2.5% to -0.75%, the issue of interest rates on legal costs, while much less of a headline grabber, continues to be an important consideration for costs practitioners. Indeed, while the discount rate now languishes in the negative and the special account rate is not much better at 0.5%, the interest rate for legal costs judgments remains at a very healthy 8% where it has been since 1 April 1993. So how did this huge differential come to pass and what are its effects?

  • PERIODICAL PAYMENTS AND LUMP SUMS : A lifetime commitment
    Written by

    Jennifer Stone, Nick Leech, Andrew Sands and Nick Martin reflect on the implications of the change in the discount rate

    In order to understand the current discount rate, it is useful to appreciate what has led us to this point. For a large portion of the last century, lawyers and judges were reluctant to utilise consistent calculations for the compensation for future losses. This created great uncertainty and arguably unfairness in awards of damages.

  • ACCOMMODATION: Living with a negative discount rate
    Written by

    Nigel Spencer Ley reviews the effect of the new discount rate on accommodation cases like Roberts v Johnstone

    Amid apocalyptic warnings from insurers as to the impact of the change in the discount rate, there is one small piece of good news for defendants: if the method for calculating damages for the additional capital cost of new accommodation set out in Roberts v Johnstone [1989] is applied strictly, a claimant purchasing more expensive accommodation as a result of their disability will have to pay damages to the defendant.

View All

Procurement and Outsourcing Journal

  • PLANNING: Without a plan(ner)
    Written by

    Peter Kershaw voices his growing concern at the lack of involvement of planning law expertise in the long-term strategies of universities and local authorities

    With increased competition from national and international competitors, and rising student numbers, universities are competing against each other for the best students who are increasingly savvy about where they choose to work, live and play. Universities around the globe are therefore necessarily investing in higher quality, multi-faceted and mixed-use environments to try and achieve their long-term strategic missions. In doing so, their focus is very much on creating enhanced student experiences and trying to enhance the university’s role within the local community by creating linkages with local businesses and local authorities.

  • CORRUPTION: Punishing pay-offs

    John Doherty and Nicole Finlayson provide a timely update on bribery and corruption

    Bribery and corruption are firmly in the spotlight for 2017, with an ever-increasing commitment from regulators in the UK and abroad to work together and take a harder line against companies which fall foul of anti-corruption laws. The results can be seen in the wave of high-profile investigations and record-breaking prosecutions and fines that have hit the headlines over the past few years.

  • UPDATE: Seeing the Wood for the trees

    Rebecca Williams and David Wright examine a recent Supreme Court judgment

    The very recent judgment (29 March 2017) of the UK Supreme Court in Wood v Capita Insurance Services Ltd [2017] is an important clarification of the English courts’ approach to the interpretation of the meaning of words in a contract.

  • BREXIT: (Un)happy endings
    Written by

    Graeme Young, Caroline Hobson and Ruth Derruau assess a potential Brexit pitfall

    The Financial Times (FT) recently reported that (10 April 2017):

  • JUDICIAL REVIEW: Standing tall
    Written by

    Stephen Sellers reports on recent case law on the ‘standing’ to apply for judicial review

    In the recent case of Wylde v Waverley Borough Council [2017], five claimants attempted to challenge the variation of a development agreement using judicial review proceedings, on the grounds that it was in breach of the Public Procurement Regulations 2006, in relation to public works concessions.

View All

Property Law Journal

  • BREAK CLAUSES: Rigour not reasonableness
    Written by

    Christopher Morris sets out the current position on advanced payment apportionments and the law of implied contractual terms

    Just over a year on from the Supreme Court’s decision in Marks & Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd [2015], the impact of what is widely considered to be a significant case, both in the academic domain and commercial practice, can be critically examined. In this intervening period a sizeable body of higher court judgments have amassed, which may indicate the practical effect of the decision. But can academics and practitioners alike now rest easily in the knowledge that this area of law is firmly settled?

  • CONSTRUCTION FOCUS: Risky business
    Written by

    Letters of intent can lead to uncertainty and costly disputes. John Starr discusses recent cases

    Letters of intent are widely used in the construction industry as a means of allowing work to start on site (or at least for the procurement of long-lead items) before the formal construction contract has been negotiated. They will usually allow the contractor to get on with certain tasks up to a certain stage or maximum fee cap.

  • BENEFICIAL OWNERSHIP: Behind the veil
    Written by

    James Brown and Mark Pawlowski consider the possibility of disclosing beneficial interests on the land register

    Property lawyers will be familiar with the so-called ‘curtain principle’ under which beneficial interests are kept off the face of the land register and hidden behind the veil or curtain of registration. The principle has been enshrined in statute since the Land Transfer Act 1875, which provided (in s83(1)) that:

  • DILAPIDATIONS CLAIMS: A damaging judgment
    Written by

    Tim Rayner assesses good practice when claiming costs in dilapidations claims

    The case of Car Giant Ltd v London Borough of Hammersmith & Fulham [2017] concerned a claim for damages for terminal dilapidations. In particular the claim by the landlords (Car Giant and Acredart) was for damages for dilapidations following expiry of the lease.

  • CONTRACT: A question of interpretation

    Sandra Clarke examines the factors that determine a contract for the disposition of an interest in land

    The recent Court of Appeal decision in Rollerteam Ltd v Riley [2016] adds to the decided cases surrounding s2(1), Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989), a provision that has required considerable judicial interpretation. This article considers the main aspects of the section that have required consideration.

View All

Trusts and Estates Law & Tax Journal

  • VARIATION: Keeping up-to-date

    Mary Ashley looks at modernising trusts through variation

    Once a trust is created, the trustees are effectively bound by the terms of it. At times, this can mean that trustees must obey outdated directions of a trust instrument which can lead to uncertainty, inflexibility and the potential for the trust to be brought to a premature end.

  • TRUSTEES : Who pays?
    Written by

    John Greenfield and Elaine Gray outline recent Channel Island decisions on the personal liability of trustees

    This article reviews a series of judgments delivered in 2014 and 2015 by the Guernsey Court of Appeal in the long-running Tchenguiz litigation. In particular it is worth looking at a judgment delivered on the 29 October 2014 Investec Trust (Guernsey) Ltd & ors v Glenalla Properties Ltd, which provided the first ever judicial interpretation of the statutory regime introduced by the laws of Guernsey and Jersey as to the personal liability of trustees for any obligations arising out of a Channel Island trust.

  • GUIDANCE UPDATE: Practice tips

    Simon Edwards sums up key recent guidance of which practitioners should be aware

    March heralded not only spring but also two new sets of guidance, one from the Law Society relating to the disclosure of wills and the other from the Office of the Public Guardian relating to the duties of professional attorneys.

  • TRUSTS: Do your homework
    Written by

    Nigel Sanders examines changes of trustees and protectors in contentious circumstances

    Most modern trust instruments will contain provisions which grant certain individuals the power to effect a change of trustee or protector. It is well established in Jersey law that such a power is a fiduciary one: see Re Bird Charitable Trust [2008]. The legal principles as a matter of Jersey law that will apply to the exercise of these fiduciary powers of appointment of new trustees and protectors have been the subject of a number of Royal Court decisions. However, cases of particular note in recent times, in terms of the issues to be addressed when appointments are challenged, and the costs of those proceedings, were the Royal Court’s decisions in Representation of Jasmine Trustees Ltd [2015] and In the Matter of the Piedmont Trust and the Riviera Trust [2016]. The first decision provided useful guidance with regard to the test and approach that the court will apply when judging whether the exercise of a power of appointment was lawful. The second decision provided an analysis of the principles and considerations that are applied to the costs of any proceedings challenging such appointments.

  • 1975 ACT CLAIMS: Dead end
    Written by

    Katherine Pymont reflects on the lessons from Roberts v Fresco [2017]

    The High Court has held in Roberts v Fresco [2017] that a husband or wife’s right to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) does not survive for the benefit of his or her estate.

View All