December 2013/January 2014 #317 – Law Journals

Mediation: A costly refusal

Bryan Johnston assesses the price of failing to mediate following the Court of Appeal ruling in PGF ‘PGF confirms that ADR is firmly at the heart of the civil procedure regime. A request to engage in ADR cannot be ignored or unreasonably refused without the strong possibility of a costs sanction.’With Voltaire-esque flair, the Court …

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Case Study: It’s a matter of trust

Nathan Gopichandran investigates a custom with unforeseen consequences ‘Ultimately, Ullah v Ullah highlights the frailty of unwritten property rights and agreements.’ The recent High Court case of Ullah v Ullah [2013] highlighted the long standing custom within some parts of the Asian community of the family property and business being held by various family members …

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Right To Manage Claims: Questioning procedural integrity

Can a landlord raise issues relating to the procedures followed by a Right to Manage company which has served a claim notice? Andrew Skelly looks at a recent ruling ‘The decision in Fairhold resolves conflicting decisions of LVTs on whether a tribunal can consider issues that had not been included in a counter-notice; in short, …

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Adverse Possession: Artificial termination

What happens when tenant acquires possession without the landlord realising? Rebecca Allwood examines a case involving a periodic tenancy ‘Paragraph 8 of Schedule 1 of the Act confirms that the limitation period will only start to run once the landowner has been “dispossessed”. For this to happen there must be a person in possession in …

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Retail: Power to the pop-ups

Jon Dickins reviews a growing retail trend and the legal issues to be considered by all involved ‘A pop-up business could be a seasonal operation; a one-off trade tied to a specific event (such as a sports tournament), or someone just testing the water.’Retail property has, over the last few years, been fighting a losing …

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Expert Witnesses: Independence is key

Lisa Jamieson and Will Densham highlight the importance of choosing an expert witness with care ‘The recent decision in Proton Energy Group SA v Orlen Lietuva highlights the need for expert witnesses to have more than general knowledge of the discipline in which they are giving evidence and not be too closely connected with their …

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Service Charges: Heed the terms of the lease

Natasha Rees considers a decision that highlights the importance of complying with correct procedures when seeking to recover service charges ‘The payment of service charges is a matter of routine which follows annual accounting, payments on account and final balances. In view of this, a business-like approach to construction of the lease is unlikely to …

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Construction Focus: Waiving the right goodbye

John Starr discusses a case where a challenge to the adjudicator’s jurisdiction was held to have been made too late ‘When the winning party goes off to court to enforce the decision in its favour, the losing party may say that there has been some failure in the adjudication procedure that means that the adjudicator’s …

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