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Latest News

New Insolvency Rules from 6 April 2017

The Insolvency (England and Wales) Rules 2016 came into effect this month, replacing the Insolvency Rules 1986. The rules have been restructured, consolidated and modernised, with the intention of delivering efficiency savings through deregulation. The following is a brief round-up of some of the key features.

Two ECJ Judgments on Wearing the Islamic Headscarf at Work

In Case C-157/15 Achbita v G4S Secure Solutions NV, a Belgian reference, and Case C-188/15 Bougnaoui v Micropole SA, a French reference (14 March 2017) , the European Court of Justice (‘ECJ’) has considered headscarf bans in the workplace.

A veiled threat to religious freedom?

The recent decision of the European Court of Justice in Achbita v G4S Secure Solutions and Bougnaoui v Micropole, so far published only in press release form, has attracted widespread attention and a number of assumptions about its meaning and consequences. Not all of these are well founded.

Brexit – what rights have we really acquired?

When the UK joined the EU, British people got some new rights – for instance, to live and work in other member states – which they had never had before. British businesses gained new rights too, providing goods and services without being impeded by tariffs or measures of similar effect.

Changing the discount rate - what, when and why?

This afternoon there was an announcement to the London Stock Exchange of a forthcoming change to the discount rate in relation to calculating compensation payments. Most people had probably never heard of it this morning, but the development has wiped billions off the value of major insurers and looks set to be front page news tomorrow.

Genuinely Self-Employed or Worker? Another Court Decision on the Gig Economy

In Pimlico Plumbers and Charlie Mullins v Gary Smith [2017] EWCA Civ 51 (10 February 2017) the Court of Appeal upheld an Employment Tribunal decision that a plumber was a worker, rather than self-employed, thereby entitling him to pursue disability discrimination claims and claims for holiday pay and unauthorised deduction from wages.

Brexit – what does it mean for the City?

The UK’s financial services sector generates around 7% of GDP, pays about £60bn per year in tax, directly employs about 1.1m people, and makes a significant contribution to sustaining another million jobs in associated sectors such as accountancy, management consultancy and law.

Limitation period on a counterclaim – section 35 Limitation Act 1980

A party brings a claim within the limitation period, but can the defendant counterclaim, even though the limitation period for their own claim expired before the claimant’s claim was issued? In Al-Rawas v Hassan Khan & Co (a firm) [2017] EWCA Civ 42, the Court of Appeal considered the effect of s. 35 of the Limitation Act 1980 on the limitation period of an original set off or counterclaim and ruled that the answer to the question was “no”.

Church Schedule 9 exemptions prevail in Employment Tribunal case

Some of the implications of the steps that have been achieved towards equality, and particularly equality of marriage, are still being played out. The Employment Appeal Tribunal had recently to consider where the Church’s Schedule 9 exemptions under the Equality Act 2010 begin and end.

Church Schedule 9 exemptions prevail in Employment Tribunal case

Some of the implications of the steps that have been achieved towards equality, and particularly equality of marriage, are still being played out. The Employment Appeal Tribunal had recently to consider where the Church’s Schedule 9 exemptions under the Equality Act 2010 begin and end.

Enterprise Act 2016

Part 5 of the Enterprise Act 2016, which comes into force on 4 May 2017 seeks to deal with an oddity in English law the effect of which has been that an insured has no claim in damages against his insurer for the consequences of late payment of his claim. Possibly the best reported consequence of this rule comes from Sprung v Royal Insurance [1999] Lloyd’s Rep I.R. 111.

Court of Appeal Allows Appeal in Yadly Marketing

Arfan Khan was instructed as lead Counsel and led on the appeal. The appeal was allowed. The case is reported as Yadly Marketing v Secretary of State for the Home Department [2016] WLR (D) 621; [2016] EWCA Civ 1143.

Ulterior motives and discretion in bankruptcy proceedings

In Maud v Aabar Block SARL and another [2016] EWHC 2175 (Ch) the High Court considered the correct approach to exercising discretion in a bankruptcy petition where there was an ulterior object to the petitioners’ bringing of the petition which was also opposed by other creditors.

More cranes on the London skyline, but for how long?

The Deloitte Office Crane Survey for Winter 2016 makes for some very interesting post-Brexit reading. Construction momentum in London has slowed, with 40 new schemes starting over the past six months, compared with 51 in the previous survey.

No Fixed Costs on the Personal Injury Multi-Track

Over the last year or two a common issue in regards to costs in RTA litigation has presented itself at the allocation stage: whether the fixed costs regime continues to apply to a case which no longer continues under the RTA Low-Value Personal Injury Protocol but is allocated to the multi-track after being issued under Part 7.

CJEU disallows European trademark registration for puzzle cube

On the 10th November 2016 the CJEU held that a European trade mark for the three-dimensional representation of a puzzle (essentially a Rubik’s cube) could not continue to be registered as an EU trade mark as it offended against Article 7(1)(e)(ii) of the Trade Mark Regulation 40/94.

Bernard Pressman discusses the effect of the late filing of a defence

A decision which appears to have gone under the radar at the Chancery Division recently is that of Ian Billington v Davies [2016] EWHC 1919 (CH). This could be because it is a decision of a Deputy Master, though is still technically binding on a Judge sitting in the County Court.

Commercial: Is A Click Ever Enough?

Around Week Two of our law courses, we learned that guarantees must be in writing. This had an air of exoticism because it dated back to 1677 and an Act so old that it was a ‘Statute’; the Statute of Frauds.

The Rules of Hyperlinking

Posting a hyperlink to copyright works that appear on the internet without a copyright owner's consent is not an infringement, unless done for financial gain. So the CJEU ruled on 8 September 2016 in GS Media v Sanoma (Case C – 160/15).

Using computer technology to assist e-disclosure…

Using computer technology to assist with e-disclosure has always promised to reduce time and cost. For some years, computer software has been available to assist with the review process and now finally it is making an appearance in the UK.

When can unreasonable behaviour be costly?

In the conjoined appeals of Willow Court Management Co Ltd v Ratna Alexander, Shelley Sinclair v 231 Sussex Gardens Right to Manage Ltd, Raymond Stone v 54 Hogarth Road, London SW5 Management Ltd [2016] UKUT 290 (LC),

4 New Members

Chambers is delighted to welcome the arrival of four new members today, Monday 25 July.

Property: Ducking Anti-Oral Variation Clauses

If parties enter into a written contract providing that any alteration to the contract must be “set out in writing and signed on behalf of both parties before they take effect”, can the contract still be varied orally?

Update on suspended possession orders

In City West Housing Trust v Massey and Manchester & District HA v Roberts [2016] EWCA Civ 704 the Court of Appeal has set out some non-prescriptive guidance on how courts should exercise...

Procedure: Denton: Don’t blame the funder

The harder-edged approach to deadlines wrought by cases such as Denton v TH White [2014] 1 WLR 3926 has recently been considered in the context of delays in the grant of public funding.

Hills v Niksun [2016] EWCA Civ 115

On 1 March 2016 the Court of Appeal gave judgment in Hills v Niksun [2016] EWCA Civ 115. Mr Hills, the Respondent represented by Matthew Winn-Smith, was successful in resisting the appeal.

Fixed Costs v Indemnity Costs

Last week, the Court of Appeal, in the conjoined appeals of Broadhurst & Taylor v Tan & Smith [2016] EWCA Civ 94, settled the argument over which type of costs were applicable in the situation where,...

Effecting personal service of a bankruptcy petition

In Morby v Gate Gourmet Luxembourg IV Sarl and another [2016] EWHC 74 (Ch), the High Court has helpfully clarified the mechanism by which personal service of a bankruptcy petition can be effected when a debtor is not handed the petition or attempts to evade service.

The perils of late amendments

In Rahan Ali v Abu Bakar Siddique [2015] EWCA Civ 1258 the Court of Appeal reminded us of the perils of very late amendments.

The “proper purpose” rule

On 2 December 2015, the Supreme Court gave judgment in Eclairs Group Ltd v JKX Oil & Gas plc and Glengary Overseas Ltd v JKX Oil & Gas plc [2015] UKSC 71.

“Give me a Break”

Lecture on break clauses in commercial leases delivered at Lamb Chambers Property Seminar.

2015: A good year for contract law?

The direction of travel in commercial contract law has been towards freedom of contract and upholding the actual bargains reached by the parties, says Richard Hayes - www.solicitorsjournal.com

Infant settlements and success fees – taking money from a baby?

As any PI practitioner will know, solicitors’ success fees, previously recoverable from Defendants, can now only be recovered from their own clients’ general damages. In infant settlement cases, where any deduction from damages requires the permission of the Court, this poses particular problems.

Flanagan v Liontrust Investment Partners LLP and Others

Judicial decisions relating to Limited Liability Partnerships (“LLPs”) have been relatively rare since their statutory invention by the Limited Liability Partnerships Act 2000. Like London buses, two have now come along at once: the judgments of Warren J.

IPR Updates – July 2015: HUAWEI TECHNOLOGIES Co. Ltd. v ZTE Corp. (Case C-170-13) CJEU 16 July 2015

The Court of Justice of the European Union (CJEU) handed down an important decision on the 16 July 2015 dealing with the thorny issue of the balance to be struck between the rights of patent proprietors of patents that have become part of a European standard and the rights of third-parties who have not concluded an agreement with that patent holder for the use the protected technology – but have used it in any event to comply with the requirements of the EU standard.

Starbucks (HK) Ltd. v British Sky Broadcasting Group and Other (No.2) [2015] UKSC 31

The Supreme Court’s recent decision in Starbucks (HK) v BSB has upheld the longstanding principle that to bring an action in passing off the Claimant must have more than a reputation in the UK - it must have actual paying customers and that the application of this principle is not altered by the fact that the service in question is one that is known to individuals living in the UK.

Early Conciliation Certificates and the need for accuracy

Employment practitioners already know that, for tribunal claims started after May 2014, claimants must embark on the ACAS early conciliation process and, before lodging their claim, they must also obtain a certificate number from ACAS.

Re-issue of Pre-Action Protocols

Practitioners should be aware that new Pre-Action Protocols in respect of Personal Injury, Clinical Negligence, Professional Negligence, Judicial Review, Housing Disrepair and Possession Claims by Social Landlords all came into force on 6 April 2015.

Deregulation Act 2015 – tenancy deposits

The Deregulation Act 2015 received royal assent on 26 March 2015. It contains amendments to landlord and tenant legislation that will come into force during 2015. Sections 30 to 32 deal with tenancy deposits and are already in force.

Secure tenancies and succession

Was the decision of a local authority, in refusing the partner of a pre-April 2012 secure tenant the right to succeed to his tenancy because she had not resided with him for a continuous period of 12 months before his death, unreasonable or disproportionate?

Eviction without a court order

In R (ZH) v Newham LB; R (CN) v Lewisham LB [2014] UKSC 62, the Supreme Court has reaffirmed that, as a general principle, s. 3(2B) of the Protection from Eviction Act 1977 does not apply to licences granted by a local authority

Sims v Dacorum Borough Council [2014] UKSC 23

The Supreme Court reconsidered the rule in Hammersmith & Fulham LBC v Monk [1992] AC 478 under which one tenant can terminate a joint tenancy for all tenants by serving a unilateral notice on the landlord.

Robertson v Swift [2014] UKSC 50

18 months after the Court of Appeal handed down judgment partially in favour of Dr Robertson, the Supreme Court perfected his success by finding entirely in his favour in this small claim.

Expert evidence and Rome II

Jurisdiction: the law applicable under Council Regulation 864/2007 (“Rome II”) in the context of a decision about expert evidence was considered in Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138.

Holiday Pay and Commission

In the recent decision made by the European Court in Lock v British Gas Trading Limited [2014] WLR (D) 224 it was determined that EU law requires a worker’s statutory holiday pay to take commission payments into account: that is to say, a worker’s holiday pay should not be based solely on basic salary.

Obtaining title by criminal adverse possession

An application to the Land Registry to be registered as proprietor of land through adverse possession requires possession for the 10 years immediately preceding the application (Schedule 6, Land Registration Act 2002).

A costly break up

If a tenant paid rent due on the quarter day in full because he was uncertain that on that date he could meet the preconditions required to exercise the break clause,

The single county court

Whilst the introduction of the new Family Court on 22 April 2014 has received widespread publicity in both the popular and legal press, many will be surprised to learn that on the same day every one of the 173 county courts in England and Wales,

Procedure: – A more robust approach?

Has the Court of Appeal already forgotten the new “more robust” approach to applications for relief from sanctions introduced in Mitchell and reinforced in Durrant?

Procedure: Relief from sanctions

Any defaulting party who had lost all hope since Mitchell [2013] EWCA Civ 1537 may take some comfort from Lakatamia Shipping Co Ltd v Nobu Su & Ors

Insurance – Coles v Hetherton [2013] EWCA Civ 1704

The Court of Appeal has upheld the decision of Cooke J ([2012] EWHC 1599 (Comm) – see August 2012 Round-Up) and with it the repair arrangements of Royal & Sun Alliance (“RSA”). The key elements of the CA’s conclusions can be summarised as follows.

CPR 3.9 – relief from sanctions

In Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 the Court of Appeal gave its second decision on the new CPR 3.9.

CPR 3.9 – Relief from sanctions

The CA has given its first decision on the correct approach to the new version of CPR 3.9 in Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537.

Bull and Bull v Hall and Preddy [2013] UKSC 73

In 2008 the Appellants, who are committed Christians, refused the Respondents a double room at their private hotel on the grounds that the Respondents were a homosexual couple in a civil partnership.

Calculating damages for trespass (Dec 2013)

The case of Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308 provides useful guidance in relation to calculating damages for trespass to land.

PGFII SA v OMFS Company 1 Ltd

On 23rd October, in PGF II SA v OMFS Company 1 Ltd (2013) EWCA Civ 1288 the Court of Appeal (Kay, Beatson, Briggs LJJ) took the opportunity to consider

‘Diss’ing the law of distress

From 6 April 2014 the ancient self-help remedy of distress for rent is abolished and replaced by a process called Commercial Rent Arrears Recovery (‘CRAR’).

Action for price

Does section 49 of the Sale of Goods Act 1979 set out the only circumstances in which a seller of goods can maintain an action for the price?

Simson v Islington Borough Council

The claimant, while crossing the road, tripped on a defect in the carriageway of the road, located close to the kerb within a parking bay.

Equal pay: location, location,

To satisfy a tribunal that a comparator should be treated as being "in the same employment", a claimant would ordinarily need show that their comparator, if employed at their establishment, would be subject to the same or broadly similar employment terms that the claimant was employed under.

Retrospective orders in relation to service out of the jurisdiction

In Abela & Others v Baadarani [2013] UKSC 44 the SC was concerned with the circumstances in which a court may make an order retrospectively declaring that steps taken by a claimant to bring a claim form to the attention of a defendant should be treated as good service.

Regina (CN) v Lewisham London Borough

The SC decisions in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186 have had far reaching ramifications in standard possession proceedings,

All change at the Employment Tribunal

From 29th July 2013 the Employment Tribunal Constitution and Rules of Procedure Regulations 2013 (SI 2013/1237) comes into full force. The new procedural rules are flexible, clearer and more user-friendly.

Under-occupiers, be aware!

In the recent case of Holt v Reading Borough Council [2013] EWCA Civ 641 the CA held that it is open to the trial judge to make a conditional order for possession on the ground of under-occupation, even when no suitable alternative accommodation is available at the date of the possession hearing.

The Use of Arbitration in Criminal Cases

The author recently spoke at a conference in Saudi Arabia. The conference, held in Riayadh at the Naif Arab University for Security Sciences, dealt with the use of arbitration in criminal cases. The speakers included the former President of the American Arbitration, William K Slate.

ADR: International Cotton Arbitration

An article by Anthony Connerty on the arbitration of cotton disputes, concentrating in particular on the Liverpool – based International Cotton Association, will be published in the next edition of Arbitration International,

Costs: No U-Turns on the Road to Costs Management

From 1 April 2013 costs budgets and costs management orders are introduced for most multi-track claims. They place a limit on the amount of recoverable costs and are part of a raft of reforms introduced following the report of Sir Rupert Jackson on the cost of litigation.

Subletters be Warned!

The Prevention of Social Housing Fraud Act 2013, which received royal assent on 31 January 2013, and is yet to come into force, will represent a new era in the law relating to sub-letting.

Gaining and Losing Title to Registered Land

In Horace Parshall v Clara Hackney [2013] EWCA Civ 240 the appellant (“X”) appealed against a decision that the respondent (“Y”) had acquired possessory title to a parcel of land which had formed part of his property (“the disputed land”).

General: Interest on damages

Challinor v Julian Bellis & Co. [2013] EWHC 620 (Ch) and Sycamore Bidco Ltd v Breslin [2013] EWHC 174 (Ch) are cases addressing the issue of what rate of interest should be applied to damages.

Phillips & Co (A Firm) v Bath Housing [2012] EWCA Civ 1591

The appellant client had instructed the respondent solicitors to act on its behalf concerning possession of a flat. Their task was complete by the end of 2003. The solicitors’ fees had not been agreed, so they were entitled to claim a reasonable amount for the work done.

Ignorance is Not Bliss

‘Prescribed information’ about the Tenancy Deposit Scheme (‘TDS’) means just that. So the Court of Appeal has recently held in Ayannuga v Swindells [2012] EWCA Civ.

Civil Procedure: Less Leniency for Litigants in Person

Litigants in person are frequently afforded leniency in litigation. In the context of applications pursuant to CPR 39.3 and 13.3 there is a growing body of case law. One of the newest additions to this corpus is Tinkler v. Elliott [2012] EWCA Civ 1289.

Insurance: Coles v Hetheron [2012] EWHC 1599

The Commercial Court (Cooke J) has decided two preliminary issues in a test case concerning the legitimacy of RSA's repair arrangements following negligently caused damage to its insured's vehicles.

Civil Procedure: How not to apply

In CEF Holdings and anr v Brian Mundey and 23 ors [2012] EWHC 1524 the Court set down useful guidelines on how to comply with the obligation to make full and frank disclosure on without notice or proper notice applications.

A little local difficulty

The OED (Concise, 8th ed) gives as a definition of localism "attachment to a place", and "a limitation of ideas etc resulting from this". Who would accuse the Localism Act 2011 of lacking ideas, at least in the field of English housing law?

Let no employer put asunder

All is fair in love and work so say the Employment Appeal Tribunal (EAT) in the Dunn v Institute of Cemetery and Crematorium Management UKEAT/0531/10/DA.

Volenti and Animals

If a horse rider foresees the risk of a horse bucking, but does not foresee the risk of violent bucking, does this defeat the defence of volenti as set out in section 5(2) of the Animals Act 1971 ('the Act')? No, as the Court of Appeal recently found in Goldsmith v Patchcott [2012] EWCA Civ 183.

Harrison v Black Horse [2011] EWCA Civ 1128

The Court of Appeal judgment was handed down on 12th October 2011 in this case which arose from the sale of policies of payment protection insurance (“PPI”). In 2003 and 2006 the Harrisons took loans from the Defendant together with policies of PPI.

Dawkins v Carnival PLC [2011] EWCA Civ 1237

The Claimant (“C”) sustained soft tissue injuries to her knees and hands when she slipped on water in the cafeteria Conservatory area of the Defendant’s (“D”) cruise ship.

Insolvency: Obtaining possession

Can a bankruptcy order preclude the making of a possession order on the ground of rent arrears in respect of a property let on an assured tenancy? In short, no, as has recently been decided in Sharples v Places for People Homes Limited [2011] Civ EWCA 813.

Property: Warrants for possession - appeals

It is well known that a mortgagor cannot apply to set aside a warrant for possession after it has been executed unless he can show oppression or serious procedural irregularity.

Departure from Sportelli

Recently the Leasehold Valuation Tribunal accepted a departure from the “Sportelli doctrine”, namely the general rule that, in applying deferment yield in calculations of lease enfranchisement valuations, a rate of 5% should be used for flats to reflect the increased risk to freeholders of flats as opposed to houses, for which the rate is 4.75%.

Arbitration: New ICC Rules released

The new ICC Rules of Arbitration have been circulated. They have been three years in the making and come into effect on 1 January 2012. The last revision was in 1998 so it is not surprising that there are many changes. Most seek to speed up and thereby reduce the costs of the process.

Security for costs

Discussion of Huscroft v P&O Ferries Ltd [2010] EWCA Civ 1483, published in the New Law Journal and Butterworths' Civil Costs Newsletter

Update on Combat Immunity

In the recent case of Smith & Ors v MoD [2011] EWHC 1676, the MoD ("M") applied to strike out several claims brought in respect of the death or injury of British troops whilst on active military duty in Iraq.

Employment: A Reality Check

Mr X is an individual who provides valeting services for a car cleaning business - Y. He enters into a written contract with Y that expressly defines his relationship with Y as that of sub-contractor and not employee.

Costs: C v D [2011] EWCA Civ 646

C makes an offer to D headed "offer to settle under CPR Part 36". C includes that the offer will be "open for 21 days" from the date of the letter and also the costs' consequences of not accepting the offer within this "relevant period".

Tortious duty of care concurrent with contractual duty

In Robinson v. PE Jones [2011] EWCA Civ 9 CA (Civ Div) a homeowner ('R') appealed against a finding that the respondent builder ('J') did not automatically assume a duty of care in tort further to his contractual duty. J built R a house.

References, a cautionary tale

You are a 55-year-old lecturer. You join the staff of a University that has a role overseeing degree courses at colleges of further education. One such college is S. You worked there for 5 years leaving 6 years ago with an excellent reference.

Can a company harass its customers?

The administrative court has recently answered the question as to whether or not a company can harass its customers or, indeed, anyone else.

Does the bell again toll for Smith v Manchester Awards?

In Sharma v Noon Products Ltd, 7th April 2011 (Unreported), Mr Sharma ("C") worked as an unqualified repair engineer at the Defendant's (D) factory. During repairs on a piece of machinery, the tip of his index finger was sliced off.

Amin v Mullings [2011] EWHC 278 (QB)

Amin involved a road traffic accident where the First Claimant (C1) and First Defendant (D1) blamed each other for the accident and both brought a claim for damages, with both parties having entered into CFA agreements.

Civil Procedure: Disclosure 1 - 0 Privilege

To do justice and discourage litigants from “expert shopping” the Court of Appeal in the recent case of Ricky Edward Tubbs v JD Weatherspoon PLC [2011] EWCA Civ 136 CA, has again demonstrated a willingness to employ its wide ranging case management powers go behind the shield of a party’s privilege in a document.

Tenants and discrimination

The Equality Act 2010 came into force in October 2010. It has a potential impact on landlord and tenant relations in a number of areas.

Manner of dismissal matters: Johnson v Unisys again

Earlier this year the Court of Appeal took another look at the question of whether or not damages could be awarded at common law for the adverse impact of steps taken by an employer which culminate in a dismissal.

How to set-off - legally and equitably

In the recent case of Gary Fearns (T/A Autopaint International) v Anglo-Dutch Paint & Chemical Co Ltd & 5 Ors [2010] EWHC 2366 (CH) the Court undertook a cogent analysis of the law of set-off.

Blue Sphere Global Limited v HMRC [2010] EWCA Civ 517

This case recently resolved in favour of Blue Sphere in a conjoined appeal involving Mobilx, Calltell Telecom and Optotelelinks and has resulted in a restatement of the law by the Court of Appeal in cases where traders have become mixed up in a series of transactions that at some point involve a fraudsman.

Crunchtime

a discussion of the issues affecting landlords of commercial premises in the economic downturn, in particular in the case of tenant insolvency

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