Counterfactual meaning

In this issue: Advertising, marketing and sponsorship Agency and distribution Consumer protection Contracts Contractual joint ventures International Daily and weekly news alerts Dates for your diary Trackers New and updated content Advertising, marketing and sponsorship ASA rulings—19 March 2025 A single complaint was made to the Advertising Standards Authority (ASA) about Haven Leisure Ltd’s claims on holiday pricing. The ASA upheld the complaint. See: LNB News 19/03/2025 11. Agency and distribution Recovery Partners GP Ltd v Rukhadze [2025] UKSC 10 The Supreme Court dismissed the appellants’ appeal against an order to account for profits earned in breach of duty; they were employees of the respondent companies and owed fiduciary duties. The court affirmed strict adherence to the fiduciary ‘no profit’ rule, rejecting arguments for a ‘but for’ causation test and for counterfactual enquiries into whether the gains could have been authorised if consent had been sought. See: Recovery Partners GP...

In this issue: Planning applications and decisions Planning judicial and statutory review Planning policy Heritage and natural environment LexTalk® Planning: a LexisNexis® community Daily and weekly news alerts New and updated content Planning applications and decisions MHCLG publishes new planning consultation direction for England The Ministry of Housing, Communities and Local Government (MHCLG) has issued the Town and Country Planning (Consultation) (England) Direction 2026, made under the Town and Country Planning (Development Management Procedure) (England) Order 2015, SI 2015/595. Under this Direction, local planning authorities (LPAs) must approach the Secretary of State before turning down planning consent for schemes of 150 or more dwellings or flats, where the application remains undetermined before 11 May 2026. See: LNB News 31/03/2026 29. MHCLG publishes planning committee reform response alongside consultation on draft regulations MHCLG has released its reply to the 2025 technical consultation on planning committee reform, together with the launch of a consultation on draft...

Medsted Associates Ltd v Canaccord Genuity Wealth (International) Ltd [2020] EWHC 2952 (Comm) What are the practical implications of this case? This judgment offers a clear examination of the contractual measure of damages affirmed in One Step (Support) Ltd v Morris-Garner and another [2018] UKSC 20. It is especially pertinent where a defendant advances a complex or persuasive counterfactual to justify a reduction in damages. The court held that to construct the proper counterfactual one must first pinpoint the relevant contractual obligation and the relevant breach. Speculative possibilities that sit beyond those core issues do not belong within the ‘had the contract been performed’ counterfactual. They are entirely outside the proper scope of the inquiry here. In this dispute, concerning breach of an introducing agreement, the pertinent contractual obligation was the payment of the introduction fee. The pertinent breach was the non-disclosure of trading and, as a result, the failure to pay the introduction fee. The court determined that whether trading would have continued if clients had known the...

Why are valuations necessary? Broadly, valuations for schemes of arrangement or Part 26A restructuring plans serve to contrast projections of (i) what creditors and shareholders recover within the scheme/plan against (ii) the business value and associated recoveries if no scheme/plan proceeded. The setting and method of sale can profoundly influence proceeds or value achieved on disposal. Because sale routes differ, the realised figure may vary markedly. When delivering a valuation, a valuer must adopt assumptions about how and in what circumstances an imagined sale would take place, including the route to market, timing and prevailing conditions. Accordingly, valuation exercises typically weigh the expected distributions under the proposed scheme or plan against the counterfactual position were the scheme or plan not implemented. For schemes or restructuring plans—often concerning financially stressed companies that may otherwise enter administration or liquidation—selecting the correct sales context or comparator is pivotal and, frequently, contentious...

In analysing the causation and remoteness aspects of a professional negligence claim When evaluating causation and remoteness in professional negligence, a sensible point of departure is the pair of 2021 Supreme Court authorities, Manchester Building Society v Grant Thornton (accountants’ negligence) and Khan v Meadows (clinical negligence). In both, heard by the same constitution, the court indicated that adopting the analysis set out below provides a structured way to examine the scope‑of‑duty principle, “but for” causation, and the foreseeability of harm within clinical negligence claims. The result of that exercise informs the proper extent of the claimant’s damages, consistent with the compensatory principle that the law, so far as money can, seeks to place the claimant in the position he or she would have occupied had the defendant not been negligent (Khan at para [58]). The analysis (at para [6] of Manchester, reproduced at para [28] of Khan) involves posing and answering the following questions: Is the harm (loss, injury and damage) which is the subject...

CASE HUB ARCHIVED — this hub captures the position as at the decision date of 3 September 2024; it is no longer maintained. See further, timeline. Case facts Summary of the UK merger probe into the expected purchase by T&L Sugars Limited of the UK packaging and distribution facility and the business-to-consumer operations of Tereos United Kingdom and Ireland Limited from Tereos SCA. The deal gives rise to horizontal overlaps concerning the supply of several categories of packaged sugar to business-to-consumer customers in the UK. Latest developments On 26 September 2024, the CMA published a notice (dated 25 September 2024) imposing a penalty on Tereos SCA and Tereos United Kingdom and Ireland under section 110 of the Enterprise Act 2002 for failing to comply with a section 109 notice requiring specified minutes and internal documents on board and corporate governance during phase 2. The CMA levied a £25,000 fine. Although Tereos replied to the notice, subsequent enquiries by the CMA concluded that Tereos, without...