Legal News

On 29 April 2020, the Fire Safety Bill received its second reading in the House of Commons and was also referred to a Public Bill Committee. The Bill will amend the Regulatory Reform ( Fire Safety) Order 2005, SI 2005/1541, to provide clearer guidance on the duties of the Responsible Person or duty-holder in multi-occupied, residential premises. Currently, under the Fire Safety Order, fire and rescue authorities hold enforcement powers over the shared parts of blocks of flats, for example entrance halls and landings. They do not possess such powers beyond the front doors of flats to act within individual homes, nor do they also have powers concerning the exterior of buildings. The Fire Safety Bill proposes amendments to the scope of the Fire Safety Order to make clear that the responsible person or duty-holder for multi-occupied residential buildings must manage and reduce fire risk relating to the...

Tim Sp A— Direzione e coordinamento Vivendi SA v Consip Sp A, Ministero dell’ Economia e delle Finanze Case C-395/18 What are the practical implications of this case? General implications This ruling is expected to trigger reconsideration of national procurement laws across EU Member States that impose automatic, rather than discretionary, exclusions. Under Article 57(4) of Directive 2014/24/ EU, contracting authorities may choose to bar tenderers shown to be unreliable—for example due to breaches of environmental or social duties, including accessibility rules for disabled persons ( Article 57(4)(a)). Member States may transpose these grounds with differing levels of rigour, provided the conditions align with general EU law (paras [33] and [34]). The Court of Justice delineated the scope of that discretion by confirming that Member States may require contracting authorities to exclude bidders for infringements of social and labour law committed by their nominated...

Secretary of State for Transport v Arriva Rail East Midlands Ltd ( Arriva) [2019] EWCA Civ 2259 (18 December 2019)) What are the practical implications of this case? This Court of Appeal ruling, which confirms the High Court’s earlier judgment, offers firm guidance on the distinct character of the Francovich damages cause of action and the limitation deadlines governing it. While confined to Regulation ( EC) 1370/2007 (the Railway Regulation), its reach is broader for breach of statutory duty claims and Francovich actions, so long as the latter persist within UK law. Where a claimant considers judicial review to contest a decision said to infringe EU law, the ordinary three-month period governs that challenge. However, for private law claims— even if public law grounds based on EU law are ongoing or echoed in Part 7 proceedings—the relevant time bar is the domestic...

Re JPF Clarke ( Construction) Limited (in a company voluntary arrangement); Maze Inns Ltd (in liquidation) and others v Hunt and others [2019] Lexis Citation 379 What are the practical implications of this case? It is vital that creditors substantiate the amounts set out in their proofs of debt, whether those proofs are to be assessed by an insolvency practitioner ( IP)—who performs a quasi-judicial function—or by the court on a challenge to an IP’s decision. Providing adequate evidence to the IP at the outset may remove the need to contest an allegedly erroneous determination in court. In many situations, the relevant events occurred years before the point when a creditor must persuade an IP or the court of an insolvent company’s liability, and the quantum of that liability. Accordingly, contemporaneous records are generally the most persuasive material, and clients should be...

For much of the UK’s membership of the EU, the interaction between European law and the domestic system has sparked debate. To many observers, it operates as a limitation—practically, if not as a strict matter of doctrine—on the constitutional tenet that Parliament, acting with the Crown, is sovereign. In that context, the European Union ( Withdrawal Agreement) Bill ( WAB) sets out a number of measures with significant consequences for how sovereignty is to be understood in the United Kingdom. Current status of EU law At present, section 2(1) of the European Communities Act 1972 ( ECA 1972) stipulates that all rights, powers, liabilities, obligations and restrictions created by or under the Treaties, together with all remedies and procedures they provide, are to take legal effect in the United Kingdom without further legislation. Those rights must be recognised, available and enforced in UK law, and...

Emagine Films Ltd v Mister Smith Entertainment Ltd and another company [2019] EWHC 2085 ( Ch) (30 July 2019) What are the practical implications of this case? This decision underlines how difficult it is to legislate for every eventuality in preliminary papers for complex deals, and how implied terms can be used to address unforeseen gaps. An unanticipated issue arose after the term sheet was signed: the producer declined to accept terms consistent with those originally contemplated. The problem did not lie in the term sheet anticipating further formal documentation; that feature did not, by itself, render the arrangement uncertain or ineffective. Rather, the difficulty stemmed from the producer’s refusal to agree to fundamental matters that both Mister Smith and Emagine had assumed would be accepted. In those circumstances, the court was willing to imply a term that brought the term sheet contract to an end. The...

What are the practical implications of this case? As with the rulings at first instance and on appeal, there are likely to be consequences in both the political and legal arenas. Politically, the judgment heaps considerable pressure on the PM and the government. This is an extraordinary ruling by the Supreme Court. The court concluded that the PM acted unlawfully and without adequate justification, preventing Parliament from fulfilling its constitutional roles both as a legislature and as the body tasked with holding the executive to account. It is difficult to characterise this outcome as anything other than an embarrassment for the PM. It amounts to a serious censure and, in the circumstances, it is unsurprising that there are already calls for the PM to ‘consider his position’. Parliament has been......

Pepe’s Piri Piri Ltd and another company v Junaid and others [2019] EWHC 2097 ( QB) What are the practical implications of this case? The claim proceeded on three tortious bases: (a) conspiracy to damage the claimant’s business by unlawful means (b) unlawful interference with the claimant’s business (c) procuring breach of contract Advisers should consider with care how to frame pleadings where several putative defendants appear to have acted together to the claimant’s detriment. At the outset, it can be prudent to advance as many alternative formulations as are properly arguable. Yet, as trial draws near, practitioners ought to confront the disclosure head‑on and decide if it serves their clients’ interests to persist with each strand. Ultimately, the claimant succeeded on only one tort—procuring breach of contract. That was because, unlike the other two, it does not demand an intention to injure the claimant, but instead requires...

Original News R v Alstom Network UK Ltd [2019] EWCA Crim 1318, [2019] All ER ( D) 133 ( Jul) Court of Appeal’s decision The Court of Appeal has rejected Alstom Network UK Ltd’s assertion that its 2018 conviction on a single count of conspiracy to corrupt followed an unfair trial. The appellate court dismissed the company’s challenge, which related to a €2.4m payment to Canadian shell company Construction et Gestion Nevco Inc to obtain a contract for infrastructure and trams in Tunisia. Alstom contended the proceedings were unfair as the directors central to the allegations were absent. The energy firm also argued the judge failed to give the jury adequate guidance on the basis for convicting a corporate entity where its ‘directing minds’—who could speak to their own knowledge and actions—were unable to attend the trial. Delivering the ruling, Lord Justice Peter Gross,...

Protector Forsikring ASA revealed in a submission to the Oslo Stock Exchange last week that an arbitration tribunal had thrown out its assertion that a reinsurance agreement with Munich Reinsurance Co ought to indemnify certain property losses from the inferno that swept through the high-rise block. The business did not reveal the location of the hearing. It added that no reserves had been earmarked for such a result and that a £6.9m hit would be recognised in the forthcoming financial statements. The tribunal made no order as to legal costs. Protector Forsikring insured the Royal Borough of Kensington and Chelsea, the owner of Grenfell Tower when a fire......

P.m. and Others (request for preliminary ruling) C-264/18 What are the practical implications of this case? Under the PCR 2015, a wide range of legal services let by public bodies fall within the ‘light‑touch’ regime in Chapter 3. As a result, awarding those contracts is governed by less burdensome requirements than those that apply to most other service procurements under the PCR 2015. Yet a narrower set of legal services—chiefly arbitration and conciliation work, together with representation in certain legal proceedings (and legal advice connected to such proceedings)—are carved out altogether from the procurement rules by regulation 10 of the PCR 2015. The dispute stems from a Belgian challenge to the exclusion of the relevant legal services under the Belgian counterpart to regulation 10. The applicants contended that excluding those services conflicted with the freedom of establishment and the freedom to provide services in the TFEU, and also...

Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another [2019] EWHC 1326 ( QB) What are the practical implications of the case? The practical effect of Moda International Brands Ltd v Gateley LLP (later known as Gateley Heritage LLP) and another is that summoning a third party to testify in a loss of chance claim does not, by itself, settle what would have occurred unless the court sees all pertinent material and the testimony is wholly reliable. In circumstances such as these—where the witness lacked credibility and there had not been full disclosure—the court dismissed the defendant’s submission that it should decide the likely result of the Moda– Mortar negotiations by applying the balance of probabilities. Consistently with Perry v Raleys Solicitors [2019] UKSC 5, [2019] All ER ( D) 59 ( Feb), the proper method was to...

Times Travel ( UK) LTD v Pakistan International Airlines Corporation [2019] EWCA Civ 828 What are the practical implications of this case? This judgment makes clear that a contract will not be rescinded for economic duress where: the pressure applied is lawful, and the party applying that pressure genuinely believes they are entitled to act as they did, even if that belief might be criticised as unreasonable The decision also underlines the limited statutory framework for commercial agreements, confirming that such contracts cannot be avoided simply because of the lawful use of a monopoly or disparities in power or bargaining strength. Any evolution of the law in these fields is a matter for Parliament rather than the common law... What was the background? Times Travel ( TT), a small family-run travel agency in Birmingham, was in 2008 accredited by the...

BV Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises, Inc. [2019] EWCA Civ 596 What are the practical implications of this case? This appeal sharpens the test for fraudulent misrepresentation and evidential presumption. The representee must show that the statement was a real, factor in the decision to enter the contract, consciously operating on their mind. Where a statement is of a kind likely to persuade, the law presumes it did so. Although that presumption is not easily displaced, the ruling underlines that the burden of proof remains with the claimant and is not flipped. The court also addressed transferred loss, confirming it as a helpful yet narrow exception to the basic rule that a claimant recovers only the loss they have sustained. In addition, the judgment serves as a reminder to respect the distinctness of companies in a corporate group when assessing loss. Parties cannot take...

WH Holding Ltd and another company v E20 Stadium LLP [2018] EWCA Civ 2652, [2018] All ER ( D) 17 ( Dec) What are the practical implications of this case? The decision carries significant consequences across commercial litigation, particularly matters where board minute records, litigation-related emails, or other confidential or off-the-record exchanges sit at the heart of the dispute. It reshapes practitioners’ approach to disclosure and tightens the reins on attempts to hide unhelpful material behind vague assertions of privilege. Practically, the Court of Appeal’s ruling demands much closer examination of litigation privilege by contentious lawyers. As a result, parties cannot automatically cloak minutes of internal meetings—where directors or staff debate commercial settlement—with litigation privilege if the conversation neither seeks evidence or advice for the case nor expressly or by necessary inference discloses the substance of legal advice. Put plainly, minutes of...

What impact do the Business Contract Terms ( Assignment of Receivables) Regulations 2018 have on rights of set-off (contractual and other)? The explanatory memorandum to the Business Contract Terms ( Assignment of Receivables) Regulations 2018, SI 2018/1254 (the Regulations), states plainly that these provisions are introduced to render ineffective terms in specified contracts that restrict the assignment of receivables, with effect from 31 December 2018. As a result, many businesses that were previously prevented by contractual limitations will now be able to assign receivables and utilise products such as invoice financing in relation to sums owed to them. This may influence the right of set-off, as some businesses could opt for rapid liquidity by assigning receivables to a third party through arrangements like invoice finance, rather than exercising any right of set-off against invoices presented to them. The principle of set-off is firmly...

SRCL Ltd v National Health Service Commissioning Board (also known as NHS England) [2018] EWHC 1985 ( TCC) What are the practical implications of this case? The court delivered a series of significant observations that merit close attention across multiple aspects of the dispute. On procedure, it highlighted the centrality of agreed lists of issues, stating that a List of Agreed Issues is an essential device in contemporary litigation, not just in the specialist courts but across the High Court. The court was distinctly unimpressed by SRCL’s effort to advance a new contention at trial that had not appeared on the agreed list, determining that parties should be bound by what they have settled in that list rather than treating it as merely indicative. As to limitation, the judgment demonstrates that the short time limits under the Public Contracts Regulations 2015 SI 2015/102 ( PCR...

Ineos Upstream Limited and another v The Lord Advocate [2018] CSOH 66 Why is this decision significant? This ruling matters because it tackles a highly charged issue: the development of unconventional oil and gas ( UOG), including hydraulic fracturing (fracking), and the competence of a devolved government, namely the Scottish government, to control that activity. It interests planning practitioners as it clarifies the reach of planning law and policy, and it is relevant to constitutional lawyers as it confirms that courts determine the legal consequences of governmental steps, regardless of how ministers characterise them. It also records an acknowledgement by the Scottish ministers that public statements heralding a fracking ban did not accurately represent the legal reality. What did the court decide? Lord Pentland, sitting in the Outer House of the Court of Session, refused Ineos Upstream Limited’s petition for judicial review. Ineos contended that the...

Ralph Kline Limited v Metropolitan and County Holdings Limited [2018] EWHC 64 ( Ch), [2018] All ER ( D) 160 ( Jan) What are the practical implications of the judgment? The principal consequences of this decision fall on the drafting of leases. Contemporary construction methods enable increasingly imaginative exploitation of the airspace above building roofs. In tightly populated urban districts, both the right to construct within that airspace and the right to enter it can therefore carry significant worth. When acting for a landlord who intends to reserve the building’s airspace, the lease should make this exclusion explicit within the definition of the demised premises. The effect of the judgment is that those preparing leases for landlords must expressly address airspace. Comparable care is required in managing the ramifications of omitting airspace from the demise—for example, how this bears upon any repairing and...

Clin v Walter Lilly & Co Ltd [2018] EWCA Civ 490, 177 Con LR 1 What are the practical implications of this case? The ruling shows that a construction contract may carry an implied term requiring the employer to pursue planning approvals. Yet it is unlikely to amount to an unqualified duty to secure those approvals, given the inherent unpredictability surrounding approvals. In real terms, a curtailed duty on the employer to ‘use all due diligence’ to obtain approvals may leave the contractor absorbing the fallout—typically extra expense and exposure to delay damages—if a local authority behaves unreasonably. The safer course is to stipulate in the contract, in express terms, who bears responsibility for planning approvals, the scope of that responsibility, and the ramifications if approvals are not forthcoming. What was the background? Walter Lilly was engaged by Mr Clin to undertake demolition,...