Legal News

Southern Gas Networks plc v Thames Water Utilities Ltd [2018] EWCA Civ 33, [2018] All ER ( D) 132 ( Jan) What are the practical implications of this case? The key takeaway for advisers to suppliers is that common law causes of action may endure alongside the detailed statutory scheme governing undertakers. That remains so even when a dedicated statutory liability clause exists that could yield a remedy on identical facts. Whether the common law persists is ultimately a matter of construing the specific provisions in play. Clauses that negate exoneration can assist, but they are not essential. The court’s reasoning draws on a well-established line of dicta: mere differences between the statute and the common law do not suffice; to displace the common law, the court must identify an ‘inconsistency’ or ‘incompatibility’ between them. For instance, if the common law would confer a more...

What are the practical implications of this case? Zurich Insurance Plc v Nightscene Ltd [2017] Lexis Citation 445. This ruling is significant, first and foremost, for its analysis of the application of the rule in Shah [2001] EWCA Civ 527 to Deeds executed by companies. Those acquainted with Shah will remember that it addressed the effectiveness of a Deed executed by private individuals. They contended the Deed was ineffective because their signatures had not been attested at the time of signing, so the requirements of s1 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) were not fulfilled. The court rejected that case, holding the individuals were estopped from denying the Deed’s validity, essentially because it appeared, on its face, to have been duly executed when it reached the receiving party. This decision logically confirms that the Shah...

What are the practical implications of this case? The bond was found to be triggered by insolvency alone because the parties had agreed a tailored clause to that effect. Even so, the ruling is of wider significance as it reinforces that, under the JCT termination regime: the contractor’s insolvency, by itself, is not a breach of contract by the contractor; and where, following insolvency, the contractor fails to remit sums due to the employer assessed under the contract—for example, the cost of engaging others to complete the works—that failure amounts to a breach of contract This distinction is important where an employer must first establish a contractor breach before calling on a performance bond. That is the position under the unamended ABI Model Form—for a suggested change on this point, see Practice Note: Amendments to ABI Model Form of Guarantee Bond. What was the...

What are the practical implications of this case? Under statutory limitation principles, an equitable set-off defence is ordinarily not caught by a time bar. Typically, limitation statutes render a claim unenforceable rather than erasing the underlying debt or liability. That is, time limits usually bar remedies without destroying the obligation itself. Hence the defence remains available. Consequently, equitable set-off, operating as a shield and not as enforcement, can still neutralise a claim for defendants who have acted a touch late. However, in this matter the High Court confirmed the parties’ contractual freedom to stipulate a different result: that their contractual time limit extinguishes the underlying liability entirely. Applying the now well-rehearsed canons of contractual construction, Mrs Justice May emphasised the need to read each agreement within its own context. This stands as a reminder to contracting parties not to assume that statutory...

Original news UBS AG ( London Branch) and another v Kommunale Wasserwerke Leipzig; UBS Ltd v Depfa Bank plc; UBS AG ( London Branch) v Landesbank Baden- Württemberg [2017] EWCA Civ 1567, [2017] All ER ( D) 119 ( Oct). The Court of Appeal ( Civil Division) concluded that the judge had been wrong to decide that the financial advisers were acting as the claimants’ agents when arranging for their client, the principal defendant, to enter into a single tranche collateralised debt obligation ( STCDO), and to treat any bribe as within that agency, thereby fixing the claimants with legal responsibility despite their lack of knowledge. The court further held that, because the claimants dishonestly assisted the advisers’ abuse of their fiduciary duty to the principal defendant, the bribe tainted the claimants’ conscience, making it inequitable for them to enforce the STCDO secured through that...

Original news Interserve Construction Ltd v Hitachi Zosen Inova AG [2017] EWHC 2633 ( TCC), [2017] All ER ( D) 82 ( Nov) What are the practical implications of this case? Although the outcome rested largely on the parties’ bespoke terms, the case underscores the need to examine termination provisions with care both when contracting and before attempting to terminate. It also indicates that, when interpreting the parties’ chosen wording, the court is unlikely to construe it in a manner that fails to give operative effect to expressions such as ‘subject to’. What was the background? Hitachi, the EPC contractor for an energy from waste plant in Worcestershire, engaged Interserve as sub‑contractor. Dissatisfied with Interserve’s performance and delay, Hitachi served a notice under sub‑clause 43.1 of the sub‑contract, invoking grounds (h) and (q). Those grounds provided that, if Hitachi failed to proceed regularly or...

What crisis is the UK currently facing in terms of housing? Anyone paying even minimal attention recognises the shortage of truly affordable homes. Aspiring first-time buyers struggle ever more to step onto the property ladder, rents continue to rocket, and homelessness is climbing. Earlier in 2017, trade union campaigners and community figures issued an open letter demanding more social housing and condemning the ‘severe harm’ caused by ‘precarious, unaffordable, substandard’ homes. They sensibly stressed that building genuinely affordable dwellings is essential, and that this hinges on sustained government funding and resolve. In May 2017, Inside Housing reported that fewer than half of Right to Buy replacements qualify as social housing. Inside Housing further noted that Sheffield Hallam University, for the Consortium of Associations in the South East, warned that government proposals to cap housing benefit at Local Housing Allowance levels would exclude 84% of young...

When and why is the new DIFC Courts Technology and Construction Division ( TCD) opening? By way of context, Dubai operates under a civil law framework, with its court system governed by the UAE Civil Procedures Code. Yet Dubai also hosts the Dubai International Financial Centre ( DIFC), a financial free zone. The DIFC constitutes a distinct ‘offshore’ common law jurisdiction, with its own courts modelled on the English Commercial Court, and is separate from the ‘onshore’ Dubai courts. On 15 August 2017, following a public consultation in March and April 2017, the DIFC Courts confirmed the TCD would launch in October 2017. As to the rationale, construction is a major industry in the United Arab Emirates and across the Middle East. Disputes are frequent, often high in value and technically intricate, and they arise regularly. A specialist forum to hear such cases is...

Original news Blue v Ashley [2017] EWHC 1928 ( Comm), [2017] All ER ( D) 198 ( Jul) Briefly, what was the background to this case and the issues before the court? Jeffrey Blue, an investment banker, spent an evening drinking with Mike Ashley, founder of Sports Direct, at the Horse & Groom in London’s West End. The night was arranged to present Mr Ashley to the sales team of Sports Direct’s potential new corporate brokers. As the night wore on, and beer was taken by everyone save one attendee, talk moved to Sports Direct’s share price. Mr Blue contended that, during that gathering, Mr Ashley pledged to pay him £15m if he could lift the Sports Direct share price to £8—about twice its level then—within three years. The issue before Leggatt J was whether, in that pub, Mr Ashley and Mr Blue...

Original news Redman (suing as widow and administratrix of the estate of Redman, deceased) v Zurich Insurance plc and another [2017] EWHC 1919 ( QB), [2017] All ER ( D) 07 ( Aug) The Queen’s Bench Division struck out a widow’s claim brought under TP( RAI) A 2010 against the first defendant, the insurer of the second defendant employer of her husband, who died in 2013. The court held that the second defendant became a “relevant person” for the purposes of s 1 when it was voluntarily wound up in 2014, predating the commencement of TP( RAI) A 2010 on 1 August 2016. It also concluded that the second defendant incurred the liability, within the same section, when the cause of action was complete, which likewise occurred before 2016. As the claim failed to satisfy either condition in s 1, the...

Original news Minerva ( Wandsworth) Ltd v Greenland Ram ( London) Ltd [2017] EWHC 1457 ( Ch), [2017] All ER ( D) 154 ( Jun) The Chancery Division found that the defendant company unlawfully blocked the claimant’s continuation of a construction scheme by declining to enter the requisite agreement with the local authority that would have permitted it to advance. The claimant was entitled to make its planning application at the time it did, and the defendant’s conduct amounted to a contractual breach by stopping the works from proceeding. What is the background to the case? Minerva ( Wandsworth) Ltd obtained planning consent to redevelop the Ram Brewery site in Wandsworth, South West London, featuring a 34‑storey residential tower, and entered into a section 106 Town and Country Planning Act 1990 agreement obliging the delivery of affordable housing within the scheme. Minerva then sold the site to...

Original news Halsall & Ors v Champion Consulting Ltd & Ors [2017] EWHC 1079 ( QB) What should dispute resolution lawyers take note of? Dispute resolution lawyers should note: the potentially broad consequences of the court’s conclusion that the defendants gave affirmative advice rather than merely passing on information ( SAAMCO). Absent a limitation defence, they would have faced liability for all losses the claimants suffered by entering the schemes professional advisers cannot invariably depend on their terms of business ( TOB) to restrict the retainer’s scope if those terms conflict with earlier clear representations On breach, the court used the Bolam test as refined by Bolitho. Yet Montgomery v Lanarkshire Health Board was not referred to, leaving uncertainty as to whether that approach still holds for negligence based on failing to warn of risks. The notion that the court need consider the...

The pitfalls of reducing the protection of reserved legal activity ( Ndole Assets Ltd v Designer M& E Services) Original news: Ndole Assets Ltd v Designer M& E Services UK Ltd [2017] EWHC 1148 ( TCC) What was your role in the case and what were the key issues? Our construction team acted for Designer M& E Services UK Ltd, a specialist mechanical and electrical sub-contractor, as defendant and applicant for strike out. Designer undertook works on a Hackney development in 2010 for the main contractor, Sheldon Construction SRVC ( London) Limited. Their contract was terminated in 2011, followed by multiple adjudications. Thereafter, Designer heard nothing for five years. During that interval, via a sequence of loan arrangements and assignments, a British Virgin Islands company, Ndole Assets Limited, came to assert the supposed cause of action against Designer. Ndole commenced proceedings in October 2016. An...

Original news Symbion Power LLC v Venco Imtiaz Construction Company [2017] EWHC 348 ( TCC) What are the practical implications of this case? This decision is predominantly fact-specific. Nevertheless, it stands as an illustration of the court applying the guidance on AA 1996, s 68 applications—particularly s 68(2)(d)—as articulated by Mr Justice Akenhead in So S for the Home Department v Raytheon. For a fuller discussion of those principles, see News Analysis: e- Borders award set aside and dispute to be reheard by new tribunal ( So S for the Home Department v Raytheon). The judgment is also another instance of an unsuccessful attempt to set aside an arbitral award for serious irregularity. As with many AA 1996, s 68 challenges, it confirms the demanding threshold applicants must meet before the court will exercise its powers under AA 1996, s 68(3). Although the dispute stemmed from the...

Original news J Toomey Motors Ltd and Another v Chevrolet UK Ltd [2017] EWHC 276 ( Comm) What should commercial lawyers take note of? Commercial practitioners should note the following: The court confirmed (in line with established authority) that a recital expressing intention, without operative effect, cannot override the contract’s operative terms. When applying the ‘commercial or practical coherence’ test for implying terms after the Supreme Court’s decision in Marks and Spencer v BNP Paribas, the court emphasised that coherence must be determined objectively from the viewpoint of the ‘officious bystander’, not merely one party’s standpoint. The court dismissed reliance on a course of dealing as an independent ground for implied terms, noting that although prior dealings may inform whether a term is to be implied, they do not create a separate category of implied terms solely by reason of such...

Original news Signature Realty Ltd v Fortis Developments Ltd and another [2016] EWHC 3583 ( Ch) What should IP & IT lawyers take note of? Any party may seek planning consent to develop land. Such consent attaches to the land itself and is not personal to the applicant. Plans are made publicly available, though any copyright licence is narrowly limited. Where an existing building is being redeveloped, originality can be contentious, but the threshold is not demanding. The key issue is the level of intellectual skill deployed in creating the drawings. In assessing infringement, the court examined similarities by reference to the artistic effort and labour embodied in the claimant’s drawings, disregarding features lacking originality. The question is whether what in the defendant’s work, taken from the claimant’s, amounts to a substantial part of the claimant’s work. The court held that several drawings were infringed and ordered an...

In brief: When is an expedited trial appropriate in a public procurement case? ( Joseph Gleave & Son Ltd v Secretary of State for Defence) Original news Joseph Gleave & Son Ltd v Secretary of State for Defence [2017] EWHC 238 ( TCC) What should public procurement lawyers take note of? The judgment offers a helpful recap of the principles for deciding applications for an expedited trial, together with the core questions when considering a stay. It also makes plain that, despite Directive 89/665/ EEC as amended (the Remedies Directive), there is no presumption in favour of speeding up proceedings in procurement disputes, whether the challenge arises before or after the tender process has concluded. Applied to the facts, two practical lessons stand out: First, any party contemplating expedition should alert the opponent at the earliest opportunity to evidence genuine urgency. Second, a...

Original news The Civil Proceedings Fees ( Amendment) Order 2016, SI 2016/1191 What are the changes to trial fees? Proposals to revise trial fees were first considered by the Civil Procedure Rule Committee ( CPRC) in December 2014, when implementation was projected for April 2015. For a detailed breakdown of the proposals, see News Analysis: Changes to court fees likely in force April 2015—abolishing refund of hearing fees for early settlement. The anticipated commencement date of April 2015 was subsequently recorded in the minutes of the CPRC’s February 2015 meeting. For further detail, see News Analysis: Changes to court fees in force 6 April 2015—abolishing refund of trial fees for early settlement and streamlining automatic strike out for non payment. But......

The UK remains the global frontrunner in offshore wind, with 5GW already operating and a goal of 10GW of installed capacity by 2020. The scale of schemes is growing steadily, helping to capture significant economies of scale. For example, in February 2016 DONG Energy announced plans to proceed with construction of the 1.2GW Hornsea Project One offshore wind farm, set to become the world’s largest offshore wind farm (and expected to use Siemens 7MW turbines). The UK’s referendum decision to leave the EU has sent shockwaves through political and investment communities. Regarding offshore wind, ministers rapidly signalled after the vote their intention to maintain investment in clean energy, including offshore wind. For instance, on 29 June 2016 Amber Rudd, then Secretary of State for Energy and Climate Change, stressed the ongoing intention to bring forward more offshore wind, subject to further cost...

Introduction Most observers consider that, on its own, Brexit is unlikely to materially alter the regulation of the UK oil and gas sector, including activities on the UK Continental Shelf ( UKCS). This stems largely from the UK government’s longstanding control of energy policy, encompassing the development of oil and gas reserves. Core policy areas—such as licensing and taxation of exploration, appraisal, development and production—have always been, and continue to be, determined by the UK government, though elements of the industry have been shaped by the EU. Nevertheless, the referendum has set in motion other significant shifts that may have a substantial effect on the UK’s oil and gas industry and the wider energy industry for the reasons set out below. Does European law still apply? Will the current legal and regulatory framework change once withdrawal from the EU is complete? The...