Legal News

How to witness and attest a deed under the Law of Property ( Miscellaneous Provisions) Act 1989 ( Euro Securities & Finance v Barrett) Euro Securities & Finance Ltd v Barrett and others [2023] EWHC 51 ( Ch) What are the practical implications of this case? The safest route to prevent disputes over a deed’s validity is: all principal signatories execute at the same time and in the same location; any witness should be a non-party to the deed and observe the signatures physically, in person; and each witness should attest, separately, every signature they observed, doing so straightaway while remaining in the signatories’ presence. Each of these points ought to be documented in writing. That said, the judge in Euro Securities considered that the LP( MP) A 1989 may afford parties greater latitude. Although much of the discussion was obiter, in essence the judge...

Identified issues with the NSIP process The Action Plan observes that, although the current consenting route for Nationally Significant Infrastructure Projects ( NSIPs) under the Planning Act 2008 ( PA 2008) has served the UK effectively, the demands and challenges it must meet are evolving. The volume and sophistication of schemes is rising, and cumulative impacts—especially within offshore wind and the electricity networks sector—call for new remedies. There has been growth in the average time taken to decide whether to award development consent, growth in the quantity of documentation produced throughout the process, and growth in the tally of projects exposed to legal challenge. Proposed actions Against that backdrop, the government aims for the NSIP consenting system to deliver sound decisions, accelerate application handling, secure better environmental outcomes, treat communities more fairly, and be stronger in terms of resourcing. To achieve this, the Action Plan...

TP ICAP Ltd v NEX Group Ltd [2022] EWHC 2700 ( Comm) The claims for breach of warranty stemmed from two probes: one by the US Commodities Futures Trading Commission concerning swaps trading linked to bond issuances and another by a Frankfurt public prosecutor targeting a named director of a group entity in relation to cum-ex trading during the relevant period. In essence, the alleged breaches concerned warranties addressing the following: that no group company, officer, or employee had been the subject of any non-routine investigation of any kind by a ‘ Governmental Authority’ within the prior 18 months; and that no circumstances existed which could reasonably be expected to result in litigation against a group company where the amount in dispute exceeds £500,000. Those warranties were, in places, qualified by a seller-awareness threshold (here defined as the actual knowledge, after...

The European Union Agency for the Cooperation of Energy Regulators ( ACER), together with the National Regulatory Authorities ( NRAs) of Austria, Germany and the Netherlands, are collaborating to strengthen their oversight, under the......

Ofgem has announced two decisions in relation to Balancing Services Use of Systems ( BSUo S) charges. Firstly, it has approved the Connection and Use of Systems Code ( CUSC) modification proposal 308 ( CMP308), which changes how BSUo S charges are......

What are the practical implications of this case? This claim sits among numerous legal actions worldwide accusing governments of failing to act to fulfil their Paris Agreement climate obligations and of infringing various human rights. It highlights the markedly growing prevalence of rights-based climate claims, with many claimants invoking human rights as a tool for holding defendants to account for their climate commitments. While the court acknowledged that climate-related matters are of great importance, the judgment equally exposes the considerable challenge of using litigation in the English courts to contest the UK government’s climate conduct under current domestic law. Regarding the Paris Agreement arguments, the court determined that English courts have no jurisdiction to rule on whether the government has breached obligations arising under an unincorporated international treaty. The court also observed that, since there is an...

Mars Capital Finance Ltd v Hussain and others [2021] EWHC 2416 ( Ch) What are the practical implications of this case? This ruling underlines that, after a transfer of land has been entered on the register, any prior defects in the enforceability of the underlying contract for that transfer cease to matter. Accordingly, earlier formal shortcomings cannot be used to unsettle a completed, registered disposition. That principle is clear and decisive here. In addition—though not essential to the outcome—the judge endorsed the position that sections 43 and 44 of the Companies Act 2006 permit three mechanisms for a company to enter a written contract (by the company or on its behalf). This contrasts with the interpretation that, for the purposes of the Law of Property ( Miscellaneous Provisions) Act 1989, only two methods exist, and it departs from Lewison J’s approach in Redcard Ltd v...

Galer v Mond (administrator of SFPL Ltd) and another [2021] EWHC 1952 ( Ch), [2021] All ER ( D) 110 ( Jan) What are the practical implications of this case? Several elements of this ruling turn on the precise wording of the facility agreement and the deed of assignment, so its broader relevance is limited. Even so, the court set out helpful general guidance: in the absence of any evidence of misconduct, it is wholly improper to imply that a particular administrator will fail to fulfil their duties properly. The judge made plain that one cannot obtain a declaration that an administrator’s appointment is invalid by relying on what he described as 'a smokescreen of general allegations'... What was the background? SFPL Ltd ( SFPL) was incorporated in August 2016 as a vehicle for the acquisition and development of a property in London. There were a number of...

Pearce v Secretary of State for Business, Energy and Industrial Strategy [2021] EWHC 326 ( Admin) What are the practical implications of this case? While the facts are specific to this matter, multiple offshore schemes along England’s east coast are moving through consent, and each must robustly account for cumulative effects. The case also underlines mounting pushback from local communities against sizeable onshore infrastructure in the area, coinciding with BEIS’s programme reviewing offshore transmission and different approaches to linking offshore wind schemes and landing renewable power. The court further made clear that, even where a proposal aligns with government policy and helps deliver low‑carbon, renewable generation consistent with legal duties towards ‘net zero’ and tackling climate change, that alignment does not displace the requirement for any application to evaluate every impact properly and in accordance with the law. All such proposals therefore need to...

Man Ching Yuen v Landy Chet Kin Wong , First-tier Tribunal ( Property Chamber), 2020 (ref 2016/1089) What are the practical implications of this case? Every day, innumerable deeds are completed across the country. By virtue of section 1(3) of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989), a deed must be signed in the presence of a witness who attests the signing. Yet what amounts to presence? Could witnessing occur via Skype, Facetime, Whats App or similar platforms? In addressing that issue, the FTT indicated, without a definitive ruling, that, under present law, whether the phrase in LP( MP) A 1989, s 1(3) ‘in the presence of a witness’ can be met via video link admits more than one arguable view. The tribunal’s indication fell short of a determination, acknowledging that the statutory wording, as it stands, could...

Bioconstruct Gmb H v Winspear and another [2020] EWHC 7 ( QB) What are the practical implications of this case? The ruling rekindles discussion about optimal methods for completing a closing with pre-executed pages, particularly where multiple parties and signatories are involved and where amendments or corrections are made to previously circulated written contracts. The court’s analysis, relating to a deed that was both signed and acted upon by the party seeking to rely on it, yet held invalid and unenforceable, underscores the need for caution when attaching pre-signed signature pages to deeds. In this respect, the judgment draws attention to a circumstance not expressly covered by the Law Society of England & Wales’ Practice Note, ‘ Execution of documents by virtual means’ (16 February 2010). That guidance identifies Koenigsblatt v Sweet as the leading authority on ratification for written...

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...

How has the exemption available for controllers under the GDPR in relation to liability to compensate data subjects changed? Under the earlier Data Protection Directive 95/46/ EC ( Article 23(2)), where a person was entitled to damages from a controller due to unlawful processing, the controller could rely on a potential exemption if it was not responsible for the event that caused the loss. Recital 55 offered two illustrations of situations for which the controller would not bear responsibility: a mistake by the data subject, and a case of force majeure The language of these provisions lacked clarity, and the concept of ‘force majeure’ has no consistent definition across EU legal systems (it does not even carry a settled meaning in English law, depending heavily on contractual wording). Unsurprisingly, this carve-out, and the reference to force majeure, was therefore loosely carried across into...

What is the background to this legal action being taken? In Texas, Exxon Mobil faced a lawsuit from shareholders claiming that the decline in its share price between 31 March 2014 and 30 January 2017 stemmed from material misstatements or omissions by the company and its directors, including former CEO (and former US Secretary of State) Rex Tillerson. The case centred on Exxon Mobil’s assertions that none of its assets were, or would become, stranded due to climate change risks, and in particular on its refusal to write down assets rendered unprofitable by the sharp fall in oil prices that began in mid‑2014. While other oil and gas peers recorded more than $200bn of impairments, Exxon Mobil told investors that its superior processes meant no revaluation was required. It recognised no impairments until after a $12bn public debt issue in March 2016,...

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...

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...

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...

Original news Dean v Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1998 ( Admin); [2017] All ER ( D) 72 ( Aug). The Planning Court concluded that the grant of a PEDL under section 3 of the Petroleum Act 1998 ( PA 1998) was not entirely constrained by the statutory licensing code, so the Secretary of State could agree to alter the licence terms. Consequently, it rejected the claimant’s case that the deed varying the licence was ultra vires, and dismissed his application for judicial review. What was the background to the case? In 2008 the defendant issued a PEDL conferring exclusive rights on the licensees to search, drill for and recover hydrocarbons within a defined geographic area. The licence period was split into three stages: a stage for the licensee to undertake the agreed works programme of seismic and...

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...