Legal News

A local authority v PB (by his litigation friend, the Official Solicitor) [2020] EWCOP 34 What are the practical implications of this case? This ruling underscores the need to avoid imposing an unduly stringent threshold when determining capacity in areas such as care and accommodation. Health and care practitioners (and the lawyers advising them) should guard against allowing the instinct to secure what is objectively in a person’s best interests to shape or elevate the standards by which capacity is judged. The mere fact that an individual might hold an unrealistic perception of their ability to control their......

Depp II v News Group Newspapers Ltd and another [2020] EWHC 1689 ( QB) What was the background? This ruling addresses an application by the defendants to the libel action, News Group Newspapers Ltd and another (collectively, NGN), to strike out Mr Depp’s claim on the basis of an alleged breach of an earlier ‘unless’ order concerning disclosure. In March 2020, the court had granted several of NGN’s disclosure requests. Among these was a direction requiring disclosure of documents already produced in a US libel hearing between Mr Depp and his former wife, Amber Heard, conditional on NGN providing Mr Depp with written confirmation from Ms Heard or her solicitors that she consented to such disclosure. For more on that decision, see News Analysis: Court partly grants disclosure application in Depp case ( Depp v News Group Newspapers Ltd). NGN...

N3 Living Ltd v Burgess Property Investments Ltd and anothe r [2020] EWHC 1711 ( Ch) What are the practical implications of this case? The appointment of a second trustee under section 36(6) of the Trustee Act 1925 within the TR1 transfer, to receive the sale proceeds, is a proper and standard means of satisfying a Form A restriction so as to confer good title on the purchaser, free from the interest protected by that restriction. This approach, set out in HM Land Registry’s Practice Guide 21, aligns with the general law of overreaching. Provided the wording of the restriction and the requirements of the LRA 2002 and the Land Registration Rules 2003, SI 2003/1417 are met, a purchaser will obtain good title and be registered as proprietor free of any such interest, and need not be troubled by the character of the interest or trust...

The Loan Market Association ( LMA) has issued a guidance note and optional riders regarding the...

Remondis Gmb H v Abfallzweckverband Rhein- Mosel- Eifel Case C-429/19 ECLI: EU: C:2020:436 What are the practical implications of this case? The Court of Justice has persisted with a narrow reading of exemptions in the Public Procurement Directive ( Directive 2014/24/ EU) and took a purposive stance when construing a contract said to be exempt. The Court of Justice confirmed the degree of collaboration needed for reliance on the Hamburg exemption, insisting that cooperation must be genuinely set up or carried out to have effect. This maintains a strict view of derogations and emphasises demonstrable, substantive collaboration in practice. To rely on the exemption, contracting authorities should think carefully about how they frame, evidence, and deliver joint strategies and mutual advantages when entering a Hamburg-exempt arrangement. If they neglect this, and cannot show real collaboration in practice, disgruntled private sector operators...

Should compliant, ordinary individuals enjoy confidentiality over what they own? And does pushing that confidentiality into full anonymity heighten the chance of misuse by organised criminals and terrorist groups? The question of asset privacy is hotly disputed. Its position is unambiguous and forceful. The EU’s Fifth Money Laundering Directive ( Directive ( EU) 2018/843, known as 5MLD) plants its flag by aiming to dismantle the anonymity embedded in ownership frameworks: notably within certain trusts and corporate bodies. Unsurprisingly, the Directive also focuses on the anonymity surrounding cryptoassets, though the EU favours the label ‘virtual currencies’. It proposes to achieve this through the novel application of rules to crypto exchanges and custodian wallet providers offering services relating to cryptoassets, as such providers operate today. Exchange providers— SI 2017/692, reg 14( A)(1) vs article 1(1)(c) of MLD5 Under the Money Laundering, Terrorist Financing and Transfer of Funds...

Serafin v Malkiewicz and others [2020] UKSC 23 What are the practical implications of this case? Lessons from the unfair trial aspect include guidance for judges and practitioners on engaging with a litigant in person ( LIP). Judges owe duties, and lawyers have professional duties to the court. Working with LIPs can be challenging, exasperating and take considerable time—sometimes more so than dealing with overly combative solicitors. Clients may struggle to understand why you appear to ‘assist’ an unrepresented opponent. Yet justice demands that those without representation are treated with politeness and dignity, and are given at least basic assistance and direction to find their way through the court process. Only then can justice truly be achieved for all involved in the process as a whole. On the DA 2013, s 4 defence, the Supreme Court’s judgment sets out principles which, though not strictly...

Introduction At the start of 2020, the spread of coronavirus visibly harmed virtually every part of society in China. Countless enterprises confronted severe cash flow pressures while struggling to endure through these difficult months. In response to the epidemic, China’s policy‑making machinery worked intensively to roll out a range of essential measures intended to restart the economy. In particular, the Supreme People’s Court of the People’s Republic of China, the principal authority shaping bankruptcy policy, issued at least two significant guidelines on the judicial hearing of civil cases linked to the coronavirus outbreak. The first, dated 20 April 2020, centred chiefly on adjudicating disputes concerning enforcement of contract, employment relations, and consumer protection in the production of medical goods. The second, released on 19 May 2020, placed strong emphasis on hearings about the enforcement of contract and, moreover, on the...

Boston Trust Company Ltd (in their capacities as trustees of Erutuf Trust) (suing on behalf of Erutuf Trust and all other shareholders in Tellisford Ltd other than VOC Trustee Ltd) v Szerelmey Ltd [2020] EWHC 1352 ( Ch) What are the practical implications of this case? As permission to appeal has been granted, it would be premature to attach substantial weight to the ruling. Should the decision survive on appeal, though, it would amount to a practical yet striking enlargement of those entitled to advance common law derivative proceedings. The court acknowledged scenarios in which an applicant can present prima facie material indicating a derivative action has real prospects, but an apparent irregularity means the would‑be claimant presently lacks standing to sue. In that event, the court held it may confer permission conditionally, while remedial steps—such as bringing a...

CWD v Nevitt and others [2020] EWHC 1289 ( QB) What was the background? The decision concerned allegations by the first defendant that the claimant sexually assaulted her, and by the second defendant that he raped her later the same night. The first and second defendants are sisters; the third defendant is their brother. The allegations were reported to the police, but after enquiries they took no further action against the claimant. Before proceedings were issued, the claimant applied without notice for an interim injunction to restrain alleged harassment and misuse of private information. That application was refused, partly due to concern he was “cause of action shopping”, as his real aim seemed to be to prevent information he said was untrue. However, the court granted an anonymity order, permitting him to sue as “ CWD”, with the defendants anonymised too. He then issued and served a claim for...

Wright v Ver [2020] EWCA Civ 672 What are the practical implications of this case? This judgment addresses a significant issue under DA 2013, s 9. Section 9(2) states that, where a defendant is domiciled outside the UK, the EU or a Lugano Convention state, the courts of England and Wales have jurisdiction only if it can be shown that England and Wales is ‘clearly the most appropriate place to bring an action’ concerning the impugned statement. At first instance, the court refused jurisdiction (see News Analysis: Court rules on operation of section 9 of the Defamation Act 2013 ( Wright v Ver)) and determined that a two-step approach should be used when deciding whether England and Wales was ‘clearly the most appropriate place’. That approach required evaluating the character of the publication and its reach in each relevant...

Re Grosvenor Property Developers Ltd (in liquidation) Atkinson and another v Varma (also known as Sanjeev Varma) and others [2020] EWHC 1114 ( Ch) What are the practical implications of this case? There are four practical consequences flowing from this ruling: It firmly affirms that a defendant who has been debarred may not at all advance submissions in their own defence, save to point out obvious, manifest errors. It also delineates how far, in practice, the claimant must go to properly establish the claim against such a party. It offers an instance of a highly persuasive forensic case, without any expert opinion or cross-examination, that both documents and individuals were inventions. It considers the line between de facto directors and shadow directors. It exemplifies an award of compound interest in a dispute concerning the...

Prompted by the coronavirus ( COVID-19) outbreak, government has unveiled details of the Corporate Insolvency and Governance Bill. It had earlier consulted on reforms to the UK insolvency framework and issued its reply on 26 August 2018 (see News Analysis: Exploring the government’s response to the insolvency and corporate governance consultation). The Bill is moving through parliament and its provisions may still change during that journey. Broadly, it reflects the conclusions in the government’s response, and this News Analysis considers the Bill as at 20 May 2020. Among the measures proposed, the Bill (at clause 7 and Sch 9) inserts a new Part 26A into the Companies Act 2006 ( CA 2006)— Arrangements and Reconstructions for Companies in Financial Difficulty (a ‘restructuring plan’). What are the practical implications? We have already witnessed multiple significant corporate collapses worldwide tied to coronavirus recently. Some failures have been...

What are the practical implications of this case? The decision is noteworthy in two respects. First, for those in commerce, it underscores how hard it is, under English law, to depart from the clear, ordinary sense of contractual language. The defendants advanced bold arguments that two terms should be implied so as to avoid the straightforward effect of the express provision at issue—namely that ‘return’ of the materials required their physical handover to the claimants, European Film Bonds AS and other companies ( EFB)—but the court rejected those submissions outright. Second, it clarifies, in this context, the outer boundaries of the penalty clause doctrine in English law. The defendants argued that, if the clauses were construed to require them automatically to acknowledge the film as ‘completed and delivered’ merely because a modest time limit had been missed, the result would be an...

Boston Trust Company Limited and anor v Szerelmey Limited and ors [2020] EWHC 1136 ( Ch) What are the practical implications of this case? This ruling makes clear that, although the criteria for standing to pursue a derivative claim have a degree of flexibility, that flexibility is not without boundaries. The judgment recognises scope, yet emphasises constraints. A derivative action can be advanced by holders of the legal title to shares, or by those with beneficial ownership within a company. By contrast, persons with subordinate equitable interests lack a sufficient stake to secure permission to proceed with a derivative claim at common law. Where the would-be claimant is a trustee, it encounters a conceptual problem if it relies on a beneficial interest in the company’s shares to found standing. In such a scenario, permission ought to be sought by the...

Riverside Truck Rental Ltd v Lancashire County Council— R (on the application of Riverside Truck Rental Ltd) v Lancashire County Council [2020] EWHC 1018 ( TCC) What are the practical implications of this case? The stringent deadlines in public procurement disputes remain a pitfall for those not alert. In the unusual situation where a bidder brings both a Technology and Construction Court claim under the procurement regime and a judicial review, it is crucial to appreciate that the timetabling rules are applied differently across those proceedings. In judicial review, when considering an extension, the court weighs (para [101]): whether there is an objectively reasonable explanation for delay; whether the defendant and/or third parties would suffer prejudice; what the public interest demands. That framework is not mirrored in claims under the PCR 2015. While public interest may feature in judicial review, it plays no part in...

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...

Lowe and another (as joint administrators of Benedict Cole Ltd (in administration)) v Lloyds Bank Commercial Finance Ltd and another company [2020] EWHC 946 ( Ch) What are the practical implications of this case? The court examined the principles governing constructive trusts within an insolvency setting, providing a helpful overview of earlier guidance, and confirmed from para [44] onwards that, for those aiming to establish constructive trusts, the following propositions hold: The first place to look is the parties’ contracts. Do they show the usual indicators of a trust arrangement—e.g. a separate account, express statements of trust or duty, and similar features? If a trust arises, it must exist at the point of insolvency; otherwise, it would jeopardise the pari passu principle which, in this context, is of overriding importance. A mistaken payment, by itself, is insufficient to create a constructive trust; there is, at minimum, the further...

Homes for England v Nick Sellman ( Holdings) Ltd and another [2020] EWHC 936 ( Ch) What are the practical implications of this case? This judgment underscores the contrast between the common law and the statutory regime governing permission to bring derivative claims. It emphasises that common law takes a tighter line than the CA 2006, s 263 test: a prospective claimant must allege fraud or a dishonest breach of duty to proceed at common law; mere negligence by the putative defendant will not do. In addition, for equitable fraud there must be proof that the alleged wrongdoer secured some personal advantage. That advantage need not be financial—pursuit of the wrongdoer’s own non-monetary interests at the claimant’s expense has been accepted as enough (see Estmanco ( Kilner House) Ltd v Greater London Council [1982] 1 All ER 437 and Abouraya v Sigmund [2014] EWHC 277 ( Ch) at...

Day v Womble Dickinson ( UK) LLP [2020] EWCA Civ 447 What are the practical implications of this case? In essence, any action for damages for breach of contract or negligence that relies, as a necessary component, on pleading that the ultimate outcome of criminal proceedings would have been different and more advantageous to the claimant if the contract had been honoured or no negligence had occurred, is at risk of being struck out as an abuse of process in such circumstances. The proper route for a defendant, indeed, discontented with the result of a criminal case is to take up every opportunity to appeal the decision. In practice, only where an appeal overturns or varies the decision in the claimant’s favour will there be room for a viable civil claim asserting that the original outcome would not have been reached but for the...