Legal News

Santander UK Plc v Fletcher & Anor [2018] EWHC 2778 ( Ch) Ashley Fletcher was found guilty of fraud, the target being his mother, Mrs Paula Fletcher. Because of his deception, Mrs Fletcher’s property was charged to Santander for a loan far greater than he had led her to expect. He told her the borrowing would be in the region of £32,000, whereas the facility actually approached £120,000. Nothing had been repaid; by May 2017 the outstanding balance was around £160,000 and still climbing. Santander therefore issued possession proceedings under the mortgage. At trial, the judge upheld Mrs Fletcher’s contention that the mortgage should be rescinded for undue influence, of which Santander had sufficient notice to put it on enquiry (see Royal Bank of Scotland v Etridge ( No 2) [2001] All ER ( D) 156 ( Oct)). He decided that, provided she...

Dalamd Ltd v Butterworth Spengler Commercial Ltd [2018] EWHC 2558 ( Comm), [2018] All ER ( D) 37 ( Oct) What was the background to the decision? The insured held a commercial combined policy with Aviva and contractor's all risks cover with XL. As assignee of the policyholder, the claimant sought an indemnity from those insurers following the destruction of the business premises in a 2012 fire. The defendant, an insurance broker, had been engaged to arrange insurance for the site. The insurers declined indemnity on the basis of non‑disclosure and misrepresentation of material facts. The claimant did not contest those declinatures and instead pursued a negligence claim against the broker. What did the court decide? The claimant maintained that the defendant had not properly advised as to the matters then in question......

Director of the Serious Fraud Office v Eurasian Natural Resources Corporation Limited and another [2018] EWCA Civ 2006, [2018] All ER ( D) 05 ( Sep) For our earlier report on this ruling, see News Analysis: Privilege in internal investigations restored ( SFO v ENRC). What does this mean in practice? The Court of Appeal has brought welcome certainty to the scope of litigation privilege. It also marks an important ruling on legal advice privilege, advancing the troubled debate over who can amount to ‘the client’ for the purposes of that protection. At first instance, ENRC’s assertion of litigation privilege was rejected. The judge decided, among other matters, that a criminal prosecution was not reasonably in contemplation at the material time, because ENRC had not produced evidence showing it knew enough about its own potential misconduct to believe that a prosecutor would be likely to...

Prezzo Ltd v High Point Estates Ltd [2018] EWHC 1851 ( TCC) What are the practical implications of the judgment? In Mark Rowlands Ltd v Berni Inns Ltd [1985] 3 All ER 473, the Court of Appeal articulated a general rule: where a landlord is required to insure the building and the tenant contributes to the premium as insurance rent, that cover operates for the tenant's benefit as well. Accordingly, losses caused by an insured risk arising from the tenant's negligence must be met from the insurance proceeds, leaving the landlord with no additional negligence claim against the tenant. In the later decision of Frasca- Judd v Golovina [2016] EWHC 497 ( QB), [2016] All ER ( D) 282 ( Feb), the High Court revisited Berni Inns and held that, even though a short-term residential lease imposed no duty on the tenant to pay...

What’s the background to robotic surgery? Robotic surgery, a form of minimally invasive laparoscopic procedure performed with robotic systems, has been available in the UK since 2001. Instead of working directly on the patient, the surgeon uses computer hardware and software to operate from a remote console, carrying out the procedure via a video screen or monitor. Its use has, so far, been relatively limited, mainly for certain operations such as prostate surgery and other cancer procedures. Shorter operating times Lower risk of infection Less blood loss and reduced post-operative pain Quicker recovery and a shorter hospital stay That said, surgeons need extensive training to work ‘remotely’, as this represents a completely new surgical skill, especially given the historically limited haptic (i.e. kinaesthetic) feedback, whether ‘force’ or ‘tactile’. Issues can also occur outside the surgeon’s direct view, including...

Broadway Homes ( Cambridge) Ltd v Bruce Marshall [2018] UKUT 264 ( LC) A developer acquired a detached home with an extensive garden on a residential estate, fully aware that a covenant restricted use of the land to a single private dwelling-house. Having obtained planning consent to demolish the existing house and build two new dwellings, the company—assumed by the Upper Tribunal ( Lands Chamber) ( UT) to stand to make a substantial financial gain from the project—sought a modification of the restrictive covenant to realise the site’s potential. Several long-standing residents, each of whom had lived on the estate for years and had ‘faithfully abided by’ identical covenants affecting their own properties, objected. The UT was required to determine whether to permit the company’s application. What are the practical implications of this case? Although determined on its particular facts, the decision serves as a helpful...

What are the definitions of ‘service provider’ and ‘information society services’ under the E- Commerce Directive and the Electronic Commerce ( EC Directive) Regulations 2002? The E- Commerce Directive ( Council Directive 2000/31/ EC) and the Electronic Commerce ( EC Directive) Regulations 2002 ( SI 2002/2013) state that a ‘service provider’ is any natural or legal person who supplies an information society service. Recital 17 of the E- Commerce Directive describes ‘information society services’ as any service typically supplied for remuneration, delivered at a distance, using electronic equipment for the processing (including digital compression) and storage of data, and provided at the individual request of the recipient. The notion of ‘information society services’, together with related terms such as ‘at a distance’ and ‘at the individual request of a recipient of services’, is further clarified in Article 1(1) of Directive 2015/1535/ EU. The condition that a...

Upper Tribunal considers experts acting under success-related fees ( Gardiner & Theobald LLP v Jackson ( VO)) Gardiner & Theobald LLP v Jackson ( VO) [2018] UKUT 253 ( LC) What was the background? The UTLC President characterised the ruling as addressing significant questions of principle about the proper conduct of experts. In essence, it examined the effect of success‑linked remuneration and the circumstances in which such arrangements might be regarded as acceptable. The tribunal adopted a notably broad stance on experts’ obligations where success‑related fees arise, prompting unease among expert witnesses and their employers. Although the dispute was a rating matter, the tribunal made it clear that its observations were equally applicable in compensation cases. The panel presented its guidance as having wider application across comparable proceedings in both forums. Fee arrangements in the case The surveying practice had undertaken all rating work for Gardiner &...

Ubbi and Anori (minors) v Ubbi [2018] EWHC 1396 ( Ch), [2018] All ER ( D) 38 ( Aug) What are the practical implications of this case? In proceedings by two children seeking maintenance from their late father’s estate under the Inheritance ( Provision for Family and Dependants) Act 1975, the parties settled on a calculation approach that the court endorsed and applied. The agreed multiplier–multiplicand methodology drew on the Ogden Tables for each head of maintenance. An investment rate of -0.75% was adopted, on the footing that any lump sum would be invested in gilts to mirror the lowest investment risk. From the overall figure, there was a deduction to reflect the reasonable contribution the children’s mother could be expected to make across the relevant period. As a result, her financial position and anticipated earnings and income were pertinent, and evidence...

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...

Advantage Insurance Co Ltd v Stoodley and another [2018] EWHC 2135 ( QB), [2018] All ER ( D) 79 ( Aug) What are the practical implications of the judgment? Two key, practical takeaways arise from this decision. Substantive point: a motor insurer granting cover under a DOC extension is insuring a liability that must be provided for under section 145 of the Road Traffic Act 1988 ( RTA 1988). Consequently, a DOC insurer may function not only as a contractual insurer but also as a hybrid insurer (a contractual insurer whose liability is adjusted by RTA 1988, s 148) or as a statutory insurer under RTA 1988, s 151. This will matter in situations where multiple insurers are involved. Procedural point: claimants who anticipate an adverse ruling cannot sidestep it by discontinuing before judgment and then attempting to re‑litigate the same issue. Where a...

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,...

Original news Final report and draft Bill published for reforming Land Registration Act 2002, LNB News 24/07/2018 61 The Law Commission has issued its concluding report and a draft Bill to update the Land Registration Act 2002 ( LRA 2002) after a consultation. It proposes targeted technical changes to smooth out anomalies in the law, deter fraud, and make conveyancing quicker, simpler and more affordable for all. What recommendations does this report include? The paper sets out 53 proposals to enhance the current LRA 2002. They are based on the extensive feedback the Law Commission received to its 2016 consultation paper on this topic. How will the proposals in relation to electronic conveyancing help conveyancers? Chapter 20 presents the plans for electronic conveyancing. The Law Commission makes four recommendations, including: conferring a power in the LRA 2002 to mandate electronic conveyancing without also obliging...

Burki v Seventy Thirty Ltd; Seventy Thirty Ltd v Burki [2018] EWHC 2151 ( QB) What was the background? These proceedings stemmed from Ms Burki’s dissatisfaction with the service delivered by 70/30, a matchmaking company to which she paid £12,600 for assistance in finding a romantic partner. On its website, 70/30 promoted itself as an ‘ Exclusive Matchmaking and Elite Introduction Agency’, stating that its members are high net-worth individuals drawn from diverse and distinctive backgrounds, nationalities, lifestyles and industries. During meetings and discussions with 70/30 personnel, Ms Burki made clear that any prospective partner must be willing to have children and, ideally, be of comparable wealth. Staff showed her member profiles and gave her information about 70/30 which, in substance, indicated there was a significant cohort of affluent male members who were actively involved with the agency’s matchmaking services. Ms Burki entered into a...

DIFC Courts and Smart Dubai The Dubai International Financial Centre Courts ( DIFC Courts) are partnering with the government‑backed Smart Dubai initiative to examine how blockchain can be used to authenticate court judgments for the purpose of cross‑border enforcement. According to the DIFC Courts and Smart Dubai, the purpose of their joint task force is to deliver a ‘blockchain‑powered future for the judiciary’ that will streamline the judicial process by making legal tasks more efficient. Amna Al Owais, chief executive and registrar of the DIFC Courts, said in the statement: ‘ This task force is in line with our’......

What are the practical implications of this case? This judgment grappled with a bold attempt by the defendant in a libel claim to recast the Lucas- Box meanings set out in its defence, notwithstanding that the court had already settled the issue of meaning earlier in the proceedings. In essence, it addressed whether a party could revisit and amend its Lucas- Box meanings after a prior judicial determination of meaning had been made. What was the background? The claimant, Irina Bokova, who at the relevant time was Director- General of UNESCO, commenced a libel action arising from articles published on the Mail Online and in the Daily Mail. The defendant, Associated Newspapers Limited, put forward a defence of truth under section 2 of the Defamation Act 2013 ( DA 2013). The claimant sought a ruling on the articles’ meaning and orders striking out the truth defence...

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...

Sodzawiczny v Ruhan and others [2018] EWHC 1908 ( Comm) What are the practical implications of this case? The judgment places primary emphasis on how the court should approach an application to stay proceedings under AA 1996, s 9. Following an extensive analysis of the authorities, Popplewell J articulated the governing principles as follows: treat as matters raised by the proceedings any issue capable of amounting to a dispute or difference that may fall within an arbitration agreement where issues are not fully set out or developed, the court should seek to foresee and identify those which may reasonably arise stay the proceedings so far as any issue falls within the scope of the arbitration agreement; the exercise is not to single out the main issue, but to find all issues that could be the subject of...

What is the background to the case? The judicial review stemmed from the Department for Infrastructure’s ( Df I) approval of an energy-from-waste scheme at Hightown Quarry in North Belfast. The proposal was advanced by Arc21, a consortium of NI local councils formed to deliver waste management solutions for those authorities. The approval decision was taken in September 2017 by the Df I’s Permanent Secretary, more than a decade after the project was first envisaged. As a rule, the ultimate sign-off would fall to the departmental minister. However, following the fall of the Stormont Executive in January 2017, there was no minister in post. The Df I therefore found itself in the awkward position of waiting for either the return of the Executive or the imposition of direct rule by Westminster. In September 2017—and indeed at that time—neither outcome looked remotely likely. A local...

R v Sarker [2018] EWCA Crim 1341, All ER ( D) 61 ( Jun) What is the background to this case? This decision concerns reporting bans imposed during the trial of Sarker, a medic facing a single fraud charge. The allegation was that, when applying for a role with an NHS Trust—later accepted—he dishonestly overstated his experience. That count alone was pursued at Worcester Crown Court; other aspects of his background were kept from the jury. Those matters concerned later inquiries into substandard surgical practice after he joined the Trust. Because such material risked prejudicing the proceedings, it was excluded from the trial. During the hearing, defence counsel applied for an order preventing any press coverage until the jury returned its verdict. The rationale advanced was that publicity about his wider history could reach, and influence, jurors. The judge made the order and...