Legal News

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 Saw ( SW) 2010 Ltd and another v Wilson and others (as joint administrators of Property Edge Lettings Ltd) and another [2017] EWCA Civ 1001 What was the background to the appeal? In December 2007, SAW ( SW) 2010 Limited ( AW), one of the appellants and both a shareholder in and creditor of Property Edge Lettings Limited (the company), granted the company a long lease of a residential apartment block in Exeter known as Bartholomew House. On 18 December 2007, Capital Homes Loans Limited ( CHL) advanced a £1.25m buy-to-let loan to the company, secured by six fixed charges, in materially the same form, over each flat within Bartholomew House (the CHL charge). The CHL charge also imposed a fixed charge over rental income from the flats and a floating charge over the remainder of the company’s...

R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 The Supreme Court upheld a trade union’s appeal, deciding that the Lord Chancellor’s scheme requiring fees from claimants in employment tribunals and appellants to the Employment Appeal Tribunal must be quashed because it obstructed access to justice. What was the background to the case? Employment tribunals were set up as an informal, low-cost and accessible forum for resolving workplace disputes. Their jurisdiction covers a broad array of matters, including enforcement of key rights that attract little or no financial compensation, such as the right to a statement of terms and conditions and the right to rest breaks. Many tribunal claims have their origins in EU law, although a substantial number are solely domestic. Claimants are often in a vulnerable situation—typically the weaker party in the contractual...

What are the practical implications of this case? Where the 2008 Regulations bite, not giving written notification of the cancellation right may stop solicitors recovering their fees from clients and block a winning party from obtaining costs from the opponent. It is a criminal offence as well. The 2008 Regulations cover any CFA concluded by solicitors and clients at the client’s home or workplace. If the CFA was agreed somewhere else away from the solicitor’s offices, the Court of Appeal held that one must assess the particular setting and the purpose of the meeting to decide whether the 2008 Regulations are engaged. The 2008 Regulations have no application to agreements made on or after 13 June 2014, when the Consumer Contracts ( Information, Cancellation and Additional Charges) Regulations 2013 took effect. The Court of Appeal did not express a view on how matters would fall under the...

Original news In NRAM v Evans [2015] EWHC 1543 ( Ch), the court directed the rectification of an inadvertent discharge of a mortgage. The proceedings centred on whether a 2005 loan, advanced by NRAM’s predecessor to Mr and Mrs Evans, was secured over their property. The key issue was whether a 2004 charge, which had secured an earlier loan to the borrowers, who were subsequently made bankrupt, was effective to cover the 2005 advance. The High Court held that, on its terms, the 2004 charge did secure the 2005 loan against the property. The mortgage conditions attaching to the 2004 charge were sufficiently broad and unambiguous to include the 2005 borrowing. Upon the borrowers’ bankruptcy, their estate vested in the Official Receiver as trustee, but remained subject to the bank’s charge. It was also found that the bank had made a distinct mistake by...

Original news O’ Brien v Ministry of Justice [2017] UKSC 46 What was the background to the case? Mr O’ Brien began serving as a part‑time Recorder in 1978 and continued in part‑time judicial office until 2005. Earlier chapters of this protracted dispute confirmed that part‑time judges should have access to a judicial pension, building benefits pro rata to the sittings they undertake against the sittings of a full‑time colleague. The right flows from the Part‑time Workers Directive ( Directive 97/81/ EC on the Framework Agreement for part‑time work), which had to be implemented in domestic law by 7 April 2000. Implementation in England was attempted via the Part‑time Workers ( Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551, yet regulation 17 carved part‑time judges out of their scope. In Ministry of Justice (previously the Department for...

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 Parkes v Wilkes [2017] EWHC 1556 ( Ch) The claimant and the defendant were each leaseholders of separate flats in the same building. By collective enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993, they acquired the freehold from Regis Group Ltd. At the same time, they executed a trust deed over the freehold, naming themselves as the two trustees and the sole beneficiaries. The deed was straightforward, stating that they held the property on trust for one another as tenants in common in equal shares. Seven years later, the claimant asked the defendant to agree a 999-year extension of her lease at a peppercorn rent. No agreement followed. The claimant then sought, but failed to obtain, an order under the Trusts of Land and Appointment of Trustees Act 1996 to grant a 999-year lease of her flat for no...

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...

Watson & Ors v Watchfinder.co.uk Ltd [2017] EWHC 1275 ( Comm) In this decision, the High Court examined a clause in an option agreement that seemed to grant the company’s board an absolute veto over any exercise of the option. The court considered whether an implied obligation bound the directors not to behave unreasonably, capriciously or arbitrarily when deciding whether to give consent. What was the background to the case? This was a claim by three individuals— Marcus Watson, Rob Hersov and Twysden Moore (the Claimants)—for specific performance of a written share option agreement between them and Watchfinder.co.uk Limited ( Watchfinder). The Claimants were directors and shareholders of Adoreum Partners ( Adoreum), a business development consultancy engaged by Watchfinder to provide services including introducing new prospects, investment investors and partners. Adoreum was paid a monthly retainer under a services agreement, and separately the Claimants and...

Original news Vanden Recycling Ltd v Kras Recycling BV [2017] EWCA Civ 354 What are the practical implications of this case? This ruling, in brief: affirms that once a judgment has been satisfied, further claims against other tortfeasors responsible for the same harm are generally precluded as a matter of course however, satisfying a settlement—rather than a judgment—will only preclude claims against other tortfeasors for the same harm if the amount agreed and paid was intended to determine and fix the claimant’s loss in full acknowledges (and succinctly sets out) the differences and practical distinctions between consent orders and Tomlin orders indicates that the court will look at the 'substance and effect' of a consent order’s terms and, if these are 'the same as would be made following a judgment', it is proper to treat the consent order as a...

Original news Taylor v Taylor [2017] EWHC 1080 ( Ch) In June 2012, a father, Mark, and his son, Boyd, acquired a transfer of a modest hotel with a campsite, together by way of conveyance. It was undisputed between both sides that this made them joint tenants at law at the time. The conveyance concerned part only of a wider tract of land within a larger holding. In May 2013, Mark served a notice to sever the joint tenancy which, on its very face, converted the beneficial joint tenancy (assuming that was its nature) into a tenancy in common in equal proportions. Nonetheless, Mark asserted a four-fifths share of the beneficial interest, citing his larger contribution to the purchase price. By contrast, Boyd maintained he was due one-half of the beneficial interest, on the basis of a promise to that effect and his...

What is Australia’s approach towards international free trade agreements? Australia is a proactive participant in global trade. In recent years, its commercial ties have centred on Asia, having lately finalised free trade agreements ( FTAs) with China, Japan and South Korea. Shortly after the 2016 EU referendum, the Australian Government signalled its readiness to negotiate an FTA with the UK. To advance this, a trade working group was established with a remit to ‘scop[e] out the parameters of a future ambitious and comprehensive’ FTA. The group first met in late November 2016. However, talks may not start until the UK has left the EU. How does Australia’s market compare to the UK? UK– Australia trade has taken place within the EU framework. The EU is Australia’s third-largest trading partner. Australia’s sales to the EU are dominated by mineral commodities (fuels and mining products) and...

Original news JCAM Commercial Real Estate Property XV Ltd v Davis Haulage Ltd [2017] EWCA Civ 267, [2017] All ER ( D) 62 ( Apr) The Court of Appeal ( Civil Division) upheld the property owner’s challenge to a High Court ruling that had declined to take off the court record a copy of a notice of intention ( No I) to appoint an administrator. The court examined the effect of paragraphs 44(4) and 28(2) of Schedule B1 to the Insolvency Act 1986. What, then, should practitioners draw from this? The ruling makes clear that lodging an No I where there is nobody to serve, or where there is no firm decision to proceed to an appointment, purely to obtain the moratorium, can no longer be relied upon. Merely contemplating an administration if other avenues fall away does not suffice....

Original news London Borough of Southwark v Akhtar [2017] UKUT 150 ( LC) This ruling addresses whether notices connected to service charges were valid and properly served. One notice was given under a lease clause obliging the landlord to supply the tenant with a reasonable advance estimate of the service charge before each service charge year began (the lease notice). The tenant was required to settle that estimate by four equal instalments on 1 April, 1 July, 1 October and 1 January. Notices issued under section 20B of the Landlord and Tenant Act 1985 (section 20B notices), covering the same works as the lease notice, were likewise contested on the footing that they had not been served on the tenant and so were ineffective. What are the practical lessons from this decision? The safest course is plainly to adhere to the lease process. Failure to do so...

Original news Port of London Authority v Paul Mendoza [2017] UKUT 0146 ( TCC). The owner of a houseboat failed to prove title by adverse possession over part of the River Thames’ bed and foreshore. What are the practical implications of this case? The ruling underscores how challenging it is to obtain adverse possession of a river bed simply by leaving a boat moored there. That conduct is inherently ambiguous and does not, by itself, signal to the world an intention to exclude others from the land. The Upper Tribunal confirmed there is no authority that mere mooring, without more, constitutes both factual possession and adequate evidence of intention to possess. By contrast, there is clear authority that the self‑serving assertions of an alleged adverse possessor about intention must be treated with caution and supported by other evidence. Where intention is to be inferred from...

Original news Eason and another v Wong [2017] EWHC 209 ( Ch), [2017] All ER ( D) 196 ( Mar) The Chancery Division determined that investors who had contracted to acquire long leases of student flats and paid deposits held an enforceable equitable lien over the land comprising the subject of each individual bargain once the seller failed to progress the development. The court further ruled that enforcement of an equitable lien does not depend on the pre‑existence of the legal estate in the property; it is sufficient that the vendor agreed to create a legal estate out of an existing legal estate and that the estate to be created is identifiable. What was the background to the case? A company incorporated as a special purpose vehicle to purchase and develop a site for student accommodation entered into off‑plan contracts with a number of...

Original news Camelot Property Management Ltd and another company v Roynon [2017] Lexis Citation 28 What issues did this case raise? Why is it significant? The claim was issued by Camelot Property Management Limited and Camelot Guardian Management Limited (together, Camelot). Camelot is an organisation established to assist with the security of vacant property and to safeguard empty premises. They were engaged by Bristol City Council to protect a former, and at that time vacant, elderly care home in Bristol from vandalism and unlawful occupation. Camelot permitted Mr Greg Roynon to occupy part of the premises. Camelot maintained that his presence was solely as a property guardian and was strictly in line with an agreement between them which they contended was, and which on its face appeared to be, a licence. Camelot served notice terminating that licence, yet Mr Roynon declined to vacate the...

Original news Crown Estate Commissioners v Wakley and another [2016] Lexis Citation 697, [2016] All ER ( D) 132 ( Dec). The Chancery Division fixed damages on the defendants’ counterclaim at £1,586,366.60 for misrepresentations and breaches of contract. It was further determined that the defendants could apply that sum by way of set-off against what they owed the claimant in unpaid rent, reducing their liability for arrears accordingly. Why is this decision of importance? The significant level of damages awarded to the tenant (£1.75m) is a clear warning to property professionals: information supplied by sellers and landlords to buyers and tenants must be carefully researched, so they do not expose themselves to claims for negligent misrepresentation. The ruling also underscores that the quantum of damages can be substantial even in the absence of any deliberate intention to defraud or deceive, highlighting the risk where...