Legal News

Original news Trustees of the Alice Ellen Cooper- Dean Charitable Foundation v Greensleeves Owners Limited [2015] UKUT 0320 ( LC). The UT affirmed the Leasehold Valuation Tribunal ( LVT) decision that a ‘two-stage’ enfranchisement resulted in no payment being due to the freeholder. What were the facts? The position can be broken down into three stages. Stage one The property was split into eight residential flats. Each flat lease provided for an initial ground rent of £300, with a review scheduled for late 2015. At the same time, a headlease was granted to a third party management company unconnected with the landlord. Under that headlease, the freeholder’s initial ground rent was £2,400, also subject to review in late 2015. Stage two In 2011, six of the flat tenants sought and obtained lease extensions under the Leasehold Reform, Housing and Urban Development Act 1993 ( LRHUDA 1993). As a...

Practical implications The judgment: affirms the primacy of the compensatory measure of damages for breach, as articulated in The Golden Victory, and provides a clear treatment of the particular questions that arise when evaluating damages for anticipatory breach (renunciation) clarifies that the principle identified in The Golden Victory is not restricted to instalment contracts (contrary to what is sometimes suggested) but applies equally to one-off sale contracts sets out the approach to interpreting damages clauses. The dicta in this judgment therefore indicate that, if parties intend to exclude the common law principles for assessing damages, their contract draftsmen must draft accordingly, making it expressly plain within the damages clause that the parties have considered the full spectrum of damages issues and intend to displace the common law in every respect also noteworthy is Lord Toulson’s particular focus on the...

Original news Canary Wharf Group Ltd v Comptroller General of Patents, Designs and Trade Marks [2015] EWHC 1588 ( Ch) What is this case about? This matter concerns an appeal brought by Canary Wharf Group ( CWG), a London-based property company, against a ruling of the UK Intellectual Property Office ( IPO) that rejected the registration of CWG’s application to register the word mark CANARY WHARF, lodged in March 2013. The specification spanned printed matter (class 16) and services connected with real estate, building construction and design, car parking, landscape design and security (classes 36, 37, 39, 42, 44 and 45). By Decision O-423-14, the Hearing Officer refused the application on ‘absolute grounds’ under the Trade Marks Act 1994 ( TMA 1994), namely: trade marks lacking distinctive character must not be registered ( TMA 1994, s 3(1)(b)) trade marks consisting solely of signs or indications which may, in trade,...

It has now been just over a year since DPAs became available, but how are they being used in practice? Just over a year on from the introduction of DPAs, how are they actually being applied? In short, there have been no concluded matters to date, though we understand negotiations are in progress in a number of high‑profile cases... What is the legal framework around DPAs? The legal basis for DPAs is contained in the Crime and Courts Act 2013, s 45 and Sch 17. These provisions outline the scheme, while operational detail is provided in joint guidance from the Serious Fraud Office ( SFO) and the Crown Prosecution Service. In essence, a DPA is an arrangement between a prosecutor—most commonly the SFO—and a corporate organisation: a criminal charge is brought but not pursued provided the organisation fulfils pre‑negotiated conditions, typically including payment of a...

Original news Wood v Waddington [2015] EWCA Civ 538 The core question was whether Mr and Mrs Wood possessed rights of way over land owned by Mr Waddington. The Woods relied on four alternative grounds: that the rights were conferred by an express grant that they passed by virtue of s 62 of the Law of Property Act 1925 that they arose under the rule in Wheeldon v Burrows (1879) 12 Ch D 31, [1874–80] All ER Rep 669 that they were implied from the parties’ common intention that the conveyed land would be used in a definite and particular manner The High Court had earlier found the Woods were not entitled to any of the rights claimed. They appealed to the Court of Appeal. What were the facts of the case? As successors in title to the previous proprietors, the Woods asserted two rights: to go across a parcel of land to reach a...

Practical implications arising from this judgment Practical implications arising from this judgment include: When your opponent is a litigant in person, adopt an even more hands-on approach than in matters where both sides are represented, anticipating and dealing with knock-on issues. For example, when an extension to a revised timetable was requested, the respondent’s solicitors asked whether it was sought for all outstanding directions, including disclosure and inspection. Where the opposing party is unrepresented, and especially if there are potential mental health concerns, help the court to identify ways for the party to avoid having to participate in court hearings without being debarred. See below (under ‘ The appeal—background facts’) for how the court shaped its order to accommodate any difficulties the litigant might face in complying. Mental health considerations should be factored in to ensure the...

Original news MT Højgaard a/s v EON Climate and Renewables UK Robin Rigg East Ltd and another [2015] EWCA Civ 407 The parties entered into a contract for the design and installation of offshore wind turbines. Defects arose in the foundations, prompting a dispute over who should bear the cost of remedial works. At first instance, the judge decided the claimant contractor had breached a warranty that the foundations would provide a 20‑year service life, but had not breached other clauses alleged by the defendant employers. The Court of Appeal, Civil Division, allowed the claimant’s appeal, finding there was no such warranty. The defendants’ cross‑appeal also succeeded, as the claimant had failed to comply with a provision concerning testing of the designs. What was this case about? The dispute centres on a specific design issue of fundamental concern to the various...

Original news Hastings Borough Council v Braear Developments [2015] UKUT 0145 ( LC) The property was a five-storey Victorian mid-terrace house, converted into five self-contained flats held on long leases. The right to manage was taken over by an RTM company, which then applied to the local housing authority for a grant to fund repairs to the common parts of the building. Approval was granted on the basis that the works would be completed within 12 months; however, the RTM company did not finish within the permitted 12-month period, so the grant was cancelled. The grant application brought the poor condition of the external staircase to the authority’s attention, and the authority served an emergency prohibition order, preventing any use of the staircase. In answer to that notice, the owner of the only two occupied flats on the upper floors carried out limited...

The Chancery Bar have confirmed that, following consultation with the Chancery Review Implementation Committee, from 1 May 2015 every unfair prejudice petition lodged in the High Court ( Rolls Building) and listed for an initial hearing before a registrar will receive automatic directions. The automatic directions are in the following form: For further guidance on unfair prejudice petitions, see Practice Notes: Unfair prejudice claim—what it is and when to use it Unfair prejudice claim—the procedure Rationale for the introduction of automatic directions in unfair prejudice petitions The move to automatic directions is being made because: in many cases, the directions ordered on the first return date are in a standard format and frequently agreed, so adopting automatic directions may... ......

Why are the protocols being amended? In his Final Report on Civil Litigation Costs ( January 2010), Lord Justice Jackson proposed retaining the pre-action protocols, while introducing targeted changes to improve how they work and to keep pre-action costs proportionate. He also advised creating a specific protocol for debt claims where a business pursues an individual. In response, a CPRC sub-committee was established to review and recommend any necessary amendments to the pre-action protocols. Although the sub-committee is still considering drafts of some protocols, several have been issued and, subject to ministerial sign-off, are expected to commence on 6 April 2015. Below is a summary of the protocols being revised and the stage each has reached, with links to the latest drafts where available. We will provide further updates as the CPRC publishes more material and will revise our Practice Notes once the...

Original news Civil Procedure ( Amendment No 8) Rules 2014, LNB News 18/12/2014 152 SI 2014/3299: The Civil Procedure Rules 1998, SI 1998/3132 ( CPR) are revised to reflect established case law on Part 36 with effect from 6 April 2015. What are the principal amendments to CPR, Pt 36 arising from the Civil Procedure ( Amendment No 8) Rules 2014? The measures are wide-ranging in the circumstances they touch, and in several respects they codify existing case law. The key changes are as follows. CPR 36.2(3) clarifies that Part 36 applies to additional claims and to counterclaims, so a counterclaimant who makes an offer may rely on the claimant-offer consequences, including an entitlement to costs if the offer is accepted. CPR 36.4 states that a Part 36 offer can be made in both first-instance and appeal proceedings, but it is effective only in the...

Original news Re Harvest Finance Ltd ( In Liquidation); Jackson and another v Cannons Law Practice LLP and others [2014] EWHC 4237 ( Ch); [2014] All ER ( D) 216 ( Dec) Following relief obtained by the liquidators under the IA 1986, ss 234 and 236, the Companies Court considered whether it possessed the power to require payment of the costs incurred by the respondent solicitors in complying with an order to hand over papers and electronic material. The court concluded that, in the circumstances, it should, as a matter of discretion, refuse to allow the respondents to charge for the time expended. What was the background to the application? The applicants were liquidators of a company suspected of being used as a vehicle for a large-scale international fraud, involving loans secured on securities whose values appeared to have been artificially inflated. The...

Practical implications Although the ECJ’s ruling in West Tankers sharply narrowed the scope for anti-suit injunctions, that constraint applies only within EU Member States. As a result, such injunctions remain a key device in cross-border disputes to ensure cases proceed in the English courts. This decision outlines what a claimant must establish to ground the court’s jurisdiction: Where an anti-suit injunction is sought to restrain or pre-empt proceedings in a non- EU Member State, there is no need to show that any of the CPR PD 6B service gateways apply to the injunction itself in order to found the English court’s jurisdiction. The reason is that the injunction is not a self-contained claim but is ancillary to existing proceedings; therefore, no distinct jurisdictional basis is required under either Part 6 or Brussels I. Nonetheless, the court’s jurisdiction must already have been engaged by a...

News analysis Emerald Supplies Ltd v British Airways plc [2014] EWHC 3513 ( Ch), [2014] All ER ( D) 340 ( Oct) During proceedings about the defendant airline’s alleged participation in a cartel, the European Commission adopted a decision. A dispute arose over whether a redacted version of that decision should be made available to the parties for inspection and use in the case. The Chancery Division determined that a confidentiality ring between the parties ought to be established, permitting circulation of the decision among its members, together with a safeguard preventing the claimants from using it to launch any further proceedings. What is the background to this matter and the competing interests concerning disclosure of the Commission’s decision? The claim is brought by 565 claimants, following the European Commission’s air cargo cartel decision. In a press release dated 9 November 2010, the...

Original news Inheritance and Trustees’ Powers Act 2014 ( Commencement) Order 2014 LNB News 01/08/2014 57; SI 2014/2039: With effect from 1 October 2014, a spouse or civil partner of someone who dies without leaving a valid will will take the entire intestate estate where there are no issue, and a larger allocation where issue are left. These revisions flow from the commencement of the Inheritance and Trustees’ Powers Act 2014 ( ITPA 2014). What does ITPA 2014 mean for the routine work of wills and probate practitioners? ITPA 2014 takes effect on 1 October 2014. Among the most notable shifts introduced by ITPA 2014 is the overhaul of the intestacy rules in section 46 of the Administration of Estates Act 1925 ( AEA 1925). The legislation secures substantially enhanced financial provision for a surviving spouse where a person dies...

Original news Digital TV streaming service found guilty of copyright violations, LNB News 26/06/2014 New York Times, 26 June 2014: The US Supreme Court held that Aereo, a television streaming platform, breached copyright by capturing broadcast signals with miniature aerials and forwarding them to subscribers for payment. The ruling was a significant victory for US broadcast networks, which argued Aereo had used a high-tech method to pilfer their content. What is the state of unauthorised online streaming in the US? The Aereo judgment adds to a global discussion about third parties distributing broadcast programmes, stepping in between broadcasters and viewers. The case turned on whether US copyright law required permission from broadcasters when Aereo picked up their programmes off-air and sent them online to its users. As a general rule, retransmitting a broadcast to the public in a Berne Convention country will infringe the...

Original news Kohler Mira Ltd v Bristan Group Ltd [2014] EWHC 1931 ( IPEC), [2014] All ER ( D) 130 ( Jun). After the Patent County Court (as it then was) found that the defendant had infringed the claimant’s UK unregistered design rights, the Intellectual Property Enterprise Court held that the claimant should receive a sum equivalent to a royalty of 6.7% of the price at which the defendant sold the infringing shower units to its customers. Moreover, exercising its discretion with reference to policy considerations, the court ruled that the defendant could not invoke the defence of innocence under the Copyright, Designs and Patents Act 1988, s 233(1), when it was advanced for the first time during the damages inquiry. Briefly, what was the background to this judgment? This ruling concerns a damages inquiry following last year’s liability decision— Kohler Mira Ltd v Bristan Group Ltd...

Original news Windemere Marina Village v Wild [2014] UKUT 0163 ( LC) The landlord of a marina development – a mixed scheme on the banks of Windermere – appealed an LVT determination that replaced the apportionment of service costs payable by tenants of 26 dwellings with the tribunal’s own division, displacing the split previously set by the landlord’s appointed surveyor. Permission to appeal was granted because the question raised a point of principle with potentially wide reach. Under the lease of a dwelling at the marina, the tenant is required to contribute a fair share of service expenses, that share to be fixed by the Lessor’s surveyor for the time being, whose decision is stated to be final and binding. The central issue was whether statute renders void an agreement making the landlord’s surveyor’s assessment of the service charge...

Original news Coventry and others v Lawrence and another [2014] UKSC 13, [2014] All ER ( D) 245 ( Feb) In February 1975, planning permission was issued to build a stadium in rural Suffolk. That consent authorised use for speedway racing and related facilities for a period of ten years, and in 1985 it was thereafter made permanent. Stock car and banger racing began at the stadium in 1984; after a decade of such activity, Mr Waters obtained a certificate of lawfulness of existing use or development. To the rear of the stadium lay a motocross circuit, operated under a temporary personal planning consent, which was later renewed on a permanent footing. In January 2006 the proprietors, Katherine Lawrence and Raymond Shields, took up residence at Fenland, a residential property situated close to the stadium and the track. In 2008 they commenced...

Original news Report: The Personal Insolvency Landscape— A way forward for formal debt relief The Association of Business Recovery Professionals ( R3) has published a paper seeking to restore balance and coherence to the personal insolvency framework in England and Wales. What are the current problems with the personal insolvency regime? At present, the principal shortcomings are: Limits Existing thresholds are out of date. For example, a creditor can still petition for bankruptcy where only £750 is owed. This figure has remained unchanged since 1986—something in the region of £3,000–£5,000 would be more appropriate. Bankruptcy period The default one‑year bankruptcy term is too brief—it should revert to three years, with an early discharge after a year where bankruptcy occurred without personal fault. For the most imprudent cases, there ought to be scope to lengthen the period up to 15...