Property issues in bankruptcy cases—overview

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...

Mitigation applies to all damages claims The notion that a claimant should mitigate their loss applies to every civil claim for damages, whether brought in contract, tort, or other recognised circumstances, although much of the case law on mitigation has arisen from contractual disputes. Consequently, even once causation and remoteness are established—subjects covered in practice notes on contractual breach, and on tort and negligence—the amount recoverable may still be affected if the claimant has not mitigated their loss. In essence, the innocent party cannot obtain damages for loss they could have avoided but did not, whether through unreasonable conduct or by failing to act. The key issue in mitigation is which steps it was reasonable, and which it was not, for the claimant to take. This is often referred to as the duty to mitigate or the rule on mitigation. What is the rule on mitigation? The rule on mitigation comprises three distinct components: The innocent party should take all reasonable measures to lessen their loss...

This Practice Note explores the doctrine of separate legal personality for a registered company, and surveys the relevant case law addressing the narrow situations in which the corporate veil might be pierced. It also separates true piercing or lifting of the veil from the more routine instances in which the veil is sidestepped by reliance on another legal or equitable entitlement. The analysis underscores the limited nature of this intervention and the authorities that define it. Corporate legal personality—the Salomon principle A duly incorporated company is a person distinct from its members, holding its own rights and bearing its own liabilities as an independent legal subject. This rule, often called the corporate veil or the Salomon principle, was most famously articulated by Lord MacNaghten in Salomon v Salomon: the company, at law, is wholly separate from the subscribers to the memorandum; even if, after incorporation, the undertaking remains exactly as before, with the same individuals managing it and the same people receiving the profits, the company is not the subscribers’ agent or their trustee. This encapsulates the autonomy of the company and the division between entity and members. Nor are the subscribers, as members, liable in any way except to...