Dispute Resolution know how

When is having the last word a bad idea?

When your contract contains a clause excluding oral variations… A recent decision of the Supreme Court in Rock Advertising Limited v MWB Business Exchange Centres Limited brings an end to the long standing debate over whether clauses excluding oral variations to a written contract (so called “NOM” clauses – “no oral modification”) are valid. This […]

Consumer rights and remedies – an update

Goodman Derrick’s dispute resolution team has received a number of recent instructions to act for both consumers and businesses in relation to disputes involving the application and interpretation of the Consumer Rights Act 2015 (the “Act”). The Act came into force in October 2015 but it appears that both consumers and businesses are only now […]

Inheritance Act claims – good news for cohabitees

English law has always placed great value on the principle of testamentary freedom. That is, an individual’s right to leave their estate to whomever they like, with no obligation to provide for family members under a Will. However, under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”), the Court does have power […]

Why the FAPL TV rights decline was natural and inevitable

This article first appeared in World Sports Law Report. To justify this headline claim, it is necessary to go back a bit. Prior to the creation of FAPL, football’s domestic prime events were not televised much – mainly because clubs  wanted to maintain live high attendance levels and feared that live broadcasting of matches would […]

Conway v Eze: A residential conveyancing nightmare

Mr and Mrs Conway lived in a prestigious house in London, but in 2010 they decided to sell it with the intention of relocating to Cambridge. When their house first went on the market the asking price was £7m, but that reduced over time as they struggled to find a buyer. In 2015 they reduced the […]

“Playing the percentage game”: the use of percentages to express the chance of litigation success

60 second summary: We are used to, and think we understand, percentage probability. Lawyers and their clients find it a useful tool in communicating and understanding the chance of success of a piece of litigation. However, parties need to take the reality check that a chance of success of, for example, 70% also means a […]

Defamation: Some good cheer for Claimants

It is generally accepted that the Defamation Act 2013 (“the Act”) raised the bar in defamation claims, making it harder for those wronged to issue claims. A recent decision of the Court of Appeal has lowered the bar somewhat which should be welcome news for those who wish to seek defend their reputations. Section 1 […]

Paradise paper chase: when is a leak a crime?

Over 13 million files, many of them containing confidential and sensitive client information, were leaked from offshore legal service providers and corporate registries in 19 jurisdictions including the Caribbean, Jersey, Guernsey and the Isle of Man. More than half of the documents came from law firm Appleby. As a result, sometimes complex financial structures used by […]

IOC-FIS clash over Russian skiers ‘a plate of scrambled egg’

This article first appeared in Sportcal. An embarrassing and potentially damaging rift has opened between the International Olympic Committee and the FIS over their treatment of six Russian skiers that were recently banned for life for doping by the IOC, after the international skiing federation declined to follow its lead. Yesterday, the FIS gave the six […]

How secure is a protected tenancy under the Landlord and Tenant Act 1954?

Earlier this summer, an important judgment concerning the security of tenure provisions of the Landlord and Tenant Act 1954 (“the 1954 Act”) was handed down by Mr Justice Jay. The case of S Franses Ltd v The Cavendish Hotel (London) Ltd [2017] EWHC 1670 QB was an appeal from the County Court in Central London […]

Taking care of the (fresh) evidence

This article first appeared in the Estates Gazette. The case of Clear Call Limited – v – Central London Investments Limited [2016] EWCA Civ 1231 [2017] provides further guidance of the application of the Ladd – v – Marshall ([1954] EWCA Civ 1) test for the submission of new evidence in a case where judgment has […]

Civil litigation: ‘Discovery’ is not the same as ‘Disclosure’ (forensic e-providers please note)

Every other day, it seems, I receive marketing emails or phone calls from firms offering forensic services in the field of electronic document disclosure. What some offer me, though, is an ‘e-discovery‘ service. Save your time! I am a solicitor practising in England and Wales, where Lord Woolf abolished ‘discovery’ in the late 1990s (replacing it […]

Lord Justice Jackson delivers his report on Fixed Recoverable Costs: 31 July 2017

I have just ‘hot-footed it’ from the Law Society in Chancery Lane, where, this morning, Lord Justice Jackson (‘LJJ’) presented his report on Fixed Recoverable Costs (entitled “Review of Civil Litigation Costs: Supplemental Report Fixed Recoverable Costs”). The eagerness of the Judiciary to deliver LJJ’s recommendations can perhaps be gauged by the fact that his report was released on-line two […]

Pfizer’s trivial £84.2 million competition law fine highlights the advantages enjoyed by conglomerates

If George Orwell were alive today, the author of Animal Farm (where all animals are equal but some are more equal than others) would certainly be struck by how fines imposed for breaches of competition law committed by equally culpable companies bear down least heavily on multinational conglomerates and most heavily on companies that sell […]

Raiders of the director’s wallet*

(*a cautionary tale for directors about non-party costs awards in litigation) Housemaker Services Limited & another v Cole & another [2017] EWHC 924 (Ch) Mr Wayne Williams ran a building company – he was the sole director. Over the period 2010 to 2011 his company sent three invoices to some customers for work carried out. […]

Mediation in uncertain times

The Civil Mediation Council (‘CMC’) held its annual conference yesterday (16 May 2017) in Birmingham. It was an inspiring and informative day. Dr Sue Prince of Exeter University gave the first presentation, about her research into use of mediation in the justice system. She has a wealth of data and knowledge from the UK and […]

Sweeping up the legal costs

Leases of residential property, flats particularly, commonly contain obligations on the part of the landlord to maintain and keep in repair the structure of the building and common parts and to recover the expenditure through service charge contributions from the individual tenants. Often the lease will contain a list of other services to be provided […]

Brexit report on “justice for families, individuals and businesses”

The House of Lords EU Committee has published a report about the effect of Brexit on three EU Regulations which together ‘play an important role in facilitating the daily operation of the European legal system’. Jonathan Haydn-Williams looks at the Committee’s conclusions as to the Brussels I Regulation ‘recast’, relating to jurisdiction and judgments in civil […]

Dispute resolution in a future EU / UK trade “deal”: what are the likely costs of avoiding indefinite European Court of Justice jurisdiction?

In most commercial negotiations, discussions about dispute resolution procedures are usually left until last. The parties don’t like to poison negotiations by talking about how they resolve disputes before they even reach agreement. But the future resolution of disputes in any eventual EU/UK agreement has exercised both sides already in the embryonic negotiations. This is […]

Snatching defeat from the jaws of victory; an object lesson in how to get litigation wrong

When considering whether to embark on litigation two of the fundamental elements of the claim which need to be identified are, what is the breach and what is or are the available remedies? While at first glance identifying these elements may appear to be a relatively simple task the recent case of Marathon Asset Management […]

My Submission to Lord Justice Jackson’s Review of “Fixed Recoverable Costs”

Jonathan Haydn-Williams has made a written submission to Lord Justice Jackson’s review of “Fixed Recoverable Costs”. His 30 second summary: Jackson LJ is to report later in the year on proposals to limit the legal costs which a successful party can recover from the losing one, in claims up to £250,000. I think it is […]

Brexit and Article 50 – Does the government really want to defeat the challenges?

A great deal of the comment on this case, which is summarised in Jonathan Haydn Williams’ note, has not taken into account that it is a typical judicial review, in which the claimants maintain that certain “rights” are to be removed by government to their detriment. What has also not been commented on extensively, is […]

Brexit and Article 50 – A Summary of the Judgment of the High Court of 3 November 2016

From screaming headlines to more sober assessments, much has been written about this decision of the High Court since it was delivered earlier this month. Early in December, an appeal by the government is to be heard by the Supreme Court. The judgment is 31 pages long and comprises 111 paragraphs. The aim of this […]

Right to rent

This article follows on from our earlier update in January of this year on the ‘right to rent’ checks introduced by the Immigration Act 2014 (see here for a recap of these). From 1 December 2016, a number of the provisions of the Immigration Act 2016 (the “2016 Act”) come into force. Perhaps the most […]

Guidance notes for parties engaging in mediation

What is mediation? Mediation is a voluntary process in which parties to a dispute seek to resolve it with the assistance of an independent and impartial mediator. This may be done by means of the parties and the mediator meeting or communicating ‘remotely’, e.g. by phone. If the parties reach a resolution, it is usually […]

R v Secretary of State for Exiting the EU: Judgment of the Divisional Court

Attached r-v-secretary-of-state-for-exiting-the-eu is the Judgment approved by the Court (subject to editorial corrections) as delivered today. Decision: “the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union”. This is subject to appeal, which is […]

A little legal common sense goes a long way: in memoriam John Greenwood Collier

On Friday, I attended a memorial service in Cambridge for my former law tutor, John Collier. ‘JC’ was a brilliant lawyer, who understood not only the fine detail, but also the essence of a legal issue – which he had the knack of setting out with concise clarity. He was both academic and practical. If […]

Short term gain, long term pain: the risks of advertising your property for short term lettings

In a recent article, we highlighted the potential pitfalls of using popular vehicles such as Airbnb to sublet your property and the problems which you may face unwittingly should you choose to rent out your property on a short term basis (see http://gdknowledge.co.uk/airbnb-first-timer-consider-the-legal-implications-first/). In recent times, the Airbnb phenomenon has seen a marked increased in […]

Acceptance or counter offer – don’t suffer from attachment issues

This recent decision in Gibbs v Lakeside Developments Ltd [2016] EWHC 2203 (Ch), 12 July 2016 reiterates the age-old principle that an offer must be accepted in its entirety for acceptance to be legally binding. The judgement also brings to light some interesting practical points in the modern age of digital communication. The substantive issue […]

Landlords’ works and the impact on tenants

Commercial leases often reserve to the Landlord the right to carry out repairs to adjoining premises. At times, this right may conflict with the Tenant’s right to enjoy the demised premises under the Landlord’s covenant for quiet enjoyment. There is also an implied covenant by the Landlord not to derogate from grant – put another way, a […]

The blanket banning of Russian participation in the Paralympics; Swiss courts to choose between Blackstone and Pol Pot

According to the great English jurist William Blackstone, it is better that ten guilty men go unpunished than one innocent man is convicted.  Authoritarian opponents of Blackstone (who, Wikipedia informs us, include Bismarck, Dick Cheney and Pol Pot) would appear to have been joined by the Court of Arbitration for Sport( CAS). CAS has decided […]

Constitutional aspects of Brexit

Executive summary: The EU Referendum was advisory, not binding; no UK decision on ‘Brexit’ has yet been taken; although EU law has primacy, the UK has never given up sovereignty to the EU; the issue of whether Parliament has to legislate for a decision to leave the EU, before ‘Article 50’ notification is given, is […]

Binding alternatives to litigation

Jonathan Haydn-Williams gave a seminar on 7 July 2016 to the Association of Partnership Practitioners on “Binding Alternatives to Litigation”, namely Arbitration and Expert Determination. A copy of his written presentation is available Goodman Derrick LLP Binding Alternatives to Litigation. He is happy to answer any questions which may arise in relation to it. The […]

Airbnb first-timer? Consider the legal implications first

Airbnb is a modern phenomenon. Its cultural impact has been to create an industry out of renting your own home to strangers on a short-term basis. Many people now view it as a complete alternative to hotels. But what are the legal implications? Over the summer months, increasing numbers of people will be taking holidays […]

“Brexit”: Potential implications of the vote to leave on dispute resolution in the UK

Suffice it to say it is not yet known what the precise mechanics for leaving will be or what model will then be adopted to govern the UK-EU relationship post-Brexit. Neither the UK nor the EU has indicated what might be proposed in negotiations. However it is clear that whichever model is chosen, the UK […]

Update: Foreign companies who own UK property are to be subject to new transparency measures

On 12 May 2016, ahead of the anti-corruption summit in London, David Cameron announced proposals for legislative reforms which will introduce a new public register revealing the “true owners” of UK property bought by foreign companies. This new register constitutes just one of a number of measures aimed at tackling money laundering, as London tries […]

Mediation could end the Junior Doctors’ strikes

The dispute between the BMA Junior Doctors and the Government is one where mediation should be attempted asap. Were it a commercial dispute, mediation would probably already have been tried and, with a high success rate (70% – 80% often reported), a resolution might well have been achieved and the recent strikes avoided. ‘Mediation’ is […]

What happens in Panama stays in Panama? A short review of the law of confidence

On 3 April 2016 11.5 million files from the database of one of the world’s largest offshore law firms, Mossack Fonseca, were leaked following a hack of its computers. The leaked material has become known as the Panama Papers and revealed what had previously been confidential information about more than 214,000 offshore companies, including information about […]

Different methods of dispute resolution in construction disputes

The construction industry is regarded as one of the most conflict and dispute ridden industries, which has resulted in it being one of the most claim orientated sectors. Traditionally, parties would enter into litigation, often a costly and long winded means of resolving a dispute. Over the years, various methods of alternative dispute resolution (ADR) […]

ALERT! Deadline looms for insolvency claims

Please note the following in respect of insolvency claims: the sizeable premium for an ATE (After the Event) insurance policy to cover the risk of losing and having to pay an opponent’s costs will no longer be recoverable from an unsuccessful opponent if the policy is taken out later than 31 March this year. Insurers […]

Negotiating a settlement: without prejudice privilege

All disputes can get messy and landlord and tenant disputes are no different.  Where the right to occupy a property is critical, either for business or residential purposes, the stakes are high for both sides.  Whatever the strengths and weaknesses of a case, litigation can be stressful and costly and sometimes settling a dispute is […]

Claims against UK soldiers: a balance to be struck

Recently there has been widespread media coverage concerning claims made against UK soldiers arising from military conflicts abroad. The years since the campaigns in Iraq and Afghanistan have seen a huge number of claims brought under European human rights laws, with allegations ranging from moderate ill-treatment to torture and murder. However, the Iraq Historic Allegations […]

Flooded? Hints about making an effective insurance claim

A flooded home is a horrible experience. But you have been paying your insurer to cover you against just such a possibility. So you should receive financial and other assistance in putting your property back in order. At least that’s the theory. In the majority of cases, it will also be the outcome. However, a […]

The Christmas gift: is there a Claus of action?

We reported recently about the major change in consumer legislation brought about by the Consumer Rights Act 2015 (the “CRA”). http://gdknowledge.co.uk/the-new-consumer-rights-act-2015/ Here we examine what rights are now available to a consumer who purchased Christmas gifts on or after 1st October 2015, when most parts of the CRA came into effect. For those who planned ahead […]

Dispute resolution: review of 2015 and letter to Father Christmas

It might seem a bit early to be reviewing the year when there is another month to go, but the Christmas lights are up in the streets and the TV ads have been on our screens for weeks. And with less than 4 weeks to Christmas, it is time to send a letter to Father […]

Commercial Real Estate: What can a Landlord do if a Tenant fails to pay rent?

There are a range of remedies available to landlords of commercial properties where the tenant has stopped paying rent. Below is a brief summary of options that may be appropriate in the circumstances. Rent Deposit Drawdown If a deposit has been received from the tenant at the start of the lease, a landlord may be […]

The new Consumer Rights Act 2015

A brief run through some of the key points arising from the Consumer Rights Act 2015 (CRA), an important new piece of consumer protection legislation. Application The CRA is the biggest shake-up of consumer law in decades. It consolidates eight pieces of consumer legislation into a single piece of legislation. The CRA also introduces new […]

Sharland and Gohil: a right to a full and fair hearing

Alison Sharland and Varsha Gohil have won their appeals to the Supreme Court and have been permitted to have the final orders determining their financial applications against their ex-husbands set aside due to non-disclosure. The decisions have already been heralded as opening the floodgates to litigation in the family courts, but what do these decisions […]

New prescribed form of Section 21 Notice

In a previous article we reported on the changes to the regime for ending an assured shorthold tenancy as introduced by the Deregulation Bill, which received Royal Assent on 26 March 2015 and so is now the Deregulation Act 2015. http://gdknowledge.co.uk/deregulation/ As reported at the time, certain provisions of the Deregulation Act 2015 relate specifically […]

What is really wrong with the new criminal cartel offence?

Too broad, too limited: and too far and too fast. Over the summer, a jury took less than three hours to acquit two businessmen  in the galvanised tank industry who had been charged with price fixing.  One other member of ‘ring’ who had pleaded guilty is awaiting sentence and is doubtless regretting his plea (see […]

How to deal with car workshop space invaders

If you are you running out of space in your workshop because you are storing too much of your customers’ unwanted property, read on to find out what you can do to solve the problem! After a successful restoration or rebuild a customer might well ask you to hang on to some of the old […]

Extreme service charges

In a recent decision of the Supreme Court, Arnold v Britton [2015] UKSC36, the occupiers of some of the holiday chalets at the Oxwich Leisure Park, on the Gower peninsula, lost their appeal to have their leases read in such a way so as to avoid payment of exorbitant service charge. Some of the leases, […]

Enforcement of interim binding Dispute Board decisions

International construction projects frequently use an industry form known as the FIDIC Conditions of Contract.  Although the contracts vary, the differences are not significant for the purposes of this article. The FIDIC Conditions of Contract for Construction (where the design is undertaken by or on behalf of the Employer) are known as the “Red Book”.  […]

Significant changes to company law in the UK, Small Business, Enterprise and Employment Act 2015

The government’s aim in introducing the Act is to enable small businesses to innovate, grow and compete. The hope is also that internationally it will endorse the UK as a trusted and fair place to do business. The Act received Royal Assent on 26 March 2015 and is set to have a significant impact on […]

Settlement of disputes: look before you leap…

Litigation can be a risky enterprise as outcomes are often uncertain. In order to try and avoid the uncertainty of a trial, sensible litigants will often consider whether they can reach a settlement of their dispute with the other side long before a trial is in the diary. Settlements give certainty and are very often much cheaper […]

Counterclaim struck out but allowed to stand as a Defence

In the recent case of Cockell v Holton (No 2) [2015] EWHC 1117 (TCC), which was a claim arising out of works to a listed building following a fire, the Judge refused to grant the Defendant permission to pursue a significant Counterclaim, but allowed him to amend his Defence to include the allegations contained in […]

Private residential landlords: do you need a licence?

You are a private residential landlord renting out a property in a “selective licensing” area – did you know that you could face a fine of £20,000 and be ordered to pay back rent to your tenants if you don’t have a licence? Under the Housing Act 2004, local authorities have powers to introduce “selective […]

Adjudication – to be (bound), or not to be?

The recent case of Khurana v. Webster Construction Limited [2015] EWHC 758 (TCC) highlights the need for care when agreeing to be “bound” by an adjudicator’s award. Adjudication is widely used in the construction industry to resolve disputes. It has various advantages over court proceedings, in particular speed and cost. One potential disadvantage is that […]

Does the FIFA Ban on TPO infringe EU Law?

Whether it be huge transfer fees, large broadcasting deals or the financial fair play rules, football and finance is rarely out of the news. The latest issue to rear its head is third party ownership of football players. Whilst the issue in the UK dates back to the well known Tevez-Mascherano saga in 2007, FIFA’s […]

Making a profit out of justice? The latest increase in court fees

Substantial increases to court fees were introduced on 9 March 2015. These replace the previous fee system, with fees now calculated at 5% of the value of claims between £10,000 and £200,000. Where the claim is for a sum of over £200,000, or for an unlimited amount, the fee is capped at £10,000. Fees for […]

The Importance of “Subject to Contract”: A Salutary Lesson

A recent case in the Technology and Construction Court has underlined the risk of inadvertently entering into a contract and reinforced the value of the phrase “subject to contract”. The Background The case of Malcolm Charles Contracts Limited v Crispin and Another [2014] EWHC 3898 (TCC) concerned extensive works to the Crispins’ house in Sevenoaks, […]

Virgin Media’s Ofcom complaint – payback time for the long suffering fans?

Stephen Hornsby’s article originally appeared in World Sports Law Report Volume 12, Issue 12, December 2014. To access the original, please visit: http://e-comlaw.com/world-sports-law-report/article_template.asp?ID=1729 Virgin Media’s Complaint to Ofcom As noticed briefly in last months issue, Virgin Media has complained to Ofcom that the English Premier League (“EPL”) practice of restricting the number of games available […]

Landlords of residential accommodation beware! New immigration rules in force in the Midlands

As of 1 December 2014, landlords of private rented accommodation in certain parts of the Midlands are under an obligation to check and keep records of the immigration status of their tenants and other authorised occupiers in advance of letting their property or accepting them as a lodger.  Failure to do so could lead to […]

Intellectual Property Act 2014: A Summary of the Key Provisions

The Intellectual Property Act 2014 (IPA 2014) came into force on 1 October 2014. It aims to modernise copyright law and help designers and patent-holders protect their IP. It is hoped that the changes will support business innovation and bring clarity to the scope of protection afforded by design rights. Many of the changes will […]

LCIA (The London Court of International Arbitration) Introduces New Arbitration Rules

The LCIA’s new arbitration rules (“Rules”) were introduced on 1 October 2014. They apply to all LCIA arbitrations commenced on or after that date, even if the arbitration agreement (usually found in a clause in a contract) was entered into before that date. In line with the English tradition of saying one thing and meaning […]

A short introduction to Arbitration

Definitions : A simple definition :  A  private court A detailed definition:  A consensual, private, dispute resolution technique, governed by statute, by which a neutral tribunal, acting fairly and judicially, makes a decision which binds the parties (but only the parties). Pros and Cons: See table on page 3 below.  Arbitrability: Disputes may not be […]

Mediation Update: To what extent can a judge nudge?

Judges encouraging parties to attempt to mediate their differences is certainly not a new phenomenon. However, the degree to which parties can be coerced into mediation is subject to the constant evolution of judicial guidance. This article seeks to illustrate the current state of play by bringing to light some recent developments. The Halsey guidelines […]

Liquidators, Trustees in Bankruptcy and Administrators BEWARE: ATE Premiums & CFA Success Fees will Soon be Non-Recoverable in Insolvency Proceedings

This note is relevant to liquidators, trustees in bankruptcy and administrators (“office holders”) who have, or may have, claims which, prior to April 2015, they ought – or wish – to bring against any third party on behalf of the company or bankrupt individual to recover money or property for the benefit of creditors. A […]

The (Copyright) Law of the Jungle

The amusing story of one “selfie”-obsessed macaque monkey has turned into a row which raises novel points of copyright law.

Relief From Sanctions

The Court of Appeal delivers an important decision in the turbulent area of relief from sanctions for non-compliance with Court rules or orders in the wake of the Jackson Reforms and the Mitchell decision. Background: The Jackson Reforms and the Mitchell Decision A great deal has been written in recent times about the “Jackson Reforms” […]

UEFA Financial Fair Play Regulations (FFPR) settlements, Striani complaint and EU Law

  With attentions naturally focussed on an evenly balanced and therefore particularly exciting World Cup, where a number of less heralded small countries are holding their own and even defeating much larger rivals – the role of UEFA’s Financial Fair Play Regulations (FFPR) in protecting the magic circle of clubs from new kids on the […]

“Arbitrate, don’t Litigate”

Jonathan Haydn-Williams’ article was recently posted on the website of the Chartered Institute of Arbitrators at the following link, www.ciarb.org/news/ciarb-blog/arbitrate-dont-litigate.php. It suggests a solution to the difficulties facing anyone seeking to bring a claim of less than £1/4 million against banks, financial institutions, insurance companies and the like. It is said that, many years ago, a […]

A New Competition And Markets Authority: But No New Dawn For Public Competition Law Enforcement In The UK

With a certain amount of trumpeting, the new Competition and Markets Authority (“CMA”) came into existence on 1 April – thus merging the OFT and the Competition Commission. The CMA has the largest annual budget (£52m) of any competition law enforcement agency in Europe – so much will be expected of it. Unfortunately, any reform […]

Copyright: Hyperlinking And The Right Of Communication To The Public

Svensson and others v Retriever Sverige AB Overview Linking is the practice of posting clickable links on the internet which lead to content posted elsewhere. Under s20 of the Copyright, Designs and Patents Act 1988 (“CDPA”), it is prohibited to communicate to the public by electronic transmission the whole or a substantial part of a […]

Penalty Clauses in Commercial Agreements Following El Makdessi v Cavendish Square Holdings

It is common for parties to commercial agreements to agree mechanisms for resolving breaches of their agreement without having to resort to legal proceedings. Typically this is done by incorporating provisions, such as forfeiture or compulsory buy-back clauses, into a contract which are activated upon one party’s breach of its terms. In such a situation, […]

Should Merger Control Be Repatriated To The UK (And All Other Member States)?

Since 2012, the Government has been conducting an audit of EU powers (or “competences” to use the jargon) with a view to seeking whether their repatriation to the UK in appropriate cases.  In a recent consultation, it has got round to asking interested parties on about the current division of regulatory responsibilities between Brussels and […]

Mediation Update

We report on two aspects of mediation: selecting a mediator and the perils of not responding to a mediation proposal. Selecting a mediator The selection of a mediator involves the parties agreeing on a choice of mediator. Given that the parties are in dispute, this can become a difficult and long drawn out process. If […]

Joint Ventures & Implied Fiduciary Duties

The Court of Appeal has confirmed for the first time that a joint venture arrangement can give rise to an implied fiduciary duty owed by the director of one joint venture partner to another partner. In Ross River Limited and anor v Waveley Commercial Limited and ors [2013] EWCA Civ 910, the claimants entered into […]

…By Any Other Name – Mistaken Identity in Contract Law

In the case of Derek Hodd Limited v Climate Change Capital Limited the High Court has delivered a significant judgment which may assist those who fall victim to the consequences of mistaken identity. It is common for businesses to use trading names which bear little or no resemblance to the names of the legal entities […]

European Commission Confirms Validity of Exclusive Broadcasting Rights Agreements

In its Green Paper entitled “Preparing for a fully converged audio visual world” published in the Spring of this year, the Commission gave its gloss on the famous FAPL judgment of the European Court of Justice (Judgment of 4 October 2011). The Court’s judgment had cast doubt on the validity of exclusive broadcasting agreements on […]

Is the Tide Beginning to Turn in Favour of Tenants in Relation to Breaks in Leases?

The High Court has recently held that a tenant was entitled to repayment of apportioned rent “overpayment” following exercise of a break option in its lease.

Help for Landlords Recovering Cost of Major Works

The Supreme Court’s decision in Daejan v Benson may help landlords recover the costs of major works through the service charge, even if they fail to carry out the statutory consultation procedure.

ECHR – its Growing Influence on Substantive Competition Law

To date, the impact of the European Convention on Human Rights (EHCR) on competition law has mostly been confined to procedural matters. For example, Article 6 provisions in ECHR that recite a number of fundamental rights of defence, have often been invoked by companies that have been found guilty of competition law infringements on the grounds that these rights were ignored by the EC Commission. Although these challenges have generally been unsuccessful, it is now accepted that Article 6 rights apply not only to criminal proceedings in the classic sense, but can be used by companies subjected to regulatory fines.

Press Regulation and Exemplary Damages

On 17 March, the three main political parties struck an eleventh hour deal on a new regulatory regime for the press. The agreement, made in the wake of the Leveson Report, will establish a regulator with new powers. We outline exactly what has been agreed and how this will affect news publishers. Then we consider one of the more controversial aspects of the deal concerning exemplary damages, and the likelihood of success of a press challenge based on Human Rights legislation.

Important Changes to English Litigation Costs – Part 2 (Costs Management)

New rules on costs management are intended to benefit litigants by ensuring that the legal costs of fighting a case are proportionate to the issues in dispute. On the face of it this sounds like it must be a positive step, however the reality is that the changes may not be as beneficial as would initially appear to be the case.

Reorganising the Regulation of Financial Services in the UK: The Financial Services Act 2012

1st April sees the introduction of a new structure for the regulation of financial services in the UK. Is its rolling out on April Fools’ Day just a bit of quirky Britishness or a true indication that we would be fooling ourselves in thinking that a mere re-organisation could prevent a repeat of the banking and financial crisis?

Rights to Light – Consultation Paper Published by Law Commission

A consultation paper has recently been published relating to rights to light. This article looks at the key recommendations made and considers the possible effects of any changes.

Validity of Post-Acquisition Restrictive Covenants

In a recent case, the Court considered the issue of whether covenants in a share purchase agreement amounted to penalties and whether restrictions were an unreasonable restraint of trade.

Design Copyright Reform: The Hargreaves Process Bears Further Fruit?

In all the excitement about the (not very significant) changes to digital copyright law brought about by the Hargreaves process, commercially significant changes to UK Design Law have been overlooked

Important Changes to English Litigation Costs – Part 1

In Shakespeare’s time, lawyers adopted a “no fee, no breath” approach. In spite of the still widely held view that lawyers will do anything for money and nothing without it, “no win, no fee” arrangements have become commonplace in recent years in English litigation. However, a series of controversial changes are shortly to be introduced which, depending on one’s viewpoint, may reduce access to justice for some, whilst increasing it for others and place some losing parties in a fairer position, but some in a worse one. Jonathan Haydn-Williams explains the current position and the imminent changes.

When is a House not a House? Leasehold Enfranchisement Update

The Supreme Court gives guidance on the answer to this deceptive question …

Hargreaves: Changes to Protection of Copyright Protected Works

On 20 December 2012 the Government published its final response to the Copyright Consultation following the recommendations made in the Hargreaves Review. What changes can we expect and what has been the reaction to the proposals?

Statutory “Underpinning” of Professional Conduct

If the legal profession has it, why not the Press?

Litigation Landscape in 2013

2013 will see the introduction of a number of the reforms contemplated by the Jackson Report. These reforms will fundamentally alter how litigation is funded in England and Wales

When Might a Cap on Liability be Unenforceable?

A recent decision in the Technology & Construction Court has highlighted where liability caps will be viewed as unenforceable in cases where there is an ongoing obligation under the contract to maintain professional indemnity insurance.

Hillsborough and The Cover Up: Can Our Legal System Regain Public Confidence?

In the last few weeks we have had to confront the inadequacies not only of the police and emergency services’ response to the Hillsborough disaster in 1989, but also that of the legal system which has taken over two decades to investigate the tragedy to anything approaching an acceptable standard.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) received royal assent on 1 May 2012. The primary purpose of the bill was to reform the civil litigation costs and funding framework, but a number of other changes were also included which may have wide reaching consequences for businesses in England & Wales and their directors and senior officers.

Criminal Sanctions for Squatting

After much debate, the offence of squatting has entered the statute books.

Infringement of Copyright in Non-Fiction Works: From Luxembourg to Darlington

Jonathan Haydn-Williams considers three significant court decisions concerning infringement of copyright in factual or historical literary works. In the first, the European Court introduced a new test for infringement, which the second and third have blended into English law. As a result, reproducing even small extracts of news articles may amount to infringement and a headline may in itself attract copyright protection. The third case concerns the story of “Flipper”, a disabled supporter of Darlington Football Club.

Ofcom and the Pub Landlord: Have Sky and (FAPL) Won?

The summer’s exciting sporting action has not entirely obscured important developments off the field in the Pay TV market. Ofcom has been trying for a long time to loosen Sky’s grip on Premier League rights and BT Vision has bought a package of rights at considerable expense. However Ofcom has lost a significant battle before the Competition Appeal Tribunal . And it looks as if the pub landlady’s much trumpeted “victory” will be snatched from her as the Premier League curtails the number of foreign broadcasts. Stephen Hornsby asks whether it is now time for the regulatory authorities to move on.