Disputes and Litigation news

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26 February 2015

Accident “very likely” caused by fatigue still basis for safety prosecution

The Court of Appeal recently dismissed appeals brought by Balfour Beatty and Enterprise following the death of a member of the public driving through a temporary traffic management system on the A50. The case reaffirmed some well-known principles but is a timely reminder of the factors considered in health and safety prosecutions.

25 February 2015

High Court holds that Trustees can take into consideration the interests of employers

The High Court has handed down the judgment in one of the most significant pensions cases in the last 12 months. The case has clarified the widely held view that trustees of pension scheme must act in the best interests of the members of the scheme in all decisions they make. 

24 February 2015

You may not be able to enforce liquidated damages, even if they are negotiated and agreed under contract

The recent decision in MSC Mediterranean Shipping Co SA v Cottonex Anstalt (2015) has cast doubt on the ongoing recoverability of liquidated damages following a repudiatory breach of contract.

13 February 2015

Notice to complete and pre-contract representations

Buyers need to obtain appropriate surveys and need to be aware that Sellers have a right in some circumstances to issue a notice to complete the sale, even if issues arise and the Buyer no longer wants to. We look at a case serving as a valuable reminder of the need to take professional advice when buying properties.

10 February 2015

Burges Salmon appointed to FSCS legal panel

Burges Salmon has been appointed by the Financial Services Compensation Scheme (FSCS) to its newly created legal panel. The firm will provide FSCS with a range of legal services and is one of eight firms appointed to the panel, which FSCS will utilise to manage the majority of its legal advice and representation.

06 February 2015

New Procurement Regulations to come into force on 26 February 2015

It was announced on 6 February 2015 that the long-awaited Public Contracts Regulations 2015 (SI 2015/102) will come into force on 26 February 2015, replacing the Public Contracts Regulations 2006.

02 February 2015

Can Companies House be held liable for errors on the Register of Companies?

It may come as a surprise to some but until very recently no case had raised the duties of Companies House to register company information correctly. However, the High Court has now held in Sebry v Companies House that Companies House does owe a duty of care in negligence to companies in respect of information it places on the Register of Companies (the "Register").

28 January 2015

Easements, boundaries and “an absurd waste of effort, time and cost”

Where does a boundary run where there is a lane, hedge and ditch between two properties and what rights do the owners of those properties have to use the lane? In Gilks v Hodgson, both sides incurred costs far in excess of the value of the land to establish where their boundaries and rights lay.

23 January 2015

Procurement clarification on material variation and internal public authority awards

Further to our recent briefing Should I Stay or Should I go? (Revisited) where we commented on the maintenance of an automatic suspension in the case of Edenred (UK Group) Ltd v Her Majesty’s Treasury, HMRC and NSI [2014] EWHC 3555 (QB), an expedited trial has now taken place. The Court ruled on 22 January in favour of HM Treasury and commented on the area of material variation and direct awards to public sector bodies.

21 January 2015

How much can a taxpayer claim for bad tax advice?

When tax advice is misleading or fails to identify an alternative which would involve a lower payment, how much is a taxpayer entitled to be compensated? What if the alternative is an untested tax-efficient structure and there are doubts about whether HMRC might permit it?

29 December 2014

The question of "necessity" in implied terms

Implied terms are once again in the spotlight after the Supreme Court has granted permission to appeal the Court of Appeal's decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another.

19 December 2014

Minority shareholders: valuation of shares following a dispute

If a shareholder does not own a controlling interest in a company, it or s/he will be vulnerable to the management of the business by the majority. What remedies are available should the company, for example, unfairly choose not to pay dividends; unfairly diminish the value of its shares; or unfairly dilute the shareholding of existing members?  

18 December 2014

Loss of profits and exclusion clauses

The High Court recently published its judgment in the case of Polypearl Ltd v E.On Energy Solutions Ltd [2014]EWHC 3045. The case was a preliminary issue on the interpretation of the exclusion clause.

12 December 2014

The website using my copyright is hosted overseas – am I powerless?

Globalisation and the advancement of technology have made English law on copyright infringement increasingly complex and difficult to navigate. We look at the case of Omnibill v EGPSXXX Ltd. and R. A. Carter.

05 December 2014

What does agreeing a warranty mean – what do you get if it's breached?

Businessmen who insist on warranties in sale agreements may not know the limitations on the protections they are getting.

04 December 2014

How does a Defendant get a third party to contribute to damages it has to pay?

A defendant may often find that another person caused or contributed to the loss which the claimant is trying to recover from it. If so, the defendant will want to seek a contribution from that third party for the payment of any damages the claimant is awarded or towards any settlement.

13 November 2014

Appealing a prohibition notice: the importance of getting the statutory provision correct

When a health and safety prohibition notice is issued against more than one person, can a party who exercises no direct control over the activities appeal it? 

04 November 2014

How do you keep the arguments in a skeleton argument? Answer: follow the rules

The Court of Appeal in Tchenguiz v SFO was not impressed by Counsel choosing to lodge almost 100 pages of 'summarised' argument contrary to the rules, the principles of good written persuasion and the advantages of brevity.

21 October 2014

Could notification to an insurer of a claim be wide enough to cover associated regulatory proceedings?

Businesses notifying potential negligence claims to their insurers may anticipate that the same events could lead to other claims or costs.

20 October 2014

A defendant's refusal to mediate can be unreasonable... even if the claim has no merit

Under what circumstances are you entitled to your costs of the litigation? Refusal to mediate is a relevant factor which the Court will consider in deciding which party should pay the legal costs of the proceedings. We look at the case of Northrup Grumman v BAE Systems.

16 October 2014

Will the court force a disintegrating partnership to sell assets to one partner?

Partnerships which are breaking up face a series of urgent problems – particularly where the business itself is becoming insolvent. These difficulties can be amplified by failing relationships between the partners (who have to work together to wind up the business) and the potential need to realise assets rapidly to stave off the appointment of liquidators.

15 October 2014

Case update: loss of Chance – Chweidan v Mischon de Reya

The recent case of Chweidan v Mischon de Reya is a good example of how the principle of loss of opportunity can reduce an apparently high value claim to a relatively modest damages award – especially in cases where the claimant has been denied the opportunity to bring a claim, so-called "lost litigation".

07 October 2014

Disk Raiders – inspecting devices for evidence of tampering

What can you do if you suspect that a party on the other side has fabricated electronic documents, including emails and invoices? This can happen when disputes arise and evidence begins to appear which does not match your knowledge of the actual events. In such cases you need to ask the court for permission to investigate the origins of such documents.

01 October 2014

Plant and animal health agency brings together government inspectorates

The government is merging four of Defra’s Food and Environment Research Agency (FERA) inspectorates with the Animal Health and Veterinary Laboratories Agency (AHVLA) to form a new combined agency.

16 September 2014

Food crime unit announced

On 4 September 2014 the final version of the Elliot report into food integrity and assurance of food supply networks was published. The report was commissioned by the government in the wake of the horse meat incident last year which had highlighted the importance of a transparent food chain.

04 September 2014

FRC and Mazars agree record settlement

The Financial Reporting Council (FRC) has agreed to settle disciplinary action brought against Mazars and one of its partners, Richard Karmel for a total of £2 million – the largest out of tribunal settlement made by the FRC.

01 September 2014

The FCA changes its mind on why a broker is unfit but he is banned anyway

The FCA has been allowed to change the grounds on which it banned an insurance broker, after having had to accept that its original reasons were flawed.

21 August 2014

Errors on CHAPS payment requests

The courts have been considering who, if anyone, is liable to a customer when CHAPS transfers go wrong. In July 2014, the Court of Appeal handed down its decision concerning accuracy of CHAPS payment requests in Tidal Energy Limited v Bank of Scotland.

21 August 2014

FCA's £8.4m fine highlights risks of outsourcing

The Financial Conduct Authority (FCA) fined an insurance firm £8.4 million this month for failing to treat customers fairly over the sales by outsourcing companies of accident insurance. The fine is a reminder to all companies who outsource functions that they are under a duty to oversee outsourcing companies and ensure they comply with all relevant regulatory requirements.

12 August 2014

Burges Salmon secures positive result for Jock Paget in horse anti-doping case

Burges Salmon's Sport sector experts advised the New Zealand eventer, who was acquitted by the Fédération Equestre Internationale of any malpractice in relation to his horse Clifton Promise.  

08 August 2014

Arbitral Tribunal awards Yukos majority shareholders $50 billion in damages against the Russian Federation

On 18 July 2014, an Arbitral Tribunal sitting in The Hague under the auspices of the Permanent Court of Arbitration (PCA) handed down a historic final award in the decade-long dispute opposing three majority shareholders of the now defunct Yukos Oil Company to the Russian Federation.

14 July 2014

Designs for retail store layouts may be capable of trade mark registration in Europe

The Court of Justice of the European Union (CJEU) has ruled that it may be possible for a retail store layout to be registered as a trade mark.

11 July 2014

Do you have to obey a clause which requires 'friendly discussions' before a claim can be brought?

The English courts have historically shown some reluctance to enforce agreements to “negotiate” or engage in “discussions” where these are conditions precedent to commencing arbitration or litigation.

20 June 2014

EU Commission's controversial view on UK 'traffic light' labelling

The European Commission is investigating whether the UK's 'traffic light' food labelling is compatible with EU law, following Italy's complaint that it is an illegal bar to free trade. The investigation highlights the tensions that can exist between food policy in some member states and the wider trade interests of the EU.

13 June 2014

When can Judges refuse to hear a Judicial Review application which is 'totally without merit'?

Given the increasing caseloads being handled, courts are keen to establish a fair approach to disposing of unmeritorious claims at an early stage. In doing so, the courts have been careful to tread a consistent line between the needs of effective administration of justice and courts and the litigant’s right of access to courts.

10 June 2014

The Serious Crime Bill has been published

The Serious Crime Bill referred to in the Queen’s Speech on 4 June has now been published. It contains various measures aimed at tackling serious organised crime, strengthening powers to seize the proceeds of crime and protecting vulnerable women and children.

23 May 2014

Groundless threats reforms

The Law Commission's final report on its proposals for reform in the area of groundless threats concludes that protection against groundless threats in relation to patents, trade marks and design rights should be retained, but reformed.  

16 May 2014

Bad news for interventionist shareholders – three decisions in favour of the company

When minority shareholders are at loggerheads with the company, tough decisions often have to be made in short timescales and the relationship can quickly become poisonous.  

08 May 2014

Disabled passenger access to the rail network

On 28 March 2014, the ORR published findings from its research on disabled travellers’ awareness of the assistance available when travelling by rail.

02 May 2014

Burges Salmon appoints new partner in Food, Farming and Land team

Burges Salmon is pleased to announce that it has promoted Sian Edmunds, from the firm’s Food, Farming and Land team, to partner. The promotion, effective from 1 May 2014, reflects the firm’s continued growth in the Food, Farming and Land sector.

29 April 2014

FCA hits brokers again over anti-bribery failings

Besso Ltd, a Lloyd's broker, joins Aon, Willis and JLT Specialty in being fined by the FCA for anti-bribery systems and controls failings, as part of the FCA's continued targeted enforcement in this area.

25 April 2014

Court proceedings may cost you confidentiality in your documents

Commercial parties invariably place a higher value on the confidentiality of their documents than the courts appear willing to tolerate. Commercial parties in court litigation should expect at least some erosion of confidentiality in their documents.

24 April 2014

How do an exclusion clause and a workshare arrangement fit together?

A dispute arose in relation to IT and business process services provided to the DVLA by IBM. IBM subcontracted the day to day activities in relation to the IT infrastructure to Fujitsu whilst retaining responsibility for IT transformation and strategy.

09 April 2014

Burges Salmon’s Sports Disputes team wins again in Court of Appeal

Burges Salmon's acclaimed Sport team has secured a successful outcome for its client, Prodrive Holdings Ltd, in the Court of Appeal.

08 April 2014

Getting evidence from third parties – how far can you go?

A party in court proceedings will need documents to support its case. It, and its opponent, will invariably have some of those documents and will have to provide them. But what if relevant documents are also (or principally) held by a third party? Can that third party be made to provide its private documents?

01 April 2014

When a contract requires you to be commercially reasonable, what do you have to do?

Despite a lot of words being poured out on the subject, the basic principle that contracting parties do not automatically (ie without express contractual words) owe each other an obligation to act reasonably is still true in most cases. However, if you have a contract which expressly requires you to act reasonably, how this affects your freedom to act will depend upon the exact wording.