Disputes and Litigation news

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06 October 2015

Judge refuses to revisit judgment because evidence was missed out of the court papers

When evidence is inadvertently left out of the papers put before the court, can the judge revisit the judgment when the missing material comes to light?

30 September 2015

Limitations on the scope for banks to identify the mistaken recipients of bank transfers

When a bank’s mistake leads to the wrong person receiving a transfer of money, a ‘Norwich Pharmacal’ order can be used to identify them. However, a recent case has highlighted limitations on these applications, and suggested that their use be restricted in the future.

24 September 2015

Widespread errors identified in European procurement should lead to EU funds being withheld

There were errors in 40% of the public procurement processes used to distribute EU budget funds in 2007-2014. The European Regional Development Fund, the Cohesion Fund and the European Social Fund divert funds from the EU budget to development projects in Member States aimed at reducing economic and social disparities and strengthening cohesion, and investing in people.

15 September 2015

Reduction in the extent to which safety law applies to self-employed people

From 1 October 2015, the scope of self-employed persons subject to the duty set in section 3 of the HSWA will be amended by the Deregulation Act 2015 (Health and Safety at Work) (General Duties of Self-Employed Persons) (Consequential Amendments) Order 2015.

14 September 2015

All monies charge securing a subsequent loan

Depending on its wording, an “all monies” charge can secure a subsequent loan even if that charge is mistakenly removed. The decision in NRAM Plc v Evans and another - 2015 EWHC 1543 (Ch) also reinforces the idea that a lender may be able to “tack” further loans onto its initial security depending on the wording of the charge.

14 September 2015

Statutory demands relating to multiple debts with an aggregate over £750

The High Court has held that statutory demands will not necessarily be set aside if the undisputed debt is less than £750, where there other debts which would take the cumulative total over this limit. 

08 September 2015

Causative limits in a professional negligence claim

Negligent advice must be causative of loss for damages to be recoverable. However, the causation must be real. In Geraint Thomas and Christine Thomas v Ian Albutt [2015] EWHC 2187 (Ch), even though advice was (in part) negligent, it reduced the prospects of success in litigation by only 5-10%, which the Court decided was not sufficient to be causative of a loss of a chance.

27 July 2015

What are the Court’s powers to order sale of land from one joint owner to another?

When property (land) belongs to more than one person and disagreements emerge about what to do with it, what can beneficiaries and trustees ask the Court to do? The Court has powers over land held for several individuals under the Trustees of Land and Trustees Act.

14 July 2015

Resolving conflicting jurisdictional clauses in connected agreements

A well drafted contract will contain both a governing law and governing jurisdiction clause. However, difficulties can arise when parties enter into two (or more) separate contracts in which these clauses conflict.

25 June 2015

In Theory - GM Crops

With the increasingly negative perception of GM products, what impact would a Welsh Government ban on GM crops entering Wales from England have? Kevin Kennedy, partner, Simon Tilling, senior associate, and Nick Laver, trainee solicitor in litigation, consider a hypothetical scenario and explain how any neighbouring disputes could be resolved.

19 June 2015

Court of Appeal holds that HSE was correct to issue a Prohibition Notice without first giving the recipient an opportunity to prove that safety was not at risk

A health and safety inspector has won her appeal against a decision of the Administrative Court  which quashed a prohibition notice she had served on Rotary Yorkshire Limited in December 2012.

04 June 2015

Acquiring an ‘enterprise’ under UK competition law - Court of Appeal rocks the boat in Eurotunnel/SeaFrance

The Court of Appeal has upheld an appeal brought by SCOP against the decision of the Competition and Market Authority (CMA) on jurisdiction in the Eurotunnel/SeaFrance merger. SCOP, a body of mainly former SeaFrance employees, challenged the CMA's finding that it had jurisdiction to review the acquisition of certain assets of SeaFrance by Eurotunnel. The CMA's review of the acquisition, founded on its decision on jurisdiction, had led to a prohibition decision.

21 May 2015

Large companies to be forced to address their payment practices

In a move that will impact businesses both large and small, the Government has confirmed the continuation of plans to empower SMEs, mandate prompt payment of debts under public contracts, and force large companies to publicise their payment practices.

30 April 2015

The risk of bias in sports arbitration

Two professional boxers have made an unsuccessful application for the British Boxing Board of Control to be removed as the arbitrator of their respective disputes with their managers on the grounds that there were justifiable doubts about the Board’s impartiality.

27 April 2015

Burges Salmon appoints six new partners

Burges Salmon is pleased to announce that six new partners have been appointed to the partnership, half of whom trained with the firm and have progressed from trainee to partner. This brings Burges Salmon’s total number of partners to 81 as of 1 May 2015.

02 April 2015

Scrabble vs Scramble: Mattel succeeds against Zynga in the Court of Appeal

On 27 March 2015, the Court of Appeal handed down its judgment in the dispute regarding the Scrabble trade marks between JW Spear & Sons Ltd (“Mattel”) v Zynga Inc (“Zynga”).

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.