Disputes and Litigation News

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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.

28 March 2014

Endeavours and certainty

In February 2011, Andrew Olins' dream to own and drive a Bristol 405D drophead coupe looked like it was going to come true. He saw an advert from Bristol Cars offering a 405 as a restoration project and agreed to buy the car and pay for the works.

27 March 2014

How imaginative settlements to disputes can turn out to be less than clever

Parties facing a dispute are usually well advised to try to reach an agreement to avoid it. However, a solution that is too imaginative can backfire. If part of a deal is something the courts cannot enforce, then, at best, that part of the settlement will not be binding.

20 March 2014

Burges Salmon continues growth with four new partner promotions

Burges Salmon has made up four new partners in the key growth areas of Banking, Employment, Financial Services and Food, Farming and Land.  

20 March 2014

Court of Appeal upholds right to operate taxi permit schemes on private land

First Great Western has successfully upheld the legality of a permit scheme introduced at Temple Meads station in 2012 following the Court of Appeal’s confirmation of the High Court decision.  

14 March 2014

Online CPDcast course on Penalty Clauses in SPA agreements

Dispute Resolution specialists from leading UK law firm Burges Salmon have contributed to a podcast for online CPD training course, CPDcast.

14 March 2014

Investigatory reports liable to be used as evidence in subsequent proceedings

In transport industries, accident reports are prepared by independent agencies to investigate the causes of incidents with the aim of avoiding future repetition. A recent decision in the Court of Appeal supports the view that such reports provide valuable independent analysis of the facts and consequently can and should be used in subsequent court proceedings of any type.

10 March 2014

Does limitation of liability make it easier to get an injunction?

Where a supplier’s breach of contract could make you breach your own contracts and potentially become insolvent, you might reasonably hope to convince a court to stop the supplier acting until after you have obtained a ruling on the breach. However, the high court in AB v CD (3 Jan 2014) recently refused to grant an injunction in such circumstances.

10 March 2014

A binding deal even when the document was not signed

Parties who negotiate contracts but choose not to sign them when the moment comes usually expect not to be bound. However, the courts are finding binding contracts have arisen in such circumstances.  

19 February 2014

Burges Salmon advises Bluefield on acquisition of £21m solar farm

Leading UK law firm Burges Salmon has advised investment company Bluefield Solar Income Fund on its acquisition of a solar farm in Swindon for a total investment consideration of £21 million.

19 February 2014

Financial Ombudsman awards decisions cannot be 'topped up' in court proceedings

The Court of Appeal has recently confirmed that where a consumer has accepted a decision of the Financial Ombudsman Service, the consumer will be prohibited from bringing the same claim in the Court for further damages.

18 February 2014

Who pays for flooding?

The costs of flood damage and lost productivity from flooded property and farms will be ranked in £Billions.

13 February 2014

Insurer bound to pay under a follow clause

Can a follow clause in an insurance policy require an insurer to pay even when a settlement entered into by other insurers in respect of the same loss is expressed as not binding other insurers? Apparently, it can.

13 February 2014

Proposals for sharing confidential bidder information between government bodies

The Cabinet Office has issued a policy note which aims to ensure that procurement information relating to bidders can be shared across central government bodies. 

13 February 2014

Court of Appeal judge criticises West Yorkshire Police in Leeds United case

An Appeal Court Judge, Lord Justice Moore-Bick, has criticised the conduct of West Yorkshire Police in the latest aspect of the ongoing dispute between Leeds United Football Club and West Yorkshire Police.

13 February 2014

Rare interpleader relief awarded to Football League

The Football League was recently awarded rare interpleader relief in the Bristol Mercantile and Commercial Courts. 

12 February 2014

Exposure for individuals who control companies but are not registered directors

Normal corporate management structures and legal theory do not always march in step. The reality is that, despite neat legal theory, businesses can be run (or influenced by) individuals who are not legal directors registered at Companies House.

10 February 2014

Confidentiality and the punishment for using your contracting party’s customer lists

When a contractual arrangement breaks down or is terminated, both parties may be tempted to contact their common customers to offer to continue the service. That can, however, be an expensive mistake if the contact list does not belong to you as Rentokil has recently discovered.

10 February 2014

FCA publishes its first warning notice statements

One of the new powers adopted by the FCA is, as explained in our Legal Update in October 2013, the power to issue warning notice statements to regulated entities and individuals.

04 February 2014

Strained relations in the UK yoghurt market

According to the Court of Appeal, a substantial proportion of the yoghurt-eating public believe that Greek yoghurt comes from Greece and consider this to be an important fact. Yoghurt made elsewhere should consequently not be labelled ‘Greek’.

04 February 2014

Contractual arbitration clause binds in decision on criminal activity

Many commercial contracts divert certain disputes about their interpretation or performance to arbitration rather than the Court. The exact scope of disputes referred to arbitration will depend upon the drafting of the clause itself. A question of the scope of an arbitration agreement came up in Interprods v De La Rue in January 2014. 

04 February 2014

Insurers avoid requirement to pay commission under affinity schemes

Insurers and brokers with a product suitable for certain sections of the public will often team-up with organisations or businesses with existing links to those individuals. In exchange for access to membership or contact lists, the insurer may be prepared to give special terms or favourable rates and/or share commission with the introducer organisation. Our insurance team looks at a significant case.

31 January 2014

Partnership disputes – appointment of receivers

Recent case law has highlighted the courts' willingness to allow interim relief in partnership actions in order to "hold the ring" until the issues between the parties have been resolved. This was regardless of the cost of the interim proceedings and the delay by the applicant in bringing them.

30 January 2014

Patent Update: Virgin Atlantic and Zodiac Seating in Court again

Last month's Court of Appeal judgment in Virgin Atlantic Airways v Zodiac Seats (Ltd) and others marked another decision in this long-running patent dispute. The ruling follows the Supreme Court decision in the parallel case Virgin v Zodiac [2013] UKSC 46.

29 January 2014

Mayor of London and TfL adverts: not so proud

Core Issues Trust, a Christian organisation whose purpose is to support homosexuals "who voluntarily seek a change in sexual preference and expression", had sought to place an advert on London buses in response to adverts disseminated by Stonewall. The events that followed were the subject of a recent decision by the Court of Appeal which could result in the Mayor of London being added to the proceedings as a defendant.

27 January 2014

Can Google use your search history to market to you?

By watching the things we search for, Google can identify what we might want to buy and will use this information to target suitable adverts at us. The English Court has decided to rule on whether it can do so.

24 January 2014

No liability for a reasonable driver’s emergency stop

The court has supported a driver – and the bus company employing him – whose emergency braking caused a passenger on the top deck to suffer serious injury. This decision should reassure drivers that they will not be liable for doing their job properly and taking emergency action.

03 January 2014

Sharing out the responsibility for repeated negligence

Where two (or more) advisors or suppliers are involved in providing a service (or goods) and both are (separately) negligent how do they share the claim? Our dispute resolution team explains. 

03 January 2014

FCA intervenes in price comparison advertising campaign

In December 2013, the price comparison website MoneySuperMarket.com Financial Group Limited completed a Voluntary Application for Imposition of Requirement. The Voluntary Application was subsequently published by the FCA.

17 December 2013

Wife prosecuted for opening an account for her husband

The Court of Appeal has confirmed that 'helping out' a family member (or anyone else) who is engaged in criminal breaches of financial services legislation can lead to prosecution. Our financial services regulatory team looks at an important case.

12 December 2013

The FCA levies fines for the year totalling £446.1m

The Financial Conduct Authority has levied fines for the year totalling £446.1 million, reflecting the tougher, pro-active stance being adopted by the new-look regulator.

09 December 2013

Does the negotiated procedure allow an authority to negotiate mandatory technical requirements from the tender?

The European Court was asked whether an authority is free to revise mandatory technical requirements included in its tender documentation. Our procurement team looks at the case of Nordecon v Rahandusministeerium.

06 December 2013

Winding up petitions on disputed debts

Whenever there is an apparent monetary debt, common practice is for a claimant to threaten a winding up petition as part of the tactics to get a potential defendant to pay up.

05 December 2013

Trustee wins important victory in battle to obtain contribution notice

The Trustees of the Desmond & Sons pension scheme have successfully overturned a decision by the Upper Tribunal to strike out a case against a shareholder who benefited handsomely from the winding up of clothing manufacturer, Desmond & Sons in 2004.

02 December 2013

Clients in proceedings can be personally punished for signing untrue pleadings

A reminder from the Court of Appeal about the importance of clients being sure documents are true before signing statements of truth. Our dispute resolution team looks at the case of Makdessi v Cavendish.

02 December 2013

Sued for criticising a competitor’s products – malicious falsehood

Companies going head to head with their competitor’s products can be tempted publicly to point out the advantages of their own product against their opponent’s. Doing so can be a minefield of liability, if you damage your opponent’s brand.

29 November 2013

Disclosure of Defendant’s Insurance

Insured parties entering disputes and insurers generally should take note of the potential shift in balance between parties arising from a judge having the policy.

29 November 2013

Company sales – is forfeiture of earn out an unenforceable penalty?

Buyers of businesses will normally try to restrain the sellers from competing against them after sale in order to preserve the goodwill of the business being bought. The Court of Appeal has cast some doubt on whether forfeiture clauses and forced 'call options' are enforceable in Makdessi v Cavendish Square.

28 November 2013

Security for costs

Can you make a claimant put up some funds at the start of a case to cover any cost award in your favour? The Court has formal rules governing when a judge can require a claimant to pay some money into court – known as security for costs.

26 November 2013

Copyright protection for computer software - Court of Appeal holds firm

In the leading software copyright case of SAS Institute Inc v World Programming Ltd, the Court of Appeal recently dismissed an appeal by SAS concerning the extent to which copyright protection can be granted to computer software. It confirms that establishing infringement will be difficult unless you can prove there is access to and copying of the source code.

22 November 2013

Local Council winning when it was wrong

When responses to consultations are not properly considered by local councils, affected members of the public can, in theory, bring Judicial Review proceedings. However, courts appear to be very reluctant to overturn decisions, even where they expressly find that the council has breached its duties.

22 November 2013

Doorstep selling regulations apply even where the customer asked for the visit

Our dispute resolution team considers the regulation surrounding cold calling and looks at the significant case of Salat v Barutis.

21 November 2013

Everybody’s wrong – contracts which don’t reflect the agreement you reached

You get a horrible sinking feeling when you pick up a contract that doesn’t say what you thought it did. But if the draftsman got it wrong, are you bound by the written terms, even if neither party intended that?

21 November 2013

Safety of land on which children may play – and who is liable for injury

The Court of Appeal has overturned a judgment against a council found liable for an injury sustained when a child punched a water fountain. The judgment is an example of the courts ensuring that the law does not part company with common sense.

20 November 2013

The works of Eva Cassidy – copyright and a distribution dispute

The distribution and copyright in the works of the late vocalist, Eva Cassidy, was at the centre of a recent dispute in the High Court in Straw & Anors v Jennings Ors [2013] EWHC 3290 (Ch). Our intellectual property disputes team takes a closer look at the case and the issues surrounding it.

20 November 2013

The valuation of partnership assets on dissolution

Although partners may not want to think about the break up of a partnership, it is critical that thought is given and agreements reached before the business or relationship breaks down. Our Food, Farming and Land team considers the recent case of Ham v Ham & another.

19 November 2013

Direct award of concessions is a breach of transparency

Despite often being outside the procurement regulations, authorities awarding concession contracts must comply with overarching obligations of equal treatment and non-discrimination on the basis of nationality. This means that they must comply with obligations of transparency when advertising and awarding the concession. Our procurement team looks at two significant European Court cases.

19 November 2013

Avoiding collisions: which country decides an international dispute?

The classic problem of international disputes is the possibility of contradictory decisions in different countries over the same facts. The case of the Alexandros T sheds some light on the English court's approach to related proceedings issued in different European jurisdictions.

14 November 2013

Defamatory material on websites – is the website host liable?

Website operators will shortly have a defence to claims of defamation arising from statements posted by others on their sites provided they can show that they did not themselves post the statement. Our IP disputes team looks at the draft Defamation (Operators of Websites) Regulations 2013 setting out the steps website operators must follow.

14 November 2013

Keeping confidential lending policies out of professional negligence litigation

Our Professional Negligence litigation team looks at the tension between preserving confidentiality and a defendant’s right to argue about causation in the case of Ward Hadaway v DB UK Bank.

11 November 2013

Professional negligence in failing to explain the effect of documents

Our professional negligence recovery team considers the role of professional negligence in failing to explain the effect of documents. This significant case acts as an important reminder to both solicitors and clients.

08 November 2013

What is reasonable notice for termination of a supply contract?

Contracts without express termination provisions and, in particular, unwritten contracts with implied terms are usually terminable on reasonable notice. So what is reasonable notice? Ian Tucker from our Dispute Resolution team comments on emerging issues from a litigation perspective.

06 November 2013

A practical question of keeping documents from your opponent

The legal principle of ‘privilege’ is a theoretical concept which proves very hard to apply in practice. Ian Tucker from our Dispute Resolution team comments on the legal issues from a litigation perspective.

30 October 2013

Sale of goods – when a retention of title clause works

Ian Tucker from our Disputes and Litigation team comments on the case of Fadallah v Pollak as a sequel to Wilson v Holt from a litigation perspective.

29 October 2013

Residential service charges – the post-Daejan world

Our Real Estate Litigation team takes a look at the case of Daejan Investments Limited v Benson and others [2013] UKSC 14 and the significant decisions made by the Supreme Court.

28 October 2013

Corporate power behind the throne held to account as a shadow director

The Court in Vivendi SA and Centenary Holdings Ltd v Murray Richards and Stephen Bloch has brought some clarity to the previously uncertain issue of shadow directors' duties and obligations.