Law Brief Update, December 2018 Welcome to the latest issue of Law Brief Update, a free monthly newsletter, written by our team of specialist barristers. It provides a brief introduction to recent case law in all the major areas of law. You have received this email at newsletter@newslettercollector.com, because you are signed-up to our newsletters via lawbriefpublishjing.com, www.lawbriefupdate.com or www.pibriefupdate.com. Scroll to the end for contact, unsubscribe info etc. If you'd like to advertise or write articles for us then please email us at mail@lawbriefpublishing.com. Aidan Ellis, Anthony Johnson, Tim Kevan (editors) Contents Construction Paul Bury, Keating Chambers, 020 7544 2600 S & T (UK) Limited v Grove Developments Limited [2018] EWCA Civ 2448 This appeal case considered whether a party is entitled to pursue a claim in adjudication to determine the true value of an interim application, where it has failed to file a pay less notice in respect of that application, a question which has been the source of conflicting High Court judgments. Grove had contracted S&T to design and construct a hotel under a JCT Design and Build Contract 2011 with amendments. S&T sent an interim application for payment to Grove, with an increased value in comparison to Grove's previous valuation. Grove issued its own payment notice, which was served late. However, it then issued a Pay Less Notice for liquidated damages for delay. S&T argued that the Pay Less Notice was invalid as it was out of time. Grove made no subsequent payment and argued that its Pay Less Notice was adequate and on time, and in the alternative sought to commence its own adjudication to establish the true value of the interim application. At first instance, Grove was successful both on the validity of its Pay Less Notice and its right to commence adjudication for the true value of the interim account. The Court of Appeal agreed that the Pay Less notice issued by Grove was valid. Sir Rupert Jackson, delivering the unanimous verdict, went on to agree with the first instance judge that an employer who has failed to serve a Payment Notice or Pay Less Notice, is nevertheless entitled to adjudicate to determine the true value of an interim application. The employer can recover an overpayment at an interim stage by adjustment at the next interim payment. Where this is not practicable, recourse to an adjudicator is provided in the statutory scheme, which enables adjudicators to review interim applications in the absence of a payment or pay less notice. Sir Rupert decided that the right to start such an adjudication can only be exercised after the employer had complied with the payment obligation on the basis that the Construction Act 1996 (as amended in 2011) created a hierarchy of obligations: the immediate statutory obligation is to pay the notified sum, as set out in section 111. Section 108 of the Act contains an adjudication regime for the resolution of all disputes, including any disputes about the true value of the works done. As a matter of statutory construction and under the contract, the adjudication provisions are subordinate to the payment provisions. Therefore, both the Act and the contract must be construed as prohibiting the employer from pursuing an adjudication for re-evaluation before he has complied with his immediate payment obligation, but nevertheless after this point such a right arises. Costs & Civil Procedure Harriet Wakeman, Temple Garden Chambers, 020 7583 1315 Juliet Wells, Temple Garden Chambers, 020 7583 1315 Tim Kevan, www.timkevan.com COSTS Andrew Graeme Waring v Mark McDonnell (unrep., Brighton County Court, 6 November 2011): The Claimant and Defendant had been cycling in opposite directions and collided head-on. Both sustained personal injury and brought claims for damages. The Judge found for the Claimant and dismissed the Defendant's counterclaim. It was held that the Defendant was not entitled to the protection of qualified one-way costs shifting in relation to the costs of the Claimant's successful claim. This was because he was not an unsuccessful claimant in the Claimant's claim, but an unsuccessful defendant. The court expressly disagreed with the approach taken in Ketchion v McEwan (unrep., Newcastle & Tyne County Court, 28 June 2018) where it had been held that, in CPR 44.13, the word "proceedings" included both a claim and counterclaim. HHJ Venn stated that, if the approach in Ketchion was followed, a number of undesirable consequences would arise, including the fact that insurers of defendants would be incentivised to bring counterclaims for damages for personal injury to ensure there would be no liability for costs. Astex Therapeutics Ltd v Astrazeneca AB [2018] EWCA Civ 2444: In this case the Respondent had made an offer which was significantly more favourable to the Appellant than the outcome that the Appellant achieved at trial. However, the offer was not made under CPR Part 36 and therefore there were no automatic costs consequences (following F&C Alternative Investments (Holdings) Ltd v Barthelemy [2012] EWCA Civ 843). However, the offer was relevant under CPR Part 44 which obliges the court to consider all the circumstances of a case when deciding the order for costs. The court considered that although there might be some cases where the refusal to accept a reasonable offer was capable of justifying an award of indemnity costs, that situation would only arise where the failure to accept such an offer was itself unreasonable. In this case it was held that the Appellant's conduct did not justify an order for indemnity costs and that part of the order was set aside. CIVIL PROCEDURE (1) WH Holding Ltd, (2) West Ham United Football Club Ltd v E20 Stadium LLP [2018] EWCA Civ 2652: The Appellants (collectively, "West Ham") had applied for disclosure of six emails in respect of which a claim of privilege had been made by the Respondent ("E20"); it also applied under CPR 31.19(6)(a) for the court to inspect the emails, for the purpose of deciding the main application. As a reminder, insofar as relevant CPR 31.19 provides: "... (3) A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing - (a) that he has such a right or duty; and (b) the grounds on which he claims that right or duty. ... (5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld. (6) For the purpose of deciding an application under paragraph (1) (application to withhold disclosure) or paragraph (3) (claim to withhold inspection) the court may - (a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and (b) invite any person, whether or not a party, to make representations ..." The underlying litigation concerned a contractual dispute between West Ham and E20. The six emails at the heart of this application were sent between E20's board members, and between the board members and stakeholders, and were said to consist of discussions about "a commercial proposal for settling the litigation". Litigation privilege was asserted on the basis that the emails were created with the dominant purpose of formulating an offer of settlement, and that assertion was upheld by the judge relying on Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 (and, at the same time, refusing to inspect the documents under COR 31.19(6)(a), relying on the dicta of Beatson J in West London Pipeline and Storage Ltd v Total UK [2008] 2 CLC 258 to the effect that the statement of truth on the disclosure list was to be taken as conclusive unless one of a number of exceptions was satisfied). The Court of Appeal (Sir Terence Etherton MR, Lewison LJ, Asplin LJ) overturned that decision. It was trite that litigation privilege was engaged when adversarial litigation was in reasonable contemplation, and once engaged, it covered communications between the parties, their solicitors and third parties seeking advice or information for the sole or dominant purpose of conducting the litigation. Further, it was also well-established that the concept of 'conducting litigation' included deciding whether to settle it: Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd. However, Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd did not go so far as to extend litigation privilege to purely commercial internal discussions as to the most commercially viable options for settlement. That, naturally, was subject to the orthodox principle that litigation privilege would protect documents in which advice or information obtained for the sole or dominant purpose of deciding whether to settle was mixed with non-privileged material, and could not be disentangled, as well as those non-privileged communications which would otherwise reveal the nature of the advice or information. It was therefore not necessary to consider whether the court should inspect the documents under CPR 36.19(6)(a). But obiter, the Court of Appeal considered that Beatson J's formulation of the relevant principles in West London Pipeline and Storage Ltd v Total UK was overly narrow and restrictive. The proper approach was that the power to inspect a document is a matter of general discretion, to be exercised in accordance with the overriding objective. Relevant factors would include (a) the nature of the privilege claimed (b) the number of documents involved and (c) their potential relevance to the issues; and when inspecting documents the court should always be astute to the danger of looking at them out of context. Stephen Mark v (1) Universal Coatings & Services Ltd, (2) Barrier Ltd [2018] EWHC 3206 (QB): This case concerns the obligation in CPR PD 16 paragraph 4.3 to serve a medical report and schedule of loss with the particulars of claim in a personal injury action. The Claimant allegedly suffered silicosis and massive pulmonary fibrosis as a result of inhaling silica dust during his employment with the Defendants. He instructed solicitors in 2013, and in 2015, shortly before expiry of the limitation period, a claim form was issued and an order obtained extending the time for extending time for service of the claim form, particulars of claim and supporting medical evidence. Thereafter, the solicitors went into administration and new ones were appointed, who served the claim form and particulars within the (extended) time limit, but no accompanying medical evidence. The medical report and a draft schedule of loss eventually followed several weeks later. The Defendants successfully sought strike-out of the Claimant's claim. The judge found that the obligation in CPR PD 16 paragraph 4.3 was that the claimant "must" serve the medical report and schedule of loss with the particulars of claim, and that paragraph therefore contained an implied sanction such that the principles of relief from sanctions were engaged. He refused relief and struck out the claim. The High Court (Martin Spencer J) reversed that decision. No sanction (implicit or otherwise) was engaged, and so the judge was wrong to find that the Denton principles applied. First, although CPR PD 16 paragraph 4.3 used the word "must", that was not determinative. The word "must" was used liberally in the CPR, and if relief from sanctions needed to be applied for in all cases where a rule or practice direction used it, absurd results would ensue and the courts would be inundated with wholly unnecessary applications. Second, CPR PD 16 paragraph 4.3 was not in the category of rules using the word "must" where an implied sanction ought to be applied. CPR PD 16 paragraph 4 applied to all cases, from the most simple to the most complex. It was plain that in complicated cases there was a limit to what could be achieved at the early stage of service of the particulars of claim, and that sometimes it would be better to refrain from serving accompanying medical evidence, than to serve a document which was unhelpful and uninformative. Accordingly, the judge had erred in his approach and the claim was reinstated. Following Stephen Mark v (1) Universal Coatings & Services Ltd, (2) Barrier Ltd, in appropriate cases, the proper approach will not to be to apply the relief from sanctions principles, but to consider whether a proportionate sanction ought to be applied for the non-compliance - such as unless orders, penalisation in costs, etc. Get Your Message Heard by 10,000 Readers | Do you offer a product or service to lawyers? Now you can place your ad in this newsletter and be seen by more than 10,000 Lawyers in the UK. Contact us now: mail@lawbriefpublishing.com or 0844 5 873 283. | Employment Law Ellen Robertson, Temple Garden Chambers, 020 7583 1315 Saha v Capita PLC UKEAT/0080/18/DM An employment tribunal is not entitled to rely on a list of issues that miscategorises the claim before them. The Claimant, an accountant, wrote to several senior managers at her employer advising she would not work the proposed hours for year-end as they were detrimental to her health and safety, and breached the Working Time Regulations. She was offered £10,000 to terminate her employment a few days later. She then lodged several claims before the employment tribunal, representing herself. The tribunal set out the matters relating to the email as two issues in a list of issues, to which the Claimant did not object, as a protected disclosure detriment claim, and a working time detriment claim. However, both had been pleaded as protected disclosures. The EAT rejected the submission that a tribunal was bound by its list of issues. The core duty of the tribunal was to determine cases in accordance with the law and the evidence. Wood v Durham County Council UKEAT/0099/18/OO The tribunal was right to dismiss a disability discrimination claim brought on the ground that a manifestation of the Claimant's disorder was the excluded condition of a tendency to steal. The Claimant went to a chemist and left without paying for items in his bag. He was then dismissed by the Council for this reason. The Claimant asserted that he had post-traumatic stress disorder and dissociative amnesia, and brought a disability discrimination claim. He claimed that the accusation of shoplifting and subsequent issue of a fixed penalty notice had arisen from his disability. The Council conceded that the Claimant had PTSD and was disabled, but relied upon Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010 where a tendency to steal is an excluded condition. The tribunal concluded that the effective cause of the dismissal was the tendency to steal, the claim had to fail. On appeal the EAT held that the tribunal had directed itself properly on the authorities. It had not erred in concluding, on the evidence, that a manifestation of the Claimant's post-traumatic stress disorder and disassociate amnesia was a tendency to steal within the meaning of Regulation 4(1)(b). The appeal was dismissed. Financial Services Law James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Three Stone, 020 7242 4937 McDonagh v Bank of Scotland Plc & Ors 30/11/18 (Ch) In a dispute between a bank and its customer as to the currency in which a loan was to be repaid, on the proper construction of the agreement the currency risk remained with the customer alternatively there was a clear case for rectification on the ground of common mistake. The allegations of duress and intimidation by the customer against the bank in respect of a refinancing were not made out. The bank was entitled to recover the sums due under the refinancing agreement. There had been no breach of duty by the receivers appointed by the bank in enforcing the bank's security over the mortgaged property. Mason & Anr v Godiva Mortgages Limited 30/11/18 (QB) Customers alleged that a mortgage company should not have advanced them an interest only mortgage because it should have realised that their stated income figure in the online application form was implausible and likely to be false and that the mortgage was unaffordable. The mortgage company counterclaimed for the total outstanding balance on the mortgage account and an order for possession. No duty of care was owed by the company and there had been no breach of the MCOB rules. SCDS Tofan SRL v Master Chem Oil Ltd 29/11/18 (Comm) Following a settlement agreement providing for payments in Romanian currency the paying party made the first two instalments in US dollars. There had been no variation of the agreement to vary the contract terms for the currency of payment to be changed to US dollars. The email referring to the intention to do so was not in the language of obligation. USB AG v Rose Capital Ventures Ltd & Ors 21/11/18 (Ch) A loan agreement that gave the mortgagee "absolute discretion" to require repayment on three months' notice was not subject to an implied term that it be exercised rationally in accordance with Braganza v BP Shipping Ltd [2015] USC 17. The existence of a duty of good faith by reason of the mortgagor/mortgagee relationship pointed against such an implied term in relation to a core contractual provision. PF (International Limited) v Financial Conduct Authority 6/12/18 (UT (Fin)) The Upper Tribunal rejected an application for a direction that the decision by the FCA to remove the company's right to exercise lender's rights and duties under regulated credit agreements be suspended pending the determination of a reference. Carr & Ors v Formation Group Plc & Ors 19/11/18 (Ch) A group of financial advisers and agents were not permitted to call expert evidence of financial markets practices in relation to an allegation that they had engaged in dishonest assistance and breach of fiduciary duty. The objective test for dishonesty applied and it was for the court not the market that determined what was objectively dishonest. Insurance James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Thirteen Stone, 020 7242 4937 Aspen Underwriting Ltd & Ors v Credit Europe Bank NV 21/11/18 (CA) The lower court judge had been entitled to find that the English court had jurisdiction to entertain a tortious misrepresentation claim brought by the underwriters of a marine insurance policy against a Netherlands bank, but it did not have jurisdiction to hear the underwriters' restitution claim against the bank. Griffin Underwriting ltd v Ion G Varouxakis 28/11/18 (Comm) In a claim by an insurer concerning a defendant director who had allegedly induced his shipowner company to abandon a voyage, the defendant's application challenging jurisdiction was refused where it had been made six months late and it was not appropriate to grant relief from sanctions. W Bockstiegel GMBH & Co v Chilena Consolidada Seguros Generales SA 3/12/18 (Comm) The court continued an anti-suit injunction against a Chilean cargo insurer where there was a real risk that absent the injunction Chilean proceedings would be continued or reinstated in breach of an arbitration clause. Intellectual Property Law Christy Rogers, Ingenuity IP Chambers, 020 7936 4474 Patents Warner-Lambert Co LLC v Generics (UK) Ltd & Anr, SC (Lords Mance JSC, Sumption JSC, Reed DPSC, Hodge JSC, Briggs JSC), 14/11/18 The Supreme Court dismissed an appeal against a decision that certain claims in its pharmaceutical patent were invalid for insufficiency. A cross appeal was allowed, finding certain further claims also invalid for insufficiency. The patent claimed a second medical use, the treatment of pain, for a known compound marketed as pregabalin. The defendants intended to launch a generic product directed to the treatment of epilepsy and anxiety. The patentee alleged that the generic product would be prescribed for the treatment of pain, and it would accordingly infringe the patent. The Supreme Court (certain members dissenting) upheld the decision of the courts below that in second-medical-use patents some reason had to be disclosed giving "plausibility" to an assertion of effectiveness in treatment. Absent this requirement, such patents could be obtained on a purely speculative basis without the need for any research. In the instant case the disclosure in the patent did not provide plausibility of the effectiveness of the drug in the treatment of neuropathic pain. Their Lordships agreed, for different reasons, that had the claims been valid they would not have been infringed. Certain members found that the test for infringement was whether the alleged infringer subjectively intended to target the medical use protected by the patent. Others found that the test was, purely objectively, whether the product, including any labelling or leaflet, was presented as suitable for the patented use. Lord Mance produced an objective test which also allowed for rare cases in which the presentation of the product was not to be taken at face value, and cases in which the generic manufacturer was obliged positively to exclude the patented use. Trade Marks Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks & Anr, CA (Floyd, Henderson, Baker LJJ), 05/12/18 An appeal was dismissed, upholding a decision refusing to delete part of the description of a registered trade mark. Cadbury had registered a mark for chocolate bars, the description stating: "The mark consists of the colour purple ... applied to the whole visible surface, or being the predominant colour applied to the whole visible surface, of the packaging of the goods." Cadbury became aware that the wording rendered the mark liable to revocation for failure to be graphically represented with sufficient certainty or precision. It applied to delete the words in italics from the description. Cadbury contended that, properly construed, the registration was a series of two marks, of which one could be deleted. The court held that the fact that Cadbury had not applied for the registration as a series was not determinative. However, the language of the description led the informed reader to conclude that the various alternatives were parts of a generalised and imprecise definition of a single mark, and not a series. Accordingly, the proposed alteration was prohibited by s.44 of the Trade Marks Act 1994. Easygroup Ltd v Easy Fly Express Ltd & Anr, Ch Div (Arnold J), 21/11/18 The court did not have jurisdiction to hear a trade mark infringement claim concerning the well known EASYJET and "easyFlights" UKTMs and EUTMs: Permission should not have been granted to serve proceedings out of the jurisdiction. The claimant had no real prospect of establishing that the defendants had targeted the EU or UK markets by their use of "EasyFly" signs in their cargo transport business predominantly within Bangladesh. Media & Entertainment John Stables, 5RB, 020 7242 2902 Economou v de Freitas [2018] EWCA Civ 2591, Lewison, Ryder and Sharp LLJ, 21 November 2018 This was an appeal by C from the judgment of Warby J that D had satisfied the defence of publication on a matter of public interest, as provided in section 4 of the Defamation Act 2013. D's daughter had killed herself shortly before she was due to be tried for perverting the course of justice for making a false accusation of rape against C. The daughter suffered from bi-polar disorder. There was an inquest. D pursued a media campaign seeking a broadening of the inquest's terms to include consideration of the role of the CPS in maintaining the prosecution. To that end he issued press releases, that formed the basis of newspaper articles, and gave radio and television interviews. He did not name C but the court below had found sufficient reference to C in certain of the publications for the purposes of the libel action. That the matter D had raised in his campaign was a matter of public interest was not in dispute. The appeal turned on the question of whether D's belief in publishing his statements in the public interest was reasonable; and in that respect concerned issues about the standard to which "citizen journalists" should be held if they seek to rely on the s.4 defence. The Court confirmed that the common law Reynolds defence principles remain relevant to the superseding s.4 defence. Warby J was held to have been correct in interpreting the phrase "the statement complained of" in s.4(2) as meaning the words used rather than the defamatory imputation they conveyed. He had been right to consider what D had meant to say when assessing the reasonableness of his belief. Section 4(2)'s requirement that the court "...have regard to all the circumstances of the case" was held to have been properly applied by the judge below who had considered various matters, including the detail of D's knowledge, role and actions. As to Reynolds and pre-publication conduct, the Court made clear that failure to comply with one or more of the Reynolds factors is not inevitably fatal to the defence. Cases will vary as to the significance of any particular factor. An appropriate balance between the rights engaged would not be struck if the bar of 'reasonable belief' was set too low, or if all those who took part in a particular publication were able to look to the other participants to fulfil what they would otherwise reasonably be expected to do, given their particular role in the process. However, the Court held, the principles applied by Warby J would not lead to that result and, upon applying them, he had been entitled to find that the respondent had reasonably believed publication to be in the public interest. Sean Price v MGN Limited [2018] EWHC 3014 (QB), Warby J, 8 November 2018 D applied for a determination of meaning and for summary judgment or strike out of C's libel claim as an abuse of process. C had been the Chief Constable of Cleveland Police but had been sacked in 2012 following disciplinary proceedings. In 2016 D published in the Daily Mirror three articles that referred to various alleged misdeeds of C while in office and, separately, to allegations that Cleveland police had illegally intercepted the mobile phone records of a Mirror journalist. D argued that references in the articles to the interception of phone records were not presented as having anything to do with C. The judge disagreed, holding that C's contended meanings - in essence, that he was party to the illegal accessing of mobile telephone records - were correct. The basis of D's other applications were that the articles complained of contained the other, separate and distinct, defamatory imputations about the claimant, arising from or connected with his dismissal, and that the publication of those allegations - of which C had not complained - was so destructive of C's reputation that the publication of the interception allegations could not have caused any serious reputational harm. Alternatively, the claim was said to be an abuse of the Court's process, on two bases: (i) because the time and expense of the claim were wholly disproportionate to the minimal damages that might be recovered (Jameel abuse); and/or (ii) C's decision not to complain of the other allegations was a tactical abuse of the law or the Court's procedures. All of D's arguments were rejected for being contrary to principle, to the effect of the relevant statutory provisions and to settled law. Application dismissed. The claim had to proceed to trial. Personal Injury Harriet Wakeman, Temple Garden Chambers, 020 7583 1315 Juliet Wells, Temple Garden Chambers, 020 7583 1315 Tim Kevan, www.timkevan.com Kelly Wallett v Michael Vickers [2018] EWHC 3088 (QB): Wallett v Vickers represents the latest development in the growing seam of caselaw on the illegality defence in the context of road traffic accidents. The Claimant's partner had died in a car crash whilst driving at speed. At first instance, Mr Recorder Kirtley concluded that the Claimant's claim for damages was barred by the principle of ex turpi causa. The Claimant appealed. In giving judgment, Males J considered the case of Gray v Thames Trains Ltd [2009] UKHL 33. It was noted that in Gray, the offence in question had been manslaughter, which was a very serious offence and in that case the question of whether all criminal offences would constitute turpitude had not arisen. Males J stated at §37-38 that: "Similarly in Gray and Henderson, despite the apparently unqualified statements of principle ("you cannot recover for damage which is the consequence of your own criminal act"), the question whether all criminal offences would constitute turpitude did not arise. Both were concerned with manslaughter by diminished responsibility, which on any view is a very serious offence. It requires proof of an intention to kill, albeit an intention which is affected by an abnormality of mental functioning. On any view, therefore, such offences would amount to turpitude for the purpose of the ex turpi causa defence. Towards the other end of the spectrum, careless driving is a criminal offence but nobody would suggest that careless driving by the claimant prevents the recovery of damages (reduced as appropriate on account of contributory negligence) in a road traffic case where both drivers are partly to blame. In such a case the recovery of damages does not offend public notions of the fair distribution of resources and poses no threat to the integrity of the law. On the contrary, the recovery of damages is in accordance with public policy. The claimant is not compensated for the consequence of his own criminal act. Rather, as a result of the reduction for contributory fault, he is compensated only for that part of the damage which the law regards as having been caused by the defendant's negligence." Males J went on to consider the case of McCracken v Smith [2015] EWCA Civ 380. He stated at §43: "In my judgment McCracken is a binding authority that in the absence of a criminal joint enterprise between the claimant and the defendant, dangerous driving by the claimant will not bar a claim pursuant to the ex turpi causa principle. Rather, such a claim is to be determined in accordance with principles of causation (has the conduct of the defendant made a material contribution to the claimant's injuries?) and contributory negligence (should the damages be reduced by reason of the claimant's own fault?). These principles are sufficient to give effect to the requirements of justice and public policy." Males J concluded that the Recorder had been wrong to conclude that a driver who died in a car crash while driving down a dual carriageway at speed had been engaged in a criminal joint enterprise of dangerous driving with a driver of another car which barred a damages claim by the deceased's partner on the grounds of ex turpi causa. Although dangerous driving was a more serious offence than careless driving, it was held that in the absence of a criminal joint enterprise between the Claimant and the Defendant, dangerous driving by a claimant would not bar a claim pursuant to the principle of ex turpi causa. Instead, the claim should be determined using the normal principles of causation and contributory negligence. Half Price for Barristers, Experts, Academics, etc If you are a barrister (in independent practise), a single user expert, an academic, an independent consultant, or other self-employed single user then did you know that you can get an annual subscription to PIBULJ.COM for half of the standard rate? That means for you the cost is just £149+vat per year for full membership of the UK's leading online personal injury journal, giving you access to the latest news and important case opinions from leading personal injury barristers and solicitors, monthly CPD tests, video masterclasses, online book chapters, and a huge archive of content stretching back over 9 years. So what are you waiting for? Click below for more information or to sign-up now. Professional Negligence James Purchas, 4 Pump Court, 020 7842 5555 Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP 2/11/18 (Comm) The court granted an application for additional security for costs. Brayshaw v Partners of Apsley Surgery & Anr. 30/11/18 (QB) The court found a locum at a GP's surgery liable in tort for damages to a patient following religious practices and religious doctrines imposed on the patient through and at the behest of the locum where the patient had developed a phobia. However the partners of the GP surgery were not vicariously liable for the locum's conduct. Property Victoria Seifert, Lamb Chambers, 020 7797 8300 Elizabeth Dwomoh, Lamb Chambers, 020 7797 8300 David Sawtell, Lamb Chambers, 020 7797 8300 The Supreme Court gives us a new test of 'intent' under the Landlord and Tenant Act 1954: S Franses Ltd v The Cavendish Hotel (London) Ltd [2018] UKSC 62 The Supreme Court has handed down its landmark decision on the meaning of 'intention' in grounds F and G of section 30(1) of the Landlord and Tenant Act 1954, changing a test that has been essentially settled since the 1950s. Landlords seeking to obtain possession of a tenancy protected by Part II of the LTA 1954 will now need prove that they would have followed their proposed scheme of construction or redevelopment (under ground F) or occupy the holding for the purposes of their own business (under ground G) even if they did not need to make out the test in order to evict the tenant. The test Tenancies protected by Part II of the LTA 1954 can only be brought to an end in a number of ways prescribed by the Act. For a landlord to secure possession following the end of the contractual term, he or she must establish at least one of the grounds in section 30(1). To satisfy section 30(1)(f), the landlord must show that "on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding". The facts and the appeal The facts in the S Franses Ltd case were especially stark. The landlord's principal witness confirmed that the scheme was "all there is to it." As the landlord's principal witness put it, the third scheme was "designed purely for the purpose of satisfying ground (f)": there was no other economic motive save for obtaining vacant possession. The judge at first instance found that the landlord genuinely intended to carry out the works if they were necessary in order to get rid of the tenant, but that it did not intend to carry out the works if it were not necessary to do so for that purpose. He found that the landlord genuinely intended to carry out the works and that ground (f) was made out. He therefore declined to order a new tenancy. On appeal to the High Court, Jay J agreed, but gave permission for a leap-frog appeal to this court. What did the Supreme Court decide in S Franses Ltd v The Cavendish Hotel (London) Ltd? The two-part test of intention finds its provenance in the Court of Appeal decision in Cunliffe v Goodman [1950] 2 KB 237. Lord Sumption developed the test further, however: he stated at [17] that "This appeal does not, as it seems to me, turn on the landlord's motive or purpose, nor on the objective reasonableness of its proposals. It turns on the nature or quality of the intention that ground (f) requires." He decided that the test of intention in the statutory provisions exists independently of the tenant's statutory claim to a new tenancy. What he styled the "acid test" was "whether the landlord would intend to do the same works if the tenant left voluntarily". A conditional intention (so that the landlord did not intend to do the works if the tenant left voluntarily) was not enough to satisfy ground F. About the author David Sawtell is the co-author, along with Richard Hayes, of 'A Practical Guide to the Landlord and Tenant Act 1954: Commercial Tenancies', published by Law Brief Publishing (http://www.lawbriefpublishing.com/product/lta1954/) and also available at Amazon (https://www.amazon.co.uk/Practical-Guide-Landlord-Tenant-1954/dp/1911035223) and in legal bookshops. Landlord-Law Online information and resources on residential landlord and tenant law. For more information visit www.landlordlaw.co.uk. |
SK Properties (Midland) Ltd v Byrne [2018] UKUT 394 (LC) HHJ Behrens The respondent property owner (B) agreed to sell his property to the appellant company (SKPM). The parties entered into a sale agreement. Clause 1(c) of the agreement provided that SKPM "... shall complete the purchase as soon as their legal and banking formalities' are completed." Delays in completion of the sale occurred which led SKPM to apply to the Land Registry to register a unilateral notice to protect its position under the sale agreement. B subsequently applied to have the notice cancelled. The matter was transferred to the First-tier Tribunal (FTT) for determination. The FTT found in B's favour and ordered cancellation of the notice. The FTT found that clause 1(c) of the sale agreement rendered the whole agreement void for uncertainty. First, it did not define "legal and banking formalities". Second, the clause did not attempt to impose any time limit for the completion of those formalities. Although the lack of definition of "legal and banking formalities" was not fatal, the failure to impose a time limit was. The clause did not impose on SKPM any duty to pursue completion of the formalities whether diligently, within a reasonable period of time or otherwise. The FTT found that it was not possible to imply a term that the formalities would be completed within a reasonable period of time. SKPM appealed. The Upper Tribunal (Lands Chamber) upheld SKPM's appeal and found that the agreement was not void for uncertainty. The sale agreement, or some part of it, would only be void for uncertainty if it was legally or practically impossible to give to the agreement (any sensible content. In the context of a contract for the sale of land, the phrase "legal and banking formalities" should be interpreted as "the steps that needed be taken (a) to put in place finance to fund the purchase and (b) to undertake the normal conveyancing process". A term could be implied into the agreement that SKPM would use its best endeavours to complete the legal and banking formalities as soon as reasonably practicable. Such a term was not inconsistent with the express terms of the agreement. SKPM has a subsisting interest in the property by virtue of the sale agreement and therefore the unilateral notice should not be discharged. Expert Witness Corner We have special advertising rates for expert witnesses. To advertise in this section, please email mail@lawbriefpublishing.com for more details, or telephone 08445 UPDATE (08445 873 283). Clinical Psychology Prof Hugh Koch Adults & children, all PI, employment & sport, nationwide www.cv.hughkoch.com & www.hughkochassociates.co.uk. Psychiatry Dr Gaius Davies Emeritus Consultant Psychiatrist, King's College, Bethlem Royal and Maudsley Hospitals. Reports for PTSD and other stress related disorders and general psychiatric problems. Email: gaius.davies@btopenworld.com. Tel: 020 8650 8764. | You are receiving this message at newsletter@newslettercollector.com because are signed up to newsletters from Law Brief Publishing. If you'd prefer not to receive future editions of this particular newsletter then just click here to unsubscribe. To unsubscribe from all newsletters or to edit your preferences please click here. This bulletin is free of charge and is funded in part by third-party advertisements. The publisher and editorial team make no representations about the products or services offered by any advertisers. Please note that your email address is held and processed in accordance with the General Data Protection Regulation (GDPR). If you have received this email in error or do not wish to receive any future emails then please click the link above to unsubscribe, and do contact us if you have any questions at all. This email and any attachments have been scanned for viruses, but it is the responsibility of the recipient to conduct their own security measures and no responsibility is accepted by the sender for loss or damage arising from the receipt or use of this email. Note also that this email does not constitute advice for the purposes of any individual case, and it cannot be a substitute for specific advice based on the circumstances of any such case. Whilst every care has been taken in the preparation of this document, the authors cannot accept any liability for any loss or damage, whether caused by negligence or otherwise, to any person using this document. This email is published by Law Brief Publishing Limited, 30 The Parks, Minehead, Somerset, TA24 8BT.
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