Law Brief Update, January 2019 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 Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWCA Civ 2695 This appeal case considered in what circumstances an allegation of fraud could lead to a successful stay of enforcement of an adjudication award. Gosvenor was contracted to perform cladding for the installation of a facade at a hotel in Southampton. Aygun was the sub-contractor. Disputes arose between the parties, which Gosvenor referred to adjudication. The adjudicator gave his decision in favour of Gosvenor. At the enforcement hearing, Aygun alleged fraud on the part of Gosvenor and claimed that if the award was enforced Gosvenor would dissipate its assets. At first instance, the Judge determined that certain allegations of fraud could have been raised during the adjudication, but were not and could not be used to resist enforcement. However, he also determined that Gosvenor's conduct was suspect enough to justify granting a stay and set down an additional category to those listed in the case of Wimbledon v Vago [2005] EWHC 1086 (TCC) that: "If the evidence demonstrates that there is a real risk that any judgment would go unsatisfied by reason of the claimant organising its financial affairs with the purpose of dissipating or disposing of the adjudication sum so that it would not be available to be repaid, then this would also justify the grant of a stay". Gosvenor appealed to the Court of Appeal. The appeal was dismissed. When an assessment of the risk of dissipation had not been undertaken at the adjudication stage, the court had to consider all the relevant evidence. It did not matter whether the evidence could have been raised in the adjudication. If evidence relating to dissipation had been rejected by the adjudicator - then that was a material consideration, but it was not decisive. The judge's additional category for grant of stay was approved. Here, the material was sufficient to infer a real risk of dissipation. The lack of an explanation from Gosvenor gave rise to an adverse inference. Gosvenor's accounts were suspect; they had suddenly discovered that a sum almost exactly equivalent to the judgment was now said to be owed to other creditors. The judge's exercise of discretion could not be said to be unreasonable. 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 NJE v PTE [2018] EWHC 3570 (QB) This claim arose from a road traffic accident where the Claimant had sustained a serious brain injury. He entered into a CFA in August 2012 with his solicitors, which therefore predated the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. At the time of entering into the CFA agreement, the Defendant had admitted liability. Quantum was disputed on the basis that there was a difference between the medical experts and the Defendant argued that given that the Claimant had had four previous head injuries, this injury made little difference in any event. The CFA provided for a 25% success fee if the claim settled more than three months before trial and a 100% success fee if it settled within three months of the trial. The claim settled 2.5 months before trial. At the costs assessment, it was conceded by the Claimant's solicitors that they could not justify a 100% success fee and instead, they sought 67%. The District Judge assessed the success fee at 65%. The appeal was heard by Mr Justice Martin Spencer and Master Leonard (sitting as an assessor). On appeal, the Defendant argued that the risks had not been properly analysed, relying on C v W [2008] EWCA Civ 1459. The Claimant argued that the substantial uplift was justified given the risk in establishing causation. It was held that following C v W, a 100% success fee could never be justified where liability had been admitted and there had been no Part 36 offer. It was noted that there were essentially two fundamental risks which had to be borne in mind: 1. The risk arising from the timing of a Part 36 offer; and 2. The risk of rejecting that offer and failing to better it at trial. It was stated at paragraph 37 that: "It seems to me that if a solicitor could show that he had at least attempted to make a judgment of those matters and had devised his success fee accordingly, a District Judge would be slow to say that the solicitor had got it wrong and that the success fee should not be allowed." Mr Justice Martin Spencer concluded that the decision of the District Judge was plainly wrong and must be overturned. He considered that the District Judge made no attempt to analyse the risks which should reasonably have been taken into account when the success fee was agreed. He concluded that 20% was the appropriate success fee which was then reduced to 12.5% by the then provisions of CPR 45.19. CIVIL PROCEDURE The New York Laser Clinic v Naturastudios (Extempore judgment, 21/12/2018) In this case, the Claimant alleged that it had bought laser hair removal machines following nine statements made by the Defendant which were either untrue or negligently made. The Claimant alleged that the machines did not work and as a result that they had suffered loss. The claim was initially brought in tort on the basis of negligent misstatement. A matter of weeks before the trial date, the Claimant brought a very late application to amend its particulars of claim to change the cause of action to a claim for breach of warranty. It also sought to increase its claim for damages from £400,000 to £4.3 million. The Claimant argued that it was merely recharacterizing its case and that it would not have its case dealt with justly if the amendments were not permitted. The Defendant resisted the application to amend on the basis that the application was made very late and would delay the resolution of the matter. It was also argued that it would be potentially unfair to permit the amendment as the Defendant would have wanted to inspect its machines in light of the new cause of action and this was no longer possible as they were out of service. The amendment was allowed. It was held that if the Claimant was not permitted to make the amendments, it would be seriously prejudiced and that was not outweighed by any prejudice that the Defendant might suffer. In relation to the Defendant's argument that it could no longer inspect the machines, it was held that the state of the machines had always been in issue and that the defence put forward would not have been different had the claim been initially pleaded in terms of the amended particulars of claim. Wirsol Energy Ltd v Toucan Energy Holdings (Extempore judgment, 06/12/2018) In this matter, Waksman J held that a Claimant was entitled to its costs leading up to the withdrawal of a summary judgment application as it had been reasonable to make the application on the basis of the original three grounds of defence, before they were withdrawn and replaced with a new defence. In terms of the chronology of this case, on 16 October 2018 the Defendant withdrew its existing three grounds of defence and raised a new defence. On 26 November 2018 the Claimant withdrew its summary judgment application. It was held that the question to consider was, whether the summary judgment application should ever have been made. Waksman J concluded that the original summary judgment application was reasonably made and as such, the Claimant was entitled to its costs up to and including 16 October 2018. Thereafter, costs were reserved. 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 J v K, [2019] EWCA Civ 5 Not knowing about the EAT's 10Mb email limit is a satisfactory explanation for late filing of an appeal, in circumstance where the Appellant had not received the official guidance informing him of the limit. The Appellant had never received the usual covering letter with his judgment, which provided a link to a document called "The Judgment". That document contained a link to another guide on appealing to the Eat, which stated that the EAT servers cannot receive emails over 10Mb in size. The Appellant never saw this guidance as he had not received the covering letter. J's email containing his notice of appeal and other documents was sent 5 minutes before the deadline and was rejected as it was over 10Mb. He was able to resend in multiple emails with smaller attachments an hour after time expired. He was refused an extension of time and appealed to the Court of Appeal. Lord Justice Underhill, rejecting an argument that leaving it until the last minute meant that the EAT should refuse to extend time said: "[W]hat is peculiar about the present case is that the obstacle here was not...something extraneous to the EAT such as documents going astray in the post, or a traffic accident delaying the appellant's arrival at the EAT, or a computer failure at his or her end. Rather, the problem was the limited capacity of the EAT's own system (insufficiently notified to the Appellant)...It is as if the Appellant had arrived at the EAT at 3.55 p.m. on the last day with the documents fully ready to serve but had been unable to deliver them because the doors or letterbox were jammed or everyone was on the street because of a fire alarm. It is inconceivable that in such a case an extension could fairly be refused, even though the problem would have been avoided if he had come sooner." He also went on to decide that where the EAT finds that an appeal was lodged late, "wholly or in substantial part" due to "mental ill-health", that will normally require an extension of time. Such a finding will usually require some form of medical evidence. Had the Appellant failed on the ground relating to the server limit, he would have dismissed the appeal on the second ground as there was evidence that, despite the Appellant's ill-health, he had been capable of litigating throughout the period. Financial Services Law James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Three Stone, 020 7242 4937 Munroe K Ltd & Anr v Bank of Scotland Plc 20/12/18 (Comm) A bank was entitled to summary judgment on limitation reasons in respect of part of a claim against it where it was alleged that the bank should have disclosed to its customers that it had undertaken a potential future exposure analysis undertaken at the time of the sale of the swaps. On a true analysis of the cause of action on which the Claimants relied, the bank's alleged failure was an omission to advise or inform the Claimants of their potential liability to the Bank on the Swaps when they were sold in 2006 and 2008. The potential future exposure calculation was only one means of advising or information the Claimants of their potential liability. By 2009 the Claimants knew they had a significant actual liability and they had not been advised of the same. Mason & Anr v Godiva Mortgages Ltd 30/11/18 (Ch) A lender had not breached any common law, contractual or statutory duty when granting a mortgage to a husband and wife which they had been unable to repay. It had no duty to advise on the suitability or prudence of the mortgage requested by the customers. Financial Conduct Authority v Da Vinci Invest Ltd & Ors 10/12/18 (Ch) Although the facts were unusual the FCA was not entitled to recover the costs of its claim following the FCA's discontinuance of proceedings against a defendant law firm. There was no evidence of unreasonable conduct on the part of the law firm which could provide a good reason to depart from the presumption under CPR 39.6 that when a claimant discontinued proceedings the defendant should recover its costs. OJSC International Bank of Azerbaijan v Sberbank of Russia & Ors 18/12/18 (CA) Where a foreign bank had resumed trading after a restructuring, the Cross-Border Insolvency Regulations 2006 did not permit the court to continue indefinitely a stay of the claims of the bank's English creditors so as to defeat their rights under English law. To grant such relief would be inconsistent with the procedural role of the Model Law incorporated in the 2006 Regulations. FCA Consultation on recovering costs of regulating securitisation repositories CP19/1 From 1 January 2019 when the Securitisation Regulation came into effect, firms wishing to establish a securitisation repository are able to apply to be regulated by the European Securities and Markets Authority. When the UK leaves the EU, the expectation is that the FCA will become the relevant regulatory authority in the UK and that legislation will be implemented by the Treasury for the FCA to be able to recover fees from such entities. The FCA is consulting on its fee recovery proposals. Comments are sought by 11 February 2019. FCA Consultation on Brexit and contractual continuity CP19/2 In March 2018 the UK Government and the European Commission agreed as part of the draft withdrawal agreement the terms of an implementation period set to start on 29 March 2019 and to last until 31 December 2020 during which time EU law and consumer rights and protections would continue to apply in the UK. However the withdrawal agreement is subject to approval by the UK Parliament. If it is not approved and no other political arrangement is agreed from 29 March 2019 the UK would become a 'third-country' and EEA-based firms might need to seek authorisation in the UK to continue to access the UK market. In CP18/29 and CP 18/36 the FCA consulted on Handbook rules in relation to the Temporary Permissions Regime (TPR) for inbound EEA firms which has been established by the EEA Passporting Rights (Amendment, etc. and Transitional Provisions) (EU Exit) Regulations 2018 (the TPR Regulations) and other relevant regulations. The TPR will enable EEA firms to continue their activities in the UK for a limited period after Brexit. The government has also published draft legislation to reduce the risk of harm associated with an abrupt loss of permission on exit day. The Financial Services Contracts Regime (FSCR) Regulations will allow firms to fulfil existing contractual obligations in the UK for a limited period of time even if they are outside the TPR following the UK's withdrawal from the EU. The FSCR is available for firms with pre-existing contracts in the UK that would require a permission to service which do not submit a notification to enter into the TPR or are unsuccessful in securing or do not apply for full UK authorisation through the TPR route. Unlike the TPR, the FSCR will not allow firms to undertake any new business in the UK. The FCA is consulting on the rules that will apply to firms in the FSCR under supervised run-off basis or a contractual run-off basis. Comments are sought by 29 January 2019. Insurance James Purchas, 4 Pump Court, 020 7842 5555 Dr Sandradee Joseph-Urquhart, Thirteen Stone, 020 7242 4937 Catlin Syndicate Ltd & Anr v Weyerhauser Co 21/12/18 (Comm) An excess insurance policy provided for arbitration in London under the Arbitration Act 1996 and the insurance underwriter was granted an anti-suit injunction restraining proceedings in Washington. In the matter of Prudential Assurance Co Ltd 11/12/18 (Ch) The court sanctioned a transfer of the European insurance business of Prudential to its Irish subsidiary. The transfer was driven by commercial considerations and the need to ensure that policies could continue to be serviced after Brexit. The court was satisfied that despite the differing financial strength of the entities that transferring policyholders would not be adversely affected by the transfer. Midnight Marine Limited & Anr v Thomas Miller Speciality Underwriting 12/12/18 (Comm) At an oral hearing following the dismissal on the papers of a challenge to an award under s. 68 of the Arbitration Act 1996, the court gave guidance as to the approach to be adopted for such renewed hearings unless special circumstances militated a different approach. Young v Bennett & Acromas Insurance Co Ltd 21/12/18 (QB) The provision of motor vehicle liability insurance is one of the listed activities (among others). If an insurer in that position were to fail, then a claim would need to be made in the first instance to the relevant compensation scheme in Gibraltar, which would be declined, and would then need to be pursued with the FSCS in the UK. Intellectual Property Law Christy Rogers, Ingenuity IP Chambers, 020 7936 4474 Patents Glaxo Group Ltd & Ors v Vectura Ltd, Ch Div (Arnold J), 13/12/18 The defendant's five European patents concerning pharmaceutical compositions for inhalation were invalid for insufficiency. The claimants' process was an obvious development of a process disclosed in the prior art. The claimants were granted an Arrow declaration protecting their process, and the products obtained from their process, from claims of infringement. Trade Marks Pathway IP SARL v Easygroup Ltd, CH Div (Henry Carr J), 21/12/18 An appeal was dismissed, upholding the revocation of two trade marks for non-use. Pathway was the proprietor of the registrations in respect of the sign "easyoffice" for "provision of office facilities" and "rental of office equipment" in class 35. The specifications were sufficiently clear and precise for their ordinary and natural meaning to be ascertained without reference to the class number. The hearing officer had erred in excluding certain services from the specification because those services were listed within classes other than 35 in the Nice Classification. However, even if all the services relied on by the proprietor were included in the specification, the proprietor had still failed to provide evidence of genuine use in the relevant period. The proprietor's application to adduce fresh evidence on appeal was dismissed. Glaxo Wellcome UK Ltd & Anr v Sandoz Ltd & Ors, Ch Div (Chief Master Marsh), 30/11/18 An order was made permitting the second claimant to use, in parallel proceedings in Belgium, 43 specified documents which had been disclosed by the defendants in the course of the UK action for passing off relating to an inhaler product. The documents were a tiny proportion of the 75,000 documents disclosed by the defendants in the UK proceedings. In the Belgian courts the power to order disclosure was very limited but the documents would be admissible. The documents were relevant to the Belgian claim, the application was not oppressive or an abuse of process and the balance of justice was firmly in favour of allowing the collateral use. Media & Entertainment John Stables, 5RB, 020 7242 2902 Tinkler v Ferguson and others [2018] EWHC 3563 (QB), Nicklin J, 17 December 2018 C brought an action in libel and malicious falsehood against D1 and four other defendants. All the parties were or had been either executive or non-executive directors of the Stobart Group Ltd ("Stobart"). The claim arose from an announcement made on the London Stock Exchange's Regulatory News Service ("RNS") by Stobart. The announcement made various statements about the company and the forthcoming re-election of D1 including about C's opposition to D1's re-election and C's disagreements with the board of the company. C argued that the announcement was defamatory as meaning, in summary, that he had acted in breach of his duties as a director and had done so for selfish and self-interested reasons to protect his own position, following his history of improper conduct and poor corporate governance. The Ds applied to the Court for an order that the issues of meaning and whether the words complained of made allegations of fact or were expressions of opinion be tried as preliminary issues. The judge held there to be three meanings, only one of which - that (in summary) C had been disruptive - was defamatory at common law, applying the test in Thornton, and was opinion. That meaning was not seriously defamatory and therefore did not without more reach the threshold of 'serious harm' required by s1(1) of the Defamation Act 2013. Were he to continue with his libel claim C would need to have to take on the burden of establishing, by evidence, the s.1 requirement of serious harm. So far as the context of the RNS was concerned, Nicklin J held that the fact of statements being contained in an RNS announcement did not prevent them from being seen as expressions of opinion; and that although statements from a company's board in such an announcement may appear to come from an "authoritative source", the source would equally be clearly perceived from the context as being partisan. In respect of malicious falsehood, it was not clear, and the court did not rule, as to what effect the preliminary trial of meaning had on 'available meanings' for the purposes of that head of claim (the single meaning rule not applying to malicious falsehood). Even so, the court set out an available meaning, part of which was opinion and therefore would require C to prove as false opinion, as per Euromoney v Aviation News [2013] EWHC 1505 at [103]. Tinkler v Ferguson and others [2018] EWHC 3563 (QB), Nicklin J, 17 December 2018 C brought an action in libel and malicious falsehood against D1 and four other defendants. All the parties were or had been either executive or non-executive directors of the Stobart Group Ltd ("Stobart"). The claim arose from an announcement made on the London Stock Exchange's Regulatory News Service ("RNS") by Stobart. The announcement made various statements about the company and the forthcoming re-election of D1 including about C's opposition to D1's re-election and C's disagreements with the board of the company. C argued that the announcement was defamatory as meaning, in summary, that he had acted in breach of his duties as a director and had done so for selfish and self-interested reasons to protect his own position, following his history of improper conduct and poor corporate governance. The Ds applied to the Court for an order that the issues of meaning and whether the words complained of made allegations of fact or were expressions of opinion be tried as preliminary issues. The judge held there to be three meanings, only one of which - that (in summary) C had been disruptive - was defamatory at common law, applying the test in Thornton, and was opinion. That meaning was not seriously defamatory and therefore did not without more reach the threshold of 'serious harm' required by s1(1) of the Defamation Act 2013. Were he to continue with his libel claim C would need to have to take on the burden of establishing, by evidence, the s.1 requirement of serious harm. So far as the context of the RNS was concerned, Nicklin J held that the fact of statements being contained in an RNS announcement did not prevent them from being seen as expressions of opinion; and that although statements from a company's board in such an announcement may appear to come from an "authoritative source", the source would equally be clearly perceived from the context as being partisan. In respect of malicious falsehood, it was not clear, and the court did not rule, as to what effect the preliminary trial of meaning had on 'available meanings' for the purposes of that head of claim (the single meaning rule not applying to malicious falsehood). Even so, the court set out an available meaning, part of which was opinion and therefore would require C to prove as false opinion, as per Euromoney v Aviation News [2013] EWHC 1505 at [103]. Nugent and another v Willers [2019] UKPC 1, Lady Hale, Lord Kerr, Lady Black, Lord Briggs, Lord Kitchin, 16 January 2019 R (the Claimant) sued in libel in respect of a letter sent by the As (the Defendants) to HMRC Isle of Man ("IoM") in October 2009. R only became aware of the letter 4 years later after having made a data protection subject access request. The claim was therefore on its face out of time: the relevant IoM law was essentially similar to that of England and Wales, with a limitation period for defamation of 1 year but with provision for its disapplication. At first instance the Deemster (IoM judge) excluded limitation. This was upheld on appeal in the IoM. The As appealed to the Privy Council. The question before the Judicial Committee was the proper interpretation of the word "delay" in s.30A of the Isle of Man Limitation Act 1984. Appeal dismissed. The Committee concluded that the courts below had, on the facts of the case, been reasonable in considering the delay of greatest relevance to have been that after R had become aware of the material facts. Personal Injury Harriet Wakeman, Temple Garden Chambers, 020 7583 1315 Juliet Wells, Temple Garden Chambers, 020 7583 1315 Tim Kevan, www.timkevan.com Young v (1) Bennett (2) Acromas Insurance Co Ltd [2018] EWHC 3555 (QB) In this case Master McCloud considered the meaning of the words "reasonably secure" in s.2(3) of the Damages Act 1996 (requiring the court to be satisfied that the continuity of a periodical payment will be "reasonably secure" before making a Periodical Payment Order, or "PPO"). The Claimant had been seriously injured in a road traffic accident in England, liability for which had been entered against the First Defendant. The parties had come to an agreement which provided for the First Defendant's insurer, Acromas Insurance Co Ltd ("Acromas"), to make periodic payments to the Claimant. It thus fell to Master McCloud to consider whether to approve the PPO sought by the parties, pursuant to s.2 of the Damages Act 1996. Acromas was an insurer based in Gibraltar but was entitled to offer motor liability insurance in the UK (including, in this case, to the First Defendant) as a "passported-in" firm regulated in another country in the EEA. Under current legislation, although Acromas is regulated by the relevant regulator in Gibraltar rather than by the Prudential Regulation Authority ("PRA") in the UK, the services it provides are protected by the PRA's Financial Services Compensation Scheme ("FSCS"). Any PPOs to which Acromas is subject thus attract enhanced protection under s.4 of the Damages Act 1996 (meaning that if Acromas were to fail, 100% of the PPO would be recoverable by the Claimant from the PRA). All this meant that, as matters stood, the PPO proposed by the parties fell within s.2(4)(b) of the Damages Act 1996, which provides as follows: "For the purpose of subsection (3) the continuity of payment under an order is reasonably secure if-- (a) it is protected by a guarantee given under section 6 of or the Schedule to this Act, (b) it is protected by a scheme under section 213 of the Financial Services and Markets Act 2000 (compensation) (whether or not as modified by section 4 of this Act) (c) the source of payment is a government or health service body." However, Master McCloud considered that her analysis could not simply end there. She had to consider whether the UK's intended exit from the EU on 29 March 2019 might mean that, although the proposed PPO presently fell within s.2(4)(b), it might not do so in the near future (since the rules governing the FSCS might be amended to exclude services offered by "passported-in" companies such as Acromas, and almost certainly would be in the event that the UK left the EU with a transitional or other arrangement in place). The PPO sought could not fall within s.2(4)(a) or (c), since Acromas was not protected by a guarantee under s.6 of the Damages Act 1996, nor was it a government or health service body. Perhaps unsurprisingly, given the speculative nature of the future risk facing the proposed PPO, the Master was satisfied that continuity of payment was "reasonably secure": there was always an inherent risk that future legislation might mean a proposed PPO being considered by the court would not, at some future date, be protected by the FSCS; there was no indication that Acromas was at any risk of financial failure, and if FSCS protection were removed as a result of the Brexit process, the Claimant could return to court to capitalise the value of the periodic payments if he saw fit; and if all else failed the Claimant could look to the MIB to satisfy the judgment entered against Acromas. It is notable that the court held that the mere fact that a proposed PPO fell within s.2(4)(a)-(c) of the Damages Act 1996 at the time of judgment was not necessarily sufficient to satisfy s.2(3), even though the literal interpretation of s.2 is that this would be sufficient. Further, although the Master was considering s.2(3) in the particular context of Brexit, and specifically the fact that the FSCS might no longer avail the Claimant after the UK's now-looming exit date, the factors which led her to conclude that continuity of the periodical payments would be "reasonably secure" are of wider application. For example, the nature and degree of the risk that the proposed PPO might fall out of s.2(4) will be important - here, it was a speculative risk that the ambit of the FSCS might change, but a court might see matters differently if there was clear evidence that a guarantee under s.6 of the Damages Act 1996 was intended to be revoked. Further, fall-back options will be important - for example, the possibility of proceeding against the MIB, which will doubtless be an option in many cases where a PPO is being considered. XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 In this case, a negligent delay in diagnosing the Claimant (a woman) with cervical cancer had both deprived her of the opportunity to have fertility-saving treatment, and left her with permanent bladder, bowel and vaginal dysfunction. It had been her ambition to have at least four children, and she sought to recover the costs of entering into commercial surrogacy arrangements in California (where commercial surrogacy was legal), or the expenses associated with entering into voluntary surrogacy arrangements in the UK (where voluntary surrogacy was legal, but commercial surrogacy was not), to enable her to have four children (up to two of whom could be conceived using her own cryopreserved eggs, and at least two of whom would need to be conceived using donor eggs). Following Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) [2001] EWCA Civ 1010, the judge at first instance refused to award the costs of entering into commercial surrogacy arrangements in California, thus limiting the Claimant's options to voluntary surrogacy in the UK, on the basis that it would be contrary to public policy to award damages to enable the Claimant to do something that would be illegal if done here. He further refused to award the expenses of conceiving four children, limiting the award to the expenses associated with conceiving the two children that could be produced from the Claimant's own eggs, on the basis that the loss suffered by her was the inability to have "her" child, not "a" child and the use of donor eggs would therefore not be restorative of that loss: Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) applied. The Court of Appeal rejected the trial judge's reasoning on both counts, holding that Briody v St Helens and Knowsley AHA (Claim for Damages and Costs) no longer represented the law. The costs of commercial surrogacy arrangements in California were recoverable, since it was not contrary to any UK statute: s.2 of the Surrogacy Arrangements Act 1985 was aimed at criminalising for-profit surrogacy businesses, in that it prohibited the brokering of commercial surrogacy arrangements; it was not aimed at criminalising would-be parents or surrogates, even if they did one of the acts specific in s.2(1); in any event, s.2 did not have extra-territorial effect and it could not be said that it was illegal for a British citizen to enter into a commercial surrogacy arrangement abroad, even for the purposes of rearing a family in the UK. Further, considering the underlying purpose of the Surrogacy Arrangements Act 1985, which was now fairly limited, the Claimant's proposal could not be said to be contrary to public morals. Societal views on the acceptability of paying a surrogate parent had moved on, so there was nothing sufficient to justify refusing the award sought on grounds of public policy. As to the costs of entering into surrogacy arrangements (whether commercial or voluntary) for four children as opposed to two, these were also recoverable. The distinction between surrogacy using the Claimant's own egg, and using a donor egg, was wrong and artificial. The loss to the Claimant was not limited to the loss of being able to carry and give birth to children that were genetically hers, it was also the loss of the opportunity to raise the family she had intended to raise. The award of damages could not restore her completely to her pre-tort position (in most serious cases of personal injury, no award of damages could); but it could place her "as nearly as may be" in that position, by enabling her to raise the number of children she had wished to (even though she could no longer personally carry and give birth to her children, or be genetically related to all of them). It is to be noted that the reasonableness or otherwise of the Claimant wishing to raise four children (as opposed to some lesser number) was not argued by the Defendant, and the Court of Appeal declined to comment on it. 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 XX v Whittington Hospital NHS Trust 19/12/18 (CA) The Court of Appeal considered whether public policy operated as a bar to recovery of damages for the costs of commercial surrogacy arrangements in the United States in the light of the approach to public policy clarified in Patel v Mirza and current social attitudes. Ellis v Heart of England NHS Foundation Trust & Ors 20/12/18 (QB) The Court decided, pursuant to s.33 of the Limitation Act 1980, that it was just and equitable to allow the claimant's claim against the third defendant (a general practitioner) to proceed despite the fact that the claim was seven months outside of the limitation period. Property Victoria Seifert, Lamb Chambers, 020 7797 8300 Elizabeth Dwomoh, Lamb Chambers, 020 7797 8300 David Sawtell, Lamb Chambers, 020 7797 8300 Antoine v Barclays Bank UK plc [2018] EWCA Civ 2846 If a court order is fraudulently obtained so that it is irregular and subsequently set aside, what is the effect on the registration of a land transaction made by that order: should the Land Registry be rectified as if the order had never been made, or is the order treated in the same way as a voidable disposition? That was the question faced by the Court of Appeal, which developed the issue following its decision in NRAM Ltd v Evans [2017] EWCA Civ 1013; [2018] 1 WLR 639. In this case, the relevant property was owned by Mr Joseph, who died in 1996. Letters of administration were granted to his son, Mr Antoine. A Mr Taylor obtained an order in his favour in 2007, which provided that in default of payment of a 'mortgage debt' he was entitled to be registered as the proprietor of the freehold, which in due course he was. Mr Taylor then obtained a loan from a mortgage company. Mr Antoine had the 2007 order set aside and sought a declaration that the Register be altered by deleting the charge in favour of the mortgage company. He was unsuccessful, both at first instance and on appeal. A vesting order is a disposition by operation of law and is treated as a registrable disposition. Once the registration requirements have been satisfied, the entry of a person in the Register as a proprietor of the legal estate is conclusive as to title. Mr Antoine's argument was that the registration was a 'mistake' for the purpose of Schedule 4 paragraph 2(1)(a) of the Land Registration Act 2002. The legislation does not define the term 'mistake', but the point was considered in the NRAM case. There it was considered (in the context of a voidable transaction) that if a change in the register is correct at the time it is made, it cannot be called a mistake for the purpose of the legislation. In the present case, the Registrar was under a duty to enter Mr Taylor upon the Register pursuant to the 2007 order. Registration on the basis of a valid court order (albeit subsequently set aside) was akin to the position in relation to a voidable transaction: the order was valid until it was set aside. Landlord-Law Online information and resources on residential landlord and tenant law. For more information visit www.landlordlaw.co.uk. |
(1) LM HOMES LTD (2) JT EMORE & FE EMORE (3) DALVIR KAUR v QUEEN COURT FREEHOLD CO LTD [2018] UKUT 367 (LC), Martin Rodger QC The Respondent, a nominee purchaser, sought to acquire the freehold of a building under enfranchisement provisions of the Leasehold Reform Housing and Urban Development Act 1993 ("the Act"). The Respondent also sought to acquire the leasehold interests of the common parts of the building; namely the basement, subsoil and airspace, from the Appellants. As a preliminary issue the First-tier Tribunal (FTT) found that it had jurisdiction to determine the terms of acquisition of the basement, subsoil and airspace. Further, those parts fell within the definition of "common parts" under s.101 of the Act and the Respondent was entitled to acquire the leasehold interests in the same as they were reasonably necessary for the management of the building. The Appellants appealed. The Upper Tribunal (Lands Chamber) (UT) dismissed the appeal. The UT held that pursuant to s.24 of the Act, the FTT retained jurisdiction to determine the terms of acquisition for so long as there remained any dispute over the terms on which the acquisition was to proceed. A proper construction of s.13(11)(a) of the Act only involved no more than reading the words "until a binding contract is entered into" as encompassing both the plural and the singular. When considering whether an area was a common part or not, it was necessary to have regard to the function the area served. If the purpose of a room was to accommodate service installations for the benefit of the whole building that was sufficient to render it a common part. The basement was a common part as it housed the service installations which benefited the whole building. The acquisition of the leasehold interest in the basement by the Respondent was reasonably necessary for the management of the building. The subsoil beneath a building was not ordinarily considered part of the building. It was, however, a common part because it was part "of the exterior" of the building in light of the extended definition of "common parts" under s.101 of the Act. Acquisition of the subsoil was reasonably necessary for the tenant's management of the ground on which the building stood. Lastly, the airspace could be considered as part of the exterior of the building and fell within the definition of "common parts". The airspace provided access to the roof. The proper management of the "airspace" entailed its retention as a means of access to the structure of the building to enable inspection and repair when necessary. 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.
|
|