22/01/2014 – Current Awareness

‘It is largely accepted that English contract law does not acknowledge a general duty to perform in good faith. In support of this proposition most commentators refer to Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, CA, in which Bingham LJ (as he then was) spoke of the lack of any overriding legal principle of good faith, in the following terms:

“In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith. This does not simply mean that they should not deceive each other, a principle which any legal system must recognise; its effect is perhaps most aptly conveyed by such metaphorical colloquialisms as “playing fair,” “coming clean” or “putting one’s cards face upwards on the table.” It is in essence a principle of fair and open dealing… English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness.”’

Full story

Hardwicke Chambers, 14th January 2014

Source: www.hardwicke.co.uk

Habitual Residence – the state of mind of the child – the Supreme Court advances the ‘increasing recognition of children as people with a part to play in their own lives, rather than as passive recipients of their parents’ decision.’ – Sovereign Chambers

Posted January 22nd, 2014 in appeals, children, news, residence orders, Supreme Court by sally

‘In relation to an adolescent child, is the state of mind of the child relevant to whether or not habitual residence has been acquired in the place where the child is living?’

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Sovereign Chambers, 20th January 2014

Source: www.sovereignchambers.co.uk

Obtaining a defendant’s insurance details – Hardwicke Chambers

Posted January 22nd, 2014 in case management, civil procedure rules, cosmetic surgery, insurance, negligence, news by sally

‘In XYZ v Various [2013] EWHC 3648, Mrs Justice Thirlwall is managing group litigation in which nearly 1000 women seek damages from companies running hospitals for supplying them with defective implants manufactured by the French company, PIP, for use in breast implant surgery. Some of the claimants also bring actions against the providers of credit cards pursuant to the Consumer Credit Act 1984 (as amended by the 2006 Act) and some bring actions against the surgeons who carried out the surgery. The total value of the claims is in the region of £13m plus costs on both sides. The court has held a number of case management hearings culminating finally in a timetable leading to trial in October 2014 on three issues in four sample cases in which Transform Medical Group (CS) Ltd (“Transform”) is, effectively, the lead defendant.’

Full story

Hardwicke Chambers, 13th January 2014

Source: www.hardwicke.co.uk

Another one bites the dust – life post Jackson and “Mitchell” – Sovereign Chambers

Posted January 22nd, 2014 in appeals, civil procedure rules, disclosure, news, sanctions by sally

‘This is an important case on the question of the correct approach where there has been default in respect of a sanction imposed by the court under the new “post- Jackson” regime, both in terms of the appropriate structure of applications for relief against sanctions. The Court of Appeal overturned the decision of the deputy high court judge and refused to entertain a second application for relief against sanctions where a previous judge had ordered that the defence and counterclaim be struck out.
The history of litigation and orders is slightly complex but has to be understood.’

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Sovereign Chambers, 20th January 2014

Source: www.sovereignchambers.co.uk

Judge warns jury of wrongful prejudice over defendant’s Muslim face veil – The Guardian

Posted January 22nd, 2014 in evidence, freedom of expression, juries, jury directions, news, religious discrimination by sally

‘A judge warned a jury on Wednesday that it was wrong to be prejudiced against anyone because of their expression of religious faith, as a Muslim defendant prepared to go on trial wearing a full face veil.’

Full story

The Guardian, 22nd January 2014

Source: www.guardian.co.uk

Thank the Lords! – Sovereign Chambers

Posted January 22nd, 2014 in ASBOs, bills, injunctions, news, nuisance, parliament by sally

‘If last Wednesday’s vote in the House of Lords was not a reminder as to why we need a second house to protect us then nothing will be. Many members of the public will not realise just how close this country came to fundamentally damaging the democratic society we live in and abandoning the principle of free speech, whilst simultaneously providing an unwieldy weapon against practically anybody for doing pretty much anything that another person does not like.’

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Sovereign Chambers, 15th January 2014

Source: www.sovereignchambers.co.uk

How long do I have? – Hardwicke Chambers

Posted January 22nd, 2014 in appeals, arbitration, contracts, limitations, news, restitution by sally

‘Until recently it was unclear how long a party who lost in an adjudication, and had to pay money to the winning party, had to bring a subsequent claim for recovery of those monies. The position has recently been resolved by the Court of Appeal in the case of Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2013] EWCA Civ 1541 but the discussion had started earlier with the case of Jim Ennis Construction Ltd v Premier Asphalt Ltd [2009] EWHC 1906 (TCC).’

Full story

Hardwicke Chambers, 15th January 2014

Source: www.hardwicke.co.uk

Law and Democracy – Six Pump Court

Posted January 22nd, 2014 in courts, criminal justice, news by sally

‘The basis of the English criminal law is to protect property. An illustration of this fundamental principle of English jurisprudence was enshrined most notoriously in the Black Act of the eighteenth century which was introduced in an atmosphere of considerable social disquiet by the ruling classes in order to quell the unrest directed at the chattels and property of the ruling classes and which was perceived at that time as a challenge to the then social order.’

Full story (Word)

Six Pump Court, 16th January 2014

Source: www.6pumpcourt.co.uk

Mitchell Part Two: a practical view from the Bar – Littleton Chambers

Posted January 22nd, 2014 in appeals, case management, civil procedure rules, delay, news, sanctions by sally

‘In his monthly column, James Bickford Smith discusses Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624 in which the Court of Appeal, after its decision in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, took further eye-catching steps to impose the new approach to relief from sanctions.’

Full story

Littleton Chambers, 8th January 2014

Source: www.littletonchambers.com

Court’s permission needed to extend time for service of witness statements – Hardwicke Chambers

Posted January 22nd, 2014 in agreements, civil procedure rules, courts, news, service, time limits, witnesses by sally

‘In almost every litigated case the parties usually find themselves needing to vary the dates of some directions. This can be done by way of written agreement between the parties and is allowed by CPR 2.11.’

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Hardwicke Chambers, 22nd January 2014

Source: www.hardwicke.co.uk

“I read it in the newspaper”: The current spate of ancillary relief negligence claims raising near identical section 14A arguments – Hardwicke Chambers

Posted January 22nd, 2014 in financial provision, limitations, negligence, news, pensions, valuation by sally

‘In ancillary relief proceedings, the largest assets are frequently the divorcing couple’s matrimonial home and pension rights. Whilst it is usually straightforward to ascertain the value of the former, accurately achieving this for the latter can be a highly technical exercise. Solicitors’ alleged failure to analyse pension transfer values is the subject of a spate of negligence claims currently being brought by former clients. No case is yet to be reported, but it is expected that a number will be during 2014.’

Full story

Hardwicke Chambers, 13th January 2014

Source: www.hardwicke.co.uk

Some limitations on setting aside vulnerable mortgage transactions – 11 Stone Buildings

Posted January 22nd, 2014 in limitations, mortgages, news, setting aside, undue influence by sally

‘The landmark decision of the House of Lords Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773
described the circumstances which render a lending transaction by a bank vulnerable to a challenge for undue influence and provided guidance to bankers as to which steps they would need to take in order to protect their lending, and any security to be taken, from challenge. Several cases decided since Etridgehave demonstrated the breadth of the scope for challenge where bankers have failed to follow the guidance, while others have highlighted some constraints on effective challenges based upon undue influence. Jeremy Cousins QC discussed this topic at a recent lecture of the Chancery Bar Association and shares his thought in this detailed ‘Insider’.’

Full story

11 Stone Buildings, January 2014

Source: www.11sb.com

Court of Appeal ignores Strasbourg ruling on police detention – BBC News

Posted January 22nd, 2014 in appeals, demonstrations, detention, human rights, news, police by sally

‘The Court of Appeal has backed the police over “pre-emptive” arrests during the 2011 Royal Wedding – and ignored a European Court ruling on the issue.’

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BBC News, 22nd January 2014

Source: www.bbc.co.uk

Recent Statutory Instruments – legislation.gov.uk

Posted January 22nd, 2014 in legislation by sally

The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) (Amendment) Regulations 2014

The Structural Funds (Welsh Ministers) Regulations 2014

Source: www.legislation.gov.uk

Regina (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs – WLR Daily

Posted January 22nd, 2014 in assisting offenders, foreign jurisdictions, government departments, intelligence services, judicial review, law reports, weapons by sally

Regina (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24; [2013] WLR (D) 14

‘The English court would not adjudicate, either as a question of justiciability or as a matter of discretion, on a claim which sought to characterise the actions of United Kingdom officials passing on locational intelligence to officials of the United States of America for use in drone strikes as secondary criminal offences either under domestic criminal law or international humanitarian law, because such relief would necessarily entail a condemnation of the activities of a foreign sovereign state.’

WLR Daily, 20th January 2014

Source: www.iclr.co.uk

Buzzoni and others v Revenue and Customs Comrs – WLR Daily

Posted January 22nd, 2014 in covenants, gifts, inheritance tax, law reports, leases by sally

Buzzoni and others v Revenue and Customs Comrs [2013] EWCA Civ 1684; [2014] WLR (D) 13

‘Whether property disposed of by way of gift was enjoyed to the entire or virtually entire exclusion of any benefit to the donor by contract or otherwise, and whether it constituted property “subject to a reservation” within the meaning of section 102(1)(b) of the Finance Act 1986 for the purposes of inheritance tax under the Inheritance Act 1984, depended not on whether the donor had obtained a benefit from the gifted property but whether the donee’s enjoyment of that property remained exclusive. If the benefit to the donor had no impact on, was irrelevant to and made no or virtually no difference to the donee’s enjoyment, the donee’s enjoyment was to the entire or virtually entire exclusion of any benefit to the donor and, therefore, the gifted property would be an exempt transfer and not subject to inheritance tax.’

WLR Daily, 19th December 2013

Source: www.iclr.co.uk

Ofgem accuses Npower of ‘misleading’ report – BBC News

Posted January 22nd, 2014 in consumer protection, energy, news, reports by sally

‘A report by power supplier Npower, claiming bills will rise due to higher energy distribution costs, has been dismissed by regulator Ofgem as “misleading”.’

Full story

BBC News, 22nd January 2014

Source: www.bbc.co.uk

EVENT: King’s College London – Contract Law and Market Solidarity

Posted January 22nd, 2014 in Forthcoming events by sally

‘The aim of this series is to initiate a dialogue between different areas of private law, between private lawyers and experts in other legal fields, as well as scholars in other disciplines in the humanities and social studies.

We believe that these ‘conversations’ can enrich the research and practice of private law, and shed light on its great contribution to, and influence on, other areas of scholarship and practice inside and outside the law.’

Date: 27th January 2014, 6.15-8.15pm

Location: SW1.18 (Moot Court Room), Somerset House East Wing, London WC2R 2LS

Charge: Free, registration required

More information can be found here.

EVENT: UCL – Social & Legal Philosophy Colloquium: Justice and Feasibility

Posted January 22nd, 2014 in Forthcoming events by sally

‘Speaker: Mary B. Saltonstall Professor & Professor of Ethics and Population Health, Harvard’

Date: 19th March 2014, 4.00-7.00pm

Location: UCL Faculty of Laws, Bentham House, Endsleigh Gardens, London WC1H 0EG

Charge: Free, registration required

More information can be found here.