03/06/2016 – Current Awareness

Hosking and another v Slaughter and May – WLR Daily

Posted June 3rd, 2016 in administrators, costs, insolvency, law reports by sally

Hosking and another v Slaughter and May [2016] EWCA Civ 474

‘During a company’s administration the administrators employed a firm of solicitors and agreed their fees. The company was wound up and the liquidators were subsequently appointed. Shortly thereafter the administrators approved the solicitors’ final invoice which post-dated the liquidators’ appointment. The liquidators applied to the court for an order for a detailed assessment of the costs agreed between the administrators and the solicitors, pursuant to rule 7.34 of the Insolvency Rules 1986. The registrar concluded that the administrators could agree and pay the fees of the solicitors and there was neither power under rule 7.34 nor inherent jurisdiction for the court to order a detailed assessment of costs. The judge dismissed the liquidators’ appeal against the registrar’s order refusing a detailed assessment of costs but allowed the appeal in respect of the final invoice, concluding that rule 7.34 did not apply to former administrators so the final invoice had not been properly approved and would have to be approved by the liquidators. The liquidators appealed against the judge’s decision not to order a detailed assessment and the solicitors appealed against the order that the final invoice had not been properly approved.’

WLR Daily, 24th May 2016

Source: www.iclr.co.uk

Regina (Shindler and another) v Chancellor of the Duchy of Lancaster and another – WLR Daily

Posted June 3rd, 2016 in domicile, EC law, elections, freedom of movement, law reports, referendums, time limits by sally

Regina (Shindler and another) v Chancellor of the Duchy of Lancaster and another [2016] EWCA Civ 469

‘The claimants were British nationals who, exercising their rights of free movement, had moved to European Union member states in the 1980s and remained living respectively in Italy and Belgium. They were not entitled to vote in the European Union referendum by section 2 of the European Union Referendum Act 2015 since they had last been registered to vote in a United Kingdom election more than 15 years ago. The 2015 Act adopted the franchise for United Kingdom parliamentary elections, including the 15-year rule. The claimants sought judicial review, claiming that the 15-year rule constituted a restriction on their rights of free movement which was not objectively justified, by way of a declaration that section 2 of the 2015 Act was incompatible with their directly effective European Union law rights. Article 50(1) of the EU Treaty provided that any member state could withdraw from the European Union in accordance with its own constitutional arrangements. The Divisional Court granted permission to proceed but refused the claim, holding that (i) section 2 of the 2015 Act fell within the scope of European Union law so that their rights of free movement were in principle engaged; (ii) section 2 was not a restriction on their rights of free movement; (iii) if section 2 were such a restriction, it was objectively justified as a proportionate means of achieving a legitimate objective, namely of testing the strength of a British citizen’s links with the United Kingdom over a significant period of time; and (iv) the claimants were not disentitled to a remedy on account of delay.’

WLR Daily, 20th May 2016

Source: www.iclr.co.uk

Handley and another v Luke Jackson Solicitors (a firm); Lopes v Croydon London Borough Council; Christie Owen & Davies Ltd v Awan and another – WLR Daily

Posted June 3rd, 2016 in appeals, civil procedure rules, costs, county courts, jurisdiction, law reports by sally

Handley and another v Luke Jackson Solicitors (a firm); Lopes v Croydon London Borough Council; Christie Owen & Davies Ltd v Awan and another [2016] EWCA Civ 465

‘Where the County Court has made a decision on appeal from a district judge or deputy district judge the position as to an appeal from the County Court’s decision is as follows. (i) If the County Court has heard the appeal and ruled on the issues determined by the district judge (including the validity or otherwise of the claims, the relief to be granted and the costs of the hearing before the district judge) then, by virtue of article 5 of the Access to Justice Act 1999 (Destination of Appeals) Order 2000, any appeal will lie only to the Court of Appeal. Permission must be sought from the Court of Appeal, pursuant to CPR r 52.13, and the second appeal test, set out in section 55(1) of the Access to Justice Act 1999, will apply. (ii) In respect of the costs of the appeal to the County Court, any appeal will lie to the Court of Appeal, pursuant to article 5 of the 2000 Order, but the second appeal test will not apply. (iii) It would be open to the County Court judge to grant permission to appeal to the Court of Appeal in respect of the costs of the appeal to the County Court and the normal test for permission will apply. It would also be open to the Court of Appeal to grant permission applying the same test. (iv) If there has not been what can properly be regarded as a hearing of the appeal, any appeal (which is almost certainly to be one on costs) is to the High Court judge and the normal test will apply (paras 34, 41–42, 44–47, 51, 52, 54, 55).’

WLR Daily, 24th May 2016

Source: www.iclr.co.uk

Regina (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court – WLR Daily

Posted June 3rd, 2016 in barristers, civil procedure rules, disciplinary procedures, law reports, litigants in person by sally

Regina (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court [2016] EWCA Civ 478

‘The Disciplinary Tribunal of the Council of the Inns of Court, having determined disciplinary proceedings in favour of a non-practising barrister who had represented herself at the hearing, ordered the Bar Standards Board to pay her costs and appointed an assessor to determine the amount. Treating the Civil Procedure Rules as persuasive, the assessor took the view that by reason of her status as a barrister and the fact that she had conducted the proceedings herself, the barrister had established financial loss sufficient to allow recovery of two thirds of the rate which a solicitor would have charged had CPR r 48.6 applied. He therefore assessed her costs in the sum of £27,521·50 for 166 hours of work, a figure not in dispute. The award included the costs of her time at the rate of £120 per hour. The board claimed judicial review of that decision, contending that the barrister was entitled to no more than that to which a litigant in person would have been entitled, and that the expenditure of her time and skill did not amount to financial loss within the meaning of CPR r 48.6(4)(a). The Divisional Court, allowing the claim in part, held that the correct basis of assessing costs was in accordance with regulation 31 of the board’s Disciplinary Tribunals Regulations 2009 as amended, namely, to award such costs as the tribunal thought fit, the Civil Procedure Rules being neither applicable nor persuasive, and the financial loss of a barrister acting in person defending disciplinary proceedings included the expenditure of the barrister’s own professional skill. The court therefore held that the barrister was entitled to the costs represented by her expenditure of professional skill in successfully defending the charges brought against her. The court concluded that an hourly rate of £120 was too high since she had not been practising at the time, and accordingly substituted an award of costs calculated at £60 per hour. The court further ordered the barrister, as an interested party in the proceedings,to pay 60% of the board’s costs of the judicial review proceedings.’

WLR Daily, 11th May 2016

Source: www.iclr.co.uk

In re Zavarco (No 2); Blomqvist v Zavarco plc and another (No 2); Blomqvist v Teoh and others – WLR Daily

Posted June 3rd, 2016 in company directors, company law, estoppel, law reports, shareholders by sally

In re Zavarco (No 2); Blomqvist v Zavarco plc and another (No 2); Blomqvist v Teoh and others [2016] EWHC 1143 (Ch)

‘The shareholder claimed to have purchased a 66·6% share in the company, a United Kingdom holding company of a group operating in South East Asia. Following a substantial fall in the share price the shareholder requested that the directors call a general meeting of the company, which, by section 303 of the Companies Act 2006, they were required to do if they received requests from members representing at least 5% of the paid-up capital of the company. The directors refused to call the general meeting requested, contending that the shareholder’s shares were in fact not paid up. The shareholder served a notice pursuant to section 305 of the 2006 Act, by which a shareholder was entitled to call a meeting if the directors had wrongfully refused to do so. The company subsequently informed the shareholder that it had issued further shares to a Malaysian company reducing his shareholding to 1·17%. The shareholder commenced two actions, one by a petition for a declaration that the notice served by him under section 305 of the 2006 Act was valid and effective and a direction that the general meeting be held, and the other, by a Part 8 claim form for an order rectifying the company’s register of members to delete the additional share issue for want of authorisation.’

WLR Daily, 17th May 2016

Source: www.iclr.co.uk

Timothy Taylor Ltd v Mayfair House Corpn and another – WLR Daily

Posted June 3rd, 2016 in covenants, landlord & tenant, law reports, leases by sally

Timothy Taylor Ltd v Mayfair House Corpn and another [2016] EWHC 1075 (Ch)

‘The tenant occupied the ground and basement floors of a building from which it operated a gallery. The lease contained terms reserving the landlord’s right to build and a covenant for quiet enjoyment. In order to carry out works on the adjoining upper floors of the building, the landlord erected scaffolding, which enveloped the building, restricting access to the tenant’s gallery and giving the impression that it was closed. The works also caused substantial noise in the tenant’s premises. No financial compensation was offered by the landlord to the tenant for the works undertaken.’

WLR Daily, 10th May 2016

Source: www.iclr.co.uk

Regina (S) v Director of Legal Aid Casework – WLR Daily

Posted June 3rd, 2016 in law reports, legal aid, litigants in person by sally

Regina (S) v Director of Legal Aid Casework [2016] EWCA Civ 464

‘The claimant, a Nigerian national who lacked capacity to engage in litigation, applied for exceptional case funding pursuant to section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to assist him in making representations to the Home Office to recognise his position in the United Kingdom. The Director of Legal Aid Casework refused his application but the claimant was subsequently granted funding after he successfully claimed judicial review of the refusal on the ground that the guidance issued by the Lord Chancellor and applied by the Director was unlawful. Notwithstanding that grant, the claimant’s remaining challenge to the manner in which the exceptional case funding scheme was operated, which raised important issues of wider application, proceeded effectively as a test case. The claimant’s case was that the operation of the scheme created an unacceptable risk that individuals would be unable to make an effective application under the scheme and would therefore suffer a breach of their Convention rights or European Union rights. The judge allowed the claim, holding that (i) the manner in which the exceptional case funding scheme was operated meant that in practice the safety net intended to be provided by section 10 to enable individuals who would not otherwise qualify for legal aid funding to present their cases effectively without obvious unfairness was not being provided and (ii) the requirement in regulations 5 and 43 of the Civil Legal Aid (Merits Criteria) Regulations 2013 that cases had to demonstrate an even or better than even prospect of success was unreasonable and the method of rating prospects of success was itself unsatisfactory. Accordingly he granted declarations that the exceptional case funding scheme, the 2013 Regulations and the guidance were unlawful.’

WLR Daily, 20th May 2016

Source: www.iclr.co.uk

New fining powers for UK competition authorities proposed as part of regime reform – OUT-LAW.com

Posted June 3rd, 2016 in competition, fines, news by sally

‘The UK’s competition watchdog could be given new powers to fine businesses that breach the formal commitments or undertakings they give to bring a competition investigation to a close under plans put forward by the government.’

Full story

OUT-LAW.com, 2nd June 2016

Source: www.out-law.com

‘Equal merit’ diversity rule applied in 14 judicial appointments – Law Society’s Gazette

Posted June 3rd, 2016 in diversity, judicial appointments commission, judiciary, news, statistics by sally

‘The Judicial Appointments Commission (JAC) selected candidates for the specific purpose of increasing diversity in 14 recommendations, according to the commission’s latest statistics bulletin published today.’

Full story

Law Society’s Gazette, 2nd June 2016

Source: www.lawgazette.co.uk

Deepcut: Inside the chaotic, demoralised and highly-sexualised barracks where four young recruits died – Daily Telegraph

Posted June 3rd, 2016 in armed forces, inquests, news by sally

‘When Private Cheryl James was preparing to move from Leconfield to Deepcut Barracks for the next stage of her Army training, an instructor gave her and her friends ominous advice.’

Full story

Daily Telegraph, 3rd June 2016

Source: www.telegraph.co.uk

Court of Appeal says exceptional funding regime is lawful – Legal Aid Handbook

Posted June 3rd, 2016 in legal aid, litigants in person, news by sally

‘The Court of Appeal has given judgment in the case of Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464, the Director’s appeal against the judgment of Collins J in the High Court that the exceptional funding regime was inherently unlawful.’

Full story

Legal Aid Handbook, 3rd June 2016

Source: www.legalaidhandbook.com

End of LASPO exemption for insolvency “will lead to unscrupulous behaviour” – Litigation Futures

Posted June 3rd, 2016 in company directors, fees, insolvency, insurance, news by sally

‘Most insolvency practitioners and lawyers believe the end of the exemption for insolvency litigation from the abolition of recoverable success fees and insurance premiums in conditional fee cases will lead to “unscrupulous or illegal behaviour” by company directors, a survey has found.’

Full story

Litigation Futures, 3rd June 2016

Source: www.litigationfutures.co.uk

Council to refund care payments to 63 people after Ombudsman report – Local Government Lawyer

Posted June 3rd, 2016 in community care, elderly, local government, news, ombudsmen, repayment by sally

‘Solihull Metropolitan Borough Council has agreed to refund more than 60 older people if they are found to have been overcharged for care, following an investigation by the Local Government Ombudsman.’

Full story

Local Government Lawyer, 2nd June 2016

Source: www.localgovernmentlawyer.co.uk

Digital legal services for low-income clients “close to tipping point” – Legal Futures

Posted June 3rd, 2016 in electronic filing, legal aid, legal services, news by sally

‘The digital delivery of legal services in England and Wales to people formerly entitled to legal aid could be at the cusp of a “tipping point”, according to Professor Roger Smith, the leading researcher into online law.’

Full story

Legal Futures, 3rd June 2016

Source: www.legalfutures.co.uk

Bulk data collection not ‘inherently incompatible’ with right to privacy, say UK law makers – OUT-LAW.com

Posted June 3rd, 2016 in data protection, intelligence services, news, privacy, select committees by sally

‘Giving the intelligence and security services a right to collect data about citizens in bulk is not “inherently incompatible” with people’s right to privacy, a UK parliamentary committee has said.’

Full story

OUT-LAW.com, 2nd June 2016

Source: www.out-law.com

Families call for ‘Hillsborough Law’ at home secretary meeting – BBC News

Posted June 3rd, 2016 in inquests, inquiries, news, police, professional conduct, sport by sally

‘Relatives of the 96 people who died at Hillsborough have told the home secretary they want a “Hillsborough Law” to compel public officials to tell the truth at inquiries.’

Full story

BBC News, 2nd June 2016

Source: www.bbc.co.uk

Academy trust faces legal challenge over treatment of disabled pupils – The Guardian

Posted June 3rd, 2016 in disability discrimination, disabled persons, news, school children, special educational needs by sally

‘Parents of children with special educational needs and disabilities are taking legal action against an academy trust for proposing to bus their children from a well-performing school to a worse alternative because of limited resources.’

Full story

The Guardian, 2nd June 2016

Source: www.guardian.co.uk