08/06/2016 – Current Awareness

Sino Channel Asia Ltd v Dana Shipping and Trading Pte Singapore and another – WLR Daily

Posted June 8th, 2016 in arbitration, contracts, jurisdiction, law reports, service, third parties by sally

Sino Channel Asia Ltd v Dana Shipping and Trading Pte Singapore and another [2016] EWHC 1118 (Comm)

‘The charterer engaged a third party company to arrange contracts which would be concluded in the charterer’s name but performed by the third party. Through the third party, the charterer entered into a contract of affreightment with the owner. The principal contact point between the owner and the charterer was a junior employee at the third party company. When a dispute arose the owner appointed an arbitrator and e-mailed their notice of arbitration to the third party’s employee, calling on the charterer to appoint their arbitrator. The charterer having not responded, the owner’s arbitrator, in accordance with the terms of the contract, proceeded as the sole arbitrator and made an award in favour of the owner. The charterer applied, pursuant to section 72(1)(b)(c) of the Arbitration Act 1996, for a declaration that the award had been made without jurisdiction, on the ground that the third party’s employee had not had authority to accept service of notice of commencement of arbitration proceedings on the charterer’s behalf and that service on him had not been in accordance with section 76 of the 1996 Act. The owner contended that the employee had had actual implied authority and/or ostensible authority to receive notice of arbitration on the charterer’s behalf.’

WLR Daily, 20th May 2016

Source: www.iclr.co.uk

Singh v Secretary of State for the Home Department – WLR Daily

Posted June 8th, 2016 in appeals, bias, law reports, professional conduct, tribunals by sally

Singh v Secretary of State for the Home Department [2016] EWCA Civ 492

‘When a party seeks to appeal to the Upper Tribunal on the grounds that there had been bias or misconduct on the part of the First-tier Tribunal, the following guidance should be followed. (1) Any application for permission to appeal, if based (in whole or part) on such a ground, should be closely scrutinised. Such an allegation, if to be sufficient to merit the grant of permission at all, should ordinarily be expected to be properly particularised and appropriately evidenced. (2) If an allegation of bias or misconduct is raised which is adjudged sufficient to merit the grant of permission to appeal then it should be normal practice for the Upper Tribunal thereafter to obtain the written comments of the judge concerned. (3) Such written comments of the judge, where obtained, should be provided to the parties for the purposes of the appeal hearing in the Upper Tribunal. In addition, any such written comments should be retained on the file pending any possible further appeal to the Court of Appeal. (4) There may be some cases where it may be necessary to obtain the tribunal judge’s own note or record of the entire hearing since proceedings in the First-tier Tribunal are not ordinarily recorded and no transcript of the hearing will be available. (5) It will normally be likely to be of assistance to the Upper Tribunal to know what the advocate for the respondent has to say as to what happened or what was said before the First-tier Tribunal. Providing such observations is more likely to help produce a fuller and accurate picture of what actually happened or was said in the First-tier Tribunal. Where the advocate does not have a precise note or recollection, the Upper Tribunal can be told. (6) Whether oral evidence is needed at the hearing of the appeal on the issue of what happened or what was said below should be carefully considered by the parties. (7) It is likely to be important in appeals of this nature for the file to be reviewed and any directions given by an Upper Tribunal judge in good time before the substantive appeal hearing (para 53).’

WLR Daily, 27th May 2016

Source: www.iclr.co.uk

HC Trading Malta Ltd v Tradeland Commodities SL – WLR Daily

Posted June 8th, 2016 in arbitration, contracts, jurisdiction, law reports by sally

HC Trading Malta Ltd v Tradeland Commodities SL [2016] EWHC 1279 (Comm)

‘The parties were in communication in relation to a proposed transaction whereby the defendant would purchase 250,000mt of clinker from the claimant. However, no actual shipments occurred and some months after the last significant communication between the parties, the claimant asserted that there was a binding contract, containing a London arbitration clause, that the defendant was required to perform. The defendant denied that any such contract had been concluded. The claimant made clear its settled intention to make a contractual claim against the defendant in a London arbitration pursuant to the arbitration clause, so that such an arbitration could be viewed as imminent. The defendant, denying the existence of the contract, had no claim of its own against the claimant, and indicated that it would contest jurisdiction once the arbitration proceedings were commenced. The claimant, prior to commencing arbitration proceedings, issued a claim in the High Court by which it sought a declaration that there was a binding arbitration agreement subject to English law and which covered its proposed claims. The defendant applied, inter alia, to have that claim set aside.’

WLR Daily, 2nd June 2016

Source: www.iclr.co.uk

Regina v AXN; Regina v ZAR – WLR Daily

Posted June 8th, 2016 in appeals, confidentiality, criminal justice, disclosure, informers, law reports, police, sentencing by sally

Regina v AXN; Regina v ZAR [2016] EWCA Crim 590

‘Where an offender convicted of a crime has rendered assistance to the police or other law enforcement authorities, the police may provide the court with information regarding the assistance rendered in a confidential letter signed by a senior police officer, known as a “text”, but the obligation of the police to provide a text when requested by the offender is a very limited one. Although the court will always expect the police to inform the court of the fact that the police have made a decision not to provide a text as matter of case management, it is sufficient if the police merely state that they will not provide any information to the court in relation to the offender’s assertions of assistance. The police are not required to give any explanation of their reasons for the decision, or the stage at which they decided not to provide any information. The police need do no more than say that the police will not provide any information to the court. Such a statement to the court can generally be provided by letter and not by text. There may unusually be circumstances where the police would have to reveal in the reply the assertions of the offender that he had provided assistance; in such a case it might therefore be necessary to provide the response in the form of a text. Whether it is provided by letter or text, it must be signed by a senior officer of police (normally a superintendent) or an equivalent senior official in other law enforcement agencies (paras 6, 18, 22).’

WLR Daily, 27th May 2016

Source: www.iclr.co.uk

In re A (A Child) (Baby Relinquished for Adoption: Case Management)

Posted June 8th, 2016 in adoption, carers, case management, children, families, family courts, fostering, grandparents, jurisdiction, law reports, local government by sally

In re A (A Child) (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25

‘A, a baby born in England to Latvian parents, was relinquished at birth for adoption and quickly placed with foster parents who were approved to adopt. On the understanding that there was no one within the extended natural family, either in England or in Latvia, in a position to care for A, and with the consent of the birth parents given in accordance with sections 19 and 20 of the Adoption and Children Act 2002, the local authority proceeded to convert A’s short-term arrangements to an adoptive placement and notified the Latvian central authority of A’s situation. The foster parents, with whom A had lived for much of his life, applied to adopt him. The Latvian central authority, having made its own enquiries of relatives in Latvia, identified the maternal grandmother as a potential long-term carer for A, had completed a favourable preliminary suitability assessment and commissioned a full suitability assessment. The central authority opposed the adoption of A in England and submitted its concerns that the approach of the English courts towards adoption cases placed insufficient weight on the rights of a child to grow up in his inherited culture and was therefore potentially contrary to articles 36 and 37 of the Vienna Convention on Consular Relations 1963 and a breach of articles 8 and 20 of the United Nations Convention on the Rights of the Child 1989. The birth mother, who had deliberately not informed her wider family in Latvia of the proposed adoption, continued to support adoption by the foster parents, maintaining her opinion that an education and upbringing in England would be in A’s best interests and that her mother would find it difficult physically and financially to care for A. At a case management hearing, the children’s guardian appointed for A recommended an adjournment to enable completion of the grandmother’s assessment. In circumstances where the prospective adopters, the birth parents and the local authority all supported the adoption, where factors from the welfare checklist in section 1(4) of the 2002 Act pointed towards adoption, and where a delay in making a decision was likely to prejudice A’s welfare, the issue before the judge was whether he should make an adoption order without having considered the substantial assessment of the suitability of the maternal grandmother in Latvia as A’s long-term carer.’

WLR Daily, 6th May 2016

Source: www.iclr.co.uk

Winterburn and another v Bennett and another – WLR Daily

Posted June 8th, 2016 in appeals, easements, law reports, parking, prescription, rights of way, tribunals by sally

Winterburn and another v Bennett and another [2016] EWCA Civ 482

‘The claimant owners of a fish and chip shop claimed as a result of use over a number of years to have acquired by prescription the right for themselves and others using their premises to park on land comprising part of a car park belonging to the defendants. The defendants’ premises, which were next to the car park, had been used as a club and users of those premises used the car park. The entrance to the car park was adjacent to the claimants’ shop. The claimants had operated the shop from about 1987 or 1988 until 2012. Throughout that time, their suppliers had up to nine times a week pulled off the road into the disputed part of the car park and parked there for long enough to make their deliveries, and their customers had parked on the disputed land while they bought their fish and chips. On the whole that use of part of the car park did not interfere with the s’ operations but over a seven-year period there were 12 to 15 occasions on which the defendants asserted ownership of the disputed land, and, expressly or impliedly, asserted that the claimants and their suppliers and customers had no right to park on it. At all times until 2007 there was a sign attached to the wall of the building on one side of the entranceway to the car park, erected on behalf of the defendants, stating “Private car park. For the use of Club patrons only. By order of the Committee”, and a similar sign in the window of the club premises. The claimants claimed that their right to park, acquired by prescription by “lost modern grant”, had been established by their 20 years’ uninterrupted user “as of right”, namely, without force, without secrecy and without permission. The First-tier Tribunal found that, although the two signs were clearly visible, they were insufficient to prevent the claimants from acquiring the claimed parking rights. The Upper Tribunal allowed the defendants’ appeal, reversing that finding.’

WLR Daily, 25th May 2016

Source: www.iclr.co.uk

EVENT: IALS – Why is legal language so complicated? Legislative drafters and linguists compare notes

Posted June 8th, 2016 in Forthcoming events by sally

‘The last decades have witnessed important innovations in legislative drafting but have we succeeded in producing perfect laws? Just because a bill has passed into law does not mean that its goals have been achieved. Indeed, the quality of legislation may not only be affected by the intrinsic drafting difficulties; the implementation of legislation may be significantly influenced by a range of ‘filtering agents’ at whom legislation is directed and who may constrain, adapt and modify the intentions that form the basis of the legislation approved in the first place. Looking at more ‘scientific’ disciplines, such as linguistics, may be of some help for the legislative drafter who wants to know how a piece of legislation has performed and the extent to which its goals will be achieved.’

Date: 29th June 2016, 2.00-5.30pm

Location: Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR

Charge: Free, registration required

More information can be found here.

EVENT: University of London – 1st Annual Conference, Refugee Law Initiative

Posted June 8th, 2016 in Forthcoming events by sally

‘The inaugural Annual Conference of the Refugee Law Initiative (RLI) will take place from Wednesday 29 June to Friday 1 July 2016 in the elegant setting of the Senate House of the University of London. The chosen theme for this 1st RLI Annual Conference is ‘The Future of Refugee Law?’. Recent years have seen refugee law doctrine moving in innovative new directions, as the discipline reflects deeply on its relationship to the wider field of international law. At the same time, refugee protection faces renewed challenges on the ground in a number of regions, not least in the refugee and displacement-related consequences of humanitarian crises such as Syria. The fifth anniversary of the RLI presents us with a timely opportunity to proactively consider the future of refugee law.’

Date: 29th June – 1st July 2016

Location: University of London

Charge: See website for details

More information can be found here.

Post-Jackson proportionality rule can prevent full recovery of ‘reasonable’ costs, says senior judge – OUT-LAW.com

Posted June 8th, 2016 in civil procedure rules, costs, damages, fees, news, privacy, proportionality by sally

‘The new rules limiting the recovery of the costs of civil court action to a “proportionate” amount may prevent successful parties from recovering costs that would otherwise have been reasonable, a senior costs judge has confirmed.’

Full story

OUT-LAW.com, 7th June 2016

Source: www.out-law.com

Family law at a distance – Speech by Lord Sumption

Posted June 8th, 2016 in appeals, barristers, family courts, judges, jurisdiction, legal profession, news, Supreme Court by sally

Family law at a distance (PDF)

Speech by Lord Sumption

At a Glance Conference 2016, Royal College of Surgeons, 8th June 2016

Source: www.supremecourt.uk

Police force fined £150k after sex offenders info sent to member of public – Local Government Lawyer

Posted June 8th, 2016 in data protection, electronic mail, fines, news, police, sexual offences by sally

‘A police force in Wales has been hit with a £150,000 monetary penalty notice after an officer inadvertently sent an email, containing information that could be used to identify eight sex offenders, to a member of the public.’

Full story

Local Government Lawyer, 8th June 2016

Source: www.localgovernmentlawyer.co.uk

We need full separation from Law Society to police money laundering, SRA tells Treasury – Legal Futures

Posted June 8th, 2016 in consultations, fines, Law Society, money laundering, news, Solicitors Regulation Authority by sally

‘The Solicitors Regulation Authority (SRA) has opened a second front in its campaign for full separation from the Law Society by appealing to the Treasury to intervene over the issue of money laundering.’

Full story

Legal Futures, 7th June 2016

Source: www.legalfutures.co.uk

LGO demands action over backlog of 1,500 planning control cases at council – Local Government Lawyer

Posted June 8th, 2016 in compensation, complaints, enforcement, local government, news, ombudsmen, planning by sally

‘A Local Government Ombudsman investigation has found that the London Borough of Hackney had a backlog of 1,500 planning enforcement cases, some of them 15 years old.’

Full story

Local Government Lawyer, 7th June 2016

Source: www.localgovernmentlawyer.co.uk

Sumption: Legal specialisations are “essentially bogus” – Legal Futures

Posted June 8th, 2016 in appeals, barristers, family courts, judges, jurisdiction, legal profession, news, Supreme Court by sally

‘Legal specialisations are “essentially bogus”, Supreme Court judge Lord Sumption declared today as he urged practitioners to break out of their core areas and learn from other parts of the profession.’

Full story

Legal Futures, 8th June 2016

Source: www.legalfutures.co.uk

Artificial Intelligence and the Law – BBC Law in Action

Posted June 8th, 2016 in artificial intelligence, computer programs, judiciary, legal profession, news by sally

‘Artificial Intelligence has made great advances in recent years, with computer scientists developing cars without drivers, planes without pilots and mobile phones which can double up as a personal assistant. The legal profession is proving to be rich territory in the AI field too.’

Listen

BBC Law in Action, June 2016

Source: www.bbc.co.uk

Filling the void: the Brexit effect on employment law – OUP Blog

Posted June 8th, 2016 in brexit, consent, consultations, contract of employment, EC law, employment, equality, news, redundancy, referendums, sex discrimination, trade unions, transfer of undertakings by sally

‘Having been cast as unnecessary “red tape”, a burden on business, inflexible, uncompetitive and inefficient, it is widely assumed that a sizeable number of domestic employment laws derived from European Law will be in the firing line in the event of a Brexit. In a well-publicised written opinion produced for the TUC, the leading labour law barrister, Michael Ford QC, has provided some support for this assumption. He noted the vulnerability of these EU-derived employment rights and labour laws, and divided and categorised them according to whether a future UK government would be likely to repeal, dilute or preserve them. In this blog, I will probe what might fill any void created by the removal of employment rights rooted in EU law. Surprisingly, the common law would appear to have as significant a role to play as domestic legislation in this context. The potential involvement of the common law is somewhat paradoxical, particularly in light of its perceived ‘undemocratic’ credentials, it being a source of law crafted incrementally by unelected judges.’

Full story

OUP Blog, 7th June 2016

Source: www.blog.oup.com

Immigration advisers using McKenzie Friend status “to dodge regulation” – Legal Futures

Posted June 8th, 2016 in appeals, asylum, immigration, litigants in person, McKenzie friends, news, regulations by sally

‘People are avoiding regulation as immigration advisers by “purportedly acting as McKenzie Friends”, the Office of the Immigration Services Commissioner (OISC) has warned.’

Full story

Legal Futures, 8th June 2016

Source: www.legalfutures.co.uk

Legal highs ban will fail to eradicate spice, warns government adviser – The Guardian

Posted June 8th, 2016 in criminal justice, drug offences, drug trafficking, news, statistics by sally

‘The ban on legal highs will not lead to the disappearance of spice and other synthetic, cannabis-like drugs because they are so profitable to dealers, a senior government drugs adviser has warned.’

Full story

The Guardian, 7th June 2016

Source: www.guardian.co.uk

EU Court rules no jail for illegal migrants – BBC News

Posted June 8th, 2016 in deportation, detention, EC law, immigration, news, time limits by sally

‘Non-EU migrants illegally entering an EU state in the Schengen zone should not face detention on those grounds, says the European Court of Justice.’

Full story

BBC News, 7th June 2016

Source: www.bbc.co.uk

Judge slams ‘disgraceful behaviour’ and armed forces drinking culture as Royal Navy officer is cleared of rape – Daily Telegraph

Posted June 8th, 2016 in alcohol abuse, armed forces, courts martial, judges, news, rape, sexual offences by sally

‘A judge has slammed the “disgraceful behaviour” and drinking culture in the armed forces as a Royal Navy officer was cleared of the rape of a drunken colleague following a training college ball.’

Full story

Daily Telegraph, 7th June 2016

Source: www.telegraph.co.uk