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Round-up of recent litigation cases - November 2019

We've brought together a round-up of some recent litigation cases that may be of interest to you.

Miranda Whiteley

Thu, 14 Nov 2019 15:58:38 GMT+00:00

Pre-action disclosure applications: a risky business?

An application for pre-action disclosure can be a strategic means of flushing out information from the other side to support your claim. That is, if your gamble pays off.

Eve Rodgers

Thu, 14 Nov 2019 15:45:52 GMT+00:00

Finding a landing place for electronic signatures

The courts are becoming increasingly relaxed about how people sign their contracts. We’ve seen a variety of examples in recent years – a name typed into the bottom of an email, clicking an “I accept” box on a website and identifying information in the header of a SWIFT message. These reflect the realities of modern business, where most communications take place by telephone or electronically, and the people involved are often under time pressure to get things done.

Greg Gibson

Thu, 14 Nov 2019 15:24:43 GMT+00:00

Phones, lies and videotape – the changing face of litigation

Secret recordings of one kind or another have been with us for decades but the ubiquitous smartphone promises to revolutionise the way in which we determine disputes. Two recent cases illustrate the point.

Miranda Whiteley

Thu, 14 Nov 2019 15:18:33 GMT+00:00

Some recent life sciences IP case law...

We have summarised some recent key case law that has happened in the past few months that directly affect the life sciences sector.

James Fry

Wed, 13 Nov 2019 10:41:26 GMT+00:00

Here we go again… Charities and campaigning during elections

For the third time in five years the country is heading to the polls. But are charities any better informed about what campaigning activities they can and cannot undertake during the election period than previously?

Neil Burton

Fri, 8 Nov 2019 15:59:34 GMT+00:00

Court approval for the distribution of trust money and payment of remuneration and expenses

The Company was a debt management firm that advised individuals on their financial problems. Its assistance included implementing debt management plans between the Company and its clients under which clients made monthly payments. The Company then paid the client’s creditors and placed a balance in a pool for negotiation of full and final settlements with creditors.

Jamie Wheatley

Thu, 31 Oct 2019 10:45:33 GMT+00:00

Powers of interim managers when an investment scheme goes awry

ICC Judge Barber appointed interim managers in relation to four companies (the Companies) within a group run by Gavin Woodhouse (Woodhouse), including North Powerhouse Developments Limited (NPD), pending the outcome of administration applications issued by creditors.

Catherine Noble

Thu, 31 Oct 2019 10:39:31 GMT+00:00

Landlords’ CVA challenge fails, save for the ability to forfeit

The High Court has recently handed down an important judgment considering the so-called “retail” company voluntary arrangement (CVA) wherein the CVA purports to vary a retailer’s obligations to its landlords often while the retailer’s obligations to its other creditors remain unaffected.

Morgan Bowen

Thu, 31 Oct 2019 10:35:09 GMT+00:00

When is a bank’s relationship with its customer unfair?

Section 140A Consumer Credit Act 1974 allows the Court to reduce or discharge any sum payable under a credit agreement if it finds the relationship is unfair to the debtor. That can be in relation to not only the terms of the agreement, but the way it is enforced as well.

Lino Di Lorenzo

Thu, 31 Oct 2019 10:29:07 GMT+00:00

English Court accepts jurisdiction for an order sanctioning schemes of arrangement for debtors, including a Dutch entity, and where most of the creditors were based outside the UK

The applicant companies, one Dutch, one English, were part of the same logistics group operating in the automotive and technology industries. The group was significantly over-leveraged and was unlikely to continue to operate without restructuring its debt. The debts had arisen in relation to a parent credit facility (PCF) amounting to approximately US$680 million and pursuant to a notes indenture of approximately US$225 million.

Jacob Walker

Thu, 31 Oct 2019 10:23:29 GMT+00:00

Court sanctions another scheme of arrangement for foreign based group

The Judge was asked to sanction the convening of creditors meetings to consider schemes of arrangement for English and Dutch incorporated companies, which he was prepared to do.

Neil Smyth

Thu, 31 Oct 2019 10:18:10 GMT+00:00

Equality and Human Rights Commission challenges universities on racial harassment

Whilst much of the recent focus on harassment in the higher education sector has been on preventing and tackling sexual harassment, racial harassment is also under the spotlight. A recent inquiry and report from the Equality and Human Rights Commission encourages institutions to look more closely at incidents of racial harassment and their responses, and recommends that senior management should take a lead to embed a culture where racial harassment is not tolerated.

Robert Renfree

Thu, 31 Oct 2019 10:04:14 GMT+00:00

Does the FOS’ new funding proposal bring us closer to creating a fair FOS?

On 2 July 2019, the Financial Ombudsman Service (FOS) opened a new consultation. It would like to see the proportion of the income it receives from case fees re-balanced in favour of a higher levy.

Virginia Hickley

Mon, 28 Oct 2019 14:29:34 GMT+00:00

When might rectification reduce a professional’s exposure?

As all of us working in the world of professional indemnity insurance are acutely aware, mistakes are inevitable. No-one, however careful, is immune.

Claire Roake

Mon, 28 Oct 2019 14:25:51 GMT+00:00

Appointed Representatives – the Good, the Bad and the Ugly?

The recent Court of Appeal decision in Anderson v Sense Network provides clarity on a network’s responsibility for their Appointed Representative’s actions. This article considers the case and issues which may arise from it.

Matthew Wilson

Mon, 28 Oct 2019 14:20:27 GMT+00:00

You never know who’s listening – the CMA’s latest enforcement activity

Hot on the heels of our In-house In Focus programme this month focusing on competition law, the Competition and Markets Authority (or CMA) has announced a total of £36 million fines for three construction firms’ breach of competition law. 

Simon Elsegood

Thu, 24 Oct 2019 10:54:56 GMT+00:00

Will the UK be free to subsidise business after Brexit?

Earlier this month, the World Trade Organisation ruled that the USA may impose up to almost USD 7.5 billion of “countermeasures” against trade with the European Union. This is the latest stage of a long running dispute between the USA and the EU over alleged subsidies made to Boeing and Airbus respectively.

Simon Elsegood

Thu, 24 Oct 2019 10:46:09 GMT+00:00

New Court of Appeal guidance on QOCS in mixed claims and warns of “tacking on” abuse

The Court of Appeal has clarified the qualified one way costs shifting (QOCS) regime and the protection it offers Claimants can only apply to those claims concerning damages for personal injuries.

Jagjit Virdi

Mon, 21 Oct 2019 13:26:51 GMT+00:00

Refusing “manifestly unfounded” or “excessive” data subject access requests

Individuals are entitled under UK and EU data protection legislation to request a copy of their “personal data” from an organisation which holds it.

Alison Williams

Tue, 15 Oct 2019 15:15:06 GMT+00:00

Immigration and a no-deal Brexit

The Johnson Government’s initial statements on immigration policy created some confusion, but it is now clear that EU nationals should be free to come to the UK to live and work until the end of 2020, even if there is a no deal Brexit on 31 October.

Alex Russell

Tue, 8 Oct 2019 12:55:20 GMT+00:00

Foundation Trusts: a capital idea

Right from the outset, the NHS has been hesitant about the financial freedoms conferred on Foundation Trusts. Where next for this flavour of FT autonomy?

Tim Winn

Tue, 8 Oct 2019 08:25:32 GMT+00:00

Supreme Court decision - 16/17 year olds, parents and consent to confinement

We were very pleased, having represented the NHS Trust in the first phase of this matter, to read the Supreme Court’s judgment.

Jill Mason

Mon, 7 Oct 2019 15:49:16 GMT+00:00

Transforming patient care and experience through digital technology

It is widely acknowledged that digital technology has the power to transform healthcare across the world. One of the most talked about transformational tools is artificial intelligence (AI). The potential of AI to transform business processes and service delivery is undeniable.

Charlotte Lewis

Mon, 7 Oct 2019 14:55:31 GMT+00:00

A no-deal Brexit and EU trademarks and designs

Despite recent attempts by the opposition parties to block a no-deal Brexit, and the resumption of negotiations with the EU on a revised deal, a Halloween no-deal Brexit remains a real possibility. However, in such an event owners of EU trademarks and designs can at least be certain as to how these rights will be protected.

Richard Plaistowe

Thu, 3 Oct 2019 16:03:59 GMT+00:00

Cell and gene therapy - current legal issues

An exciting array of new therapeutic approaches based on cell therapy and genetic modification are reaching the clinic. Driven by the twin forces of unmet clinical need and powerful technological advances like CRISPR-Cas9, these advanced new therapies offer real promise for the future.

Stephanie Caird

Thu, 3 Oct 2019 13:48:03 GMT+00:00

Accessibility regulations for public sector websites

As our lives become increasingly digital, the need to ensure that online services are accessible for all has moved up the agenda

Sebastian Allen-Johnstone

Wed, 2 Oct 2019 16:05:44 GMT+00:00

Will Brexit happen on 31 October?

It is far from certain that Boris Johnson will be able to deliver on his promise to bring the UK out of the EU on 31 October “no ifs, no buts”. But as we explain, there are some relative legal certainties amid all the confusion.

Charles Pigott

Wed, 2 Oct 2019 13:59:14 GMT+00:00

Reform of the NHS procurement rules: Long-Term Plan, or long-term pipe dream?

The ten-year NHS Long Term Plan sets out some ambitious reform proposals for NHS procurement. But with Brexit dominating parliamentary time and sapping resource, how likely are these proposals to materialise? And when?

Christopher Brennan

Tue, 1 Oct 2019 12:19:04 GMT+00:00

Two sides of the system: primary care networks and integrated care systems

As primary care networks and integrated care systems develop, Rob Day considers how the relationship between PCNs and ICSs might evolve together given both are nascent structures with different priorities and ways of working. He also highlights emerging challenges for commissioners.

Rob Day

Wed, 25 Sep 2019 14:26:12 GMT+00:00

Kark and beyond: what it means for leadership in the NHS

Eight months on from the publication of Tom Kark QC’s review into the Fit and Proper Persons Test – the regulation requirement that came into force in 2014 requiring trusts to make sure all directors are suitable and fit to undertake the responsibilities of their role – we reflect on the review, where we are now and what the future holds.

Jog Hundle

Wed, 25 Sep 2019 14:21:10 GMT+00:00

Assessing the impact of a no-deal Brexit on litigation

Disputes have always created uncertainty and disruption for businesses but the absence of a deal on the UK’s exit from the European Union would mean less clarity for litigants over how disputes can be resolved effectively.

Lino Di Lorenzo

Wed, 25 Sep 2019 08:55:49 GMT+00:00

Doing business in the Netherlands

Commercial Contracts: English Approach vs the Dutch Approach to contract interpretation. Ruth Andrews from Mills & Reeve and Sonja Kruisinga from Dutch firm Van Benthem & Keulen explain...

Ruth Andrew

Wed, 25 Sep 2019 07:51:16 GMT+00:00

Admit nothing!

In 1999 the Respondent (Mr Ezair) had entered into a contract of sale of his business, including a number of Properties, to a company that he controlled (“N”). The Properties were not in fact transferred to N to avoid paying stamp duty, but N could call for a transfer on 7 days’ notice.

Jacob Walker

Tue, 24 Sep 2019 09:20:50 GMT+00:00

Contract validly terminated where one party struck off, even where it is subsequently restored

The general effect of an administrative restoration is that the company is deemed to have continued in existence as if it had not been dissolved or struck from the Register (Section 1028(1) of the Companies Act 2006 [CA2006]). However, this does not have universal effect, especially as against the actions of third parties.

Catherine Noble

Tue, 24 Sep 2019 09:13:39 GMT+00:00

Is a statutory demand a demand triggering liability under a guarantee?

Section 268 Insolvency Act sets out the definition of “inability to pay” which is a condition to be met to start bankruptcy proceedings.

Jamie Wheatley

Tue, 24 Sep 2019 08:59:24 GMT+00:00

Second court application to annul a bankruptcy order

The applicant’s second application to annul a bankruptcy order was an abuse of process; the applicant should have applied to court for relief from sanction instead. This application would have been refused, notwithstanding the abuse of process, in light of the fact that the bankruptcy order was founded upon statutory debts, that were due and owing, and there was no evidence that such debts could be repaid.

Jastinder Samra

Tue, 24 Sep 2019 08:50:06 GMT+00:00

Conflicts, Bank Panel Appointments and a contested jurisdiction application

An attempt to challenge the jurisdiction of the English Court in proceedings issued against a Scottish Law Firm recently failed.

Lino Di Lorenzo

Tue, 24 Sep 2019 08:42:40 GMT+00:00

Data protection and a “no deal” Brexit

This briefing analyses some potential issues relating to data protection and Brexit, particularly with reference to a possible “no deal” scenario. A “no deal” scenario is one where the UK leaves the EU and becomes a “third country” at 11pm GMT on 31 October 2019 without a Withdrawal Agreement and framework for a future relationship in place between the UK and the EU.

Robert Renfree

Mon, 23 Sep 2019 15:01:52 GMT+00:00

Availability of common law defences to preference claims

A recent Privy Council decision on a Cayman Island liquidation has given useful guidance on the availability of common law defences to antecedent transaction claims.

Neil Smyth

Mon, 23 Sep 2019 14:21:45 GMT+00:00

Artificial intelligence and financial services – building trust

Data has always been important in financial transactions. The earliest forms of writing involved keeping records of grain, sheep and cattle entering and leaving farms and warehouses in ancient Sumeria. More recently, the financial services sector has an established history of using statistical methods to make decisions about individuals – credit-scoring and data-based insurance pricing, for example.

Paul Knight

Wed, 11 Sep 2019 10:52:27 GMT+00:00