Latest updates

Guidance on factors to be considered in assessment of worldwide freezing orders
RPC
  • Litigation
  • United Kingdom
  • June 19 2018

Freezing orders are a valuable weapon in the arsenal of parties seeking enforcement in England and Wales. However, they come with a heavy responsibility on the part of the applicant. If one gets it wrong, a great deal of time, effort, costs and tactical initiative are likely to be lost. The High Court recently provided helpful guidance as to which factors may be relevant when determining whether a freezing order should be discharged.

New Oil and Gas Authority reports share industry knowledge and plans on technical solutions for MER UK
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • June 18 2018

The Oil and Gas Authority recently released its UK Continental Shelf (UKCS) Technology Insights and Southern North Sea Salting Study reports. The reports focus on current work taking place in the industry to develop technical solutions to maximise economic recovery of UKCS hydrocarbon resources.

Victory House General Partner Ltd v RGB P&C Ltd
Fenwick Elliott Solicitors
  • Construction
  • United Kingdom
  • June 18 2018

An application was recently made to restrain notice being given of a winding-up petition which sought payment of some £820,000 following an adjudicator's decision in respect of goods supplied and services rendered for the development and conversion of Victory House. The adjudicator had rejected Victory House's argument that it was not liable to pay the sum identified in the interim application because the parties had entered into a memorandum of understanding which provided for other payments to be made.

Court finds no contract without parties' signatures
RPC
  • Litigation
  • United Kingdom
  • June 12 2018

In a recent dispute about the existence of a contract, the High Court found that the parties intended to be bound only when all parties had signed. An open-ended duty to negotiate in good faith was void for uncertainty and the claim was struck out. This case is a useful reminder of several principles, including that an obligation to negotiate in good faith must be tightly drafted and time limited in order to be effective.

Court of Appeal rules on arbitrators' duty to disclose
Clifford Chance LLP
  • Arbitration & ADR
  • United Kingdom
  • June 07 2018

The Court of Appeal recently found that there was no appearance of bias where an arbitrator had accepted multiple arbitral appointments from one party to several arbitrations where the subject matter of the arbitrations was the same or overlapping. Nevertheless, the court held that the arbitrator had had a duty in law and as a matter of good practice to disclose issues where there was a real possibility of bias.

Appeal judgment confirms Addison Lee cycle couriers are workers
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • June 06 2018

In the latest decision on employment status in the gig economy, the Employment Appeal Tribunal (EAT) has dismissed Addison Lee's appeal against an employment tribunal decision that its cycle couriers were workers and therefore entitled to holiday pay. The EAT upheld the tribunal's findings that the established practice and expectation of both parties was that the couriers would carry out work as directed, which was sufficient to prove that they were workers under the legal test.

Energy performance of buildings and Brexit: the final cut (for now)
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • June 04 2018

The Council of the European Union has announced the agreement on the final version of the revised Energy Performance of Buildings Directive. The directive will enter into force 20 days after publication in the Official Journal and member states will have 20 months to transpose it. There are several long-tail requirements for which compliance queries will not arise until well after this period. A practical difference will be any surveillance or enforcement and the consultation on a 'green watchdog' in respect of England.

Supreme Court curtails negotiating damages
RPC
  • Litigation
  • United Kingdom
  • May 29 2018

A recent Supreme Court decision is now the leading case on negotiating damages. It has emphasised the compensatory basis of contractual damages and restricted negotiating damages to cases where the obligation breached by the defendant protected an asset with economic value. While the decision offers welcome clarity, it leaves some important questions unanswered.

Failing to enhance pay for shared parental leave may be indirect sex discrimination
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • May 23 2018

The Employment Appeal Tribunal recently indicated that enhancing maternity pay, but not pay for shared parental leave, may give rise to indirect sex discrimination claims by fathers. Indirect discrimination was always expected to prove a much greater challenge to employers paying different rates of pay to women on maternity leave and parents taking shared parental leave. Unfortunately, the tribunal's decision has not resolved this issue.

Unlawful distribution of shareholding: application of Limitation Act clarified
RPC
  • Litigation
  • United Kingdom
  • May 22 2018

In a recent case, the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding. The court acknowledged that Section 21 was primarily aimed at express trustees, and that it was found to be applicable to company directors "by what may fairly be described as a process of analogy".

Cleveland Bridge UK Ltd v Sarens (UK) Ltd
Fenwick Elliott Solicitors
  • Construction
  • United Kingdom
  • May 21 2018

CBUK and Sarens recently sought a determination, following an adjudicator's decision, of a dispute over the terms and interpretation of a subcontract. Sarens had been engaged by CBUK to provide cranes and other equipment for the installation of six bridges along the M6 link road. CBUK had been engaged as subcontractor to Costain under a modified NEC3 contract. The dispute was about what, if anything, CBUK and Sarens had agreed about the provision of liquidated damages.

Deepwater Horizon – multiple arbitrator appointments on same incident
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • May 21 2018

The Court of Appeal has considered the extent to which an arbitrator may, without the parties' knowledge, accept appointments in several matters in relation to the same or overlapping subject matters with only one common party without giving rise to an appearance of bias. As disputes in the oil and gas industry can reverberate through the value chain, and associated insurance, the decision is of particular interest to the sector.

Trademark hearing officer's decision vaporised by High Court
Taylor Wessing
  • Intellectual Property
  • United Kingdom
  • May 21 2018

The High Court has overturned a decision of the registrar of trademarks in which an opposition against an application for a stylised mark featuring the words 'VAPE & CO' was upheld. The opposition was filed by London Vape Company Ltd based on its stylised UK registration featuring the words 'THE vape.co'. The High Court upheld the appeal, noting that "if the only similarity between the respective marks is a common element which has low distinctiveness, that points against there being a likelihood of confusion".

Brexit, chemicals and REACH: five issues to consider now
Burges Salmon LLP
  • Product Regulation & Liability
  • United Kingdom
  • May 17 2018

The chemical and manufacturing industries are still waiting for clear post-Brexit plans for UK chemicals regulation, with exit from the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation a particular concern. The potential for significant business disruption if the United Kingdom and the European Union fail to reach a pragmatic solution on the future of the United Kingdom's participation in REACH poses a number of issues.

Requirement to correct rule – prompt action advised to avoid penalties
Forsters LLP
  • Private Client & Offshore Services
  • United Kingdom
  • May 17 2018

The Finance (No 2) Act 2017 contains provisions requiring the disclosure of historic non-compliance to Her Majesty's Revenue and Customs by September 30 2018 (ie, the requirement to correct rule). This is part of a range of legislation targeting offshore tax evasion. Defences for failing to comply with the requirement to correct are limited and it may be insufficient to have relied on legal or tax advice. Prompt action is required to potentially avoid very significant penalties.

Slots can be traded for value even after insolvency
Vedder Price LLP
  • Aviation
  • United Kingdom
  • May 16 2018

Monarch Airlines Limited's administrators have won an appeal with the Court of Appeal regarding Monarch's rights in and to certain 'slots' at Luton and Gatwick airports after it went into administration. The case is significant, as it reaffirms the value ascribed to slots by airlines and their financiers as rights of the airline and the fact that, as a result, they can be traded for value even after insolvency.

EHRC gets tough on enforcing gender pay gap reporting
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • May 16 2018

The Equality and Human Rights Commission is adopting a rigorous approach to the enforcement of the gender pay gap reporting regime. It recently confirmed in a Freedom of Information Act request that it has sent 1,456 letters to employers that it believes have failed to comply with the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 and indicated that it will be investigating every company that has failed to comply.

Senior noteholder directions: another commercial approach by Financial List
RPC
  • Litigation
  • United Kingdom
  • May 15 2018

In a recent case, the High Court confirmed the validity of a senior noteholder's directions under a note structure governed by the laws of multiple jurisdictions. In doing so, it highlighted the common ground between the London and New York markets with regard to the common law principles of contractual construction and demonstrated the efficiency of the speedy trial procedure in the Financial List.

Gosvenor London Ltd v Aygun Aluminium UK Ltd
Fenwick Elliott Solicitors
  • Construction
  • United Kingdom
  • May 14 2018

After Gosvenor agreed to perform certain cladding works for Aygun, disputes arose and Gosvenor applied to enforce an adjudicator's decision. Aygun accepted that adjudicators' decisions will be enforced by the courts, regardless of errors of fact or law, but alleged fraud on the part of Gosvenor, stating that "a substantial proportion" of the adjudication award had been based on sums which were fraudulently invoiced. However, no allegations of fraud had been raised in the adjudication proceedings.

HMRC publishes guidance on new PILON tax rules, but uncertainty remains
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • May 09 2018

Her Majesty's Revenue and Customs has published guidance on the new rules that require income tax and national insurance contributions to be paid on all payments in lieu of notice from April 6 2018. While the guidance had been eagerly awaited, given the uncertainty over how the rules will operate in practice, a number of questions remain unanswered.

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