Latest updates

EAT confirms that removal of outdated contractual entitlement following transfer was not void
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 22 May 2019

The Employment Appeal Tribunal recently upheld a decision that the removal of outdated contractual entitlements following a Transfer of Undertakings (Protection of Employment) (TUPE) transfer was not void, as the sole or principal reason was not the transfer or a reason connected with the transfer. This is a relatively rare example of contractual changes following a TUPE transfer being permissible.

On the right track: developments in light rail
Womble Bond Dickinson (UK) LLP
  • Projects & Procurement
  • United Kingdom
  • 21 May 2019

Given the growing popularity of light rail systems across the globe, operators, passenger transport executives, local authorities and commentators alike are calling for further investment in order to better harness the great opportunities for building on this growth. Developments in this sector have the potential to provide welcome improvements to public transport in the United Kingdom, ease the pressure on congested roads and improve access for many communities.

Disclosure pilot scheme under spotlight: application and privilege
RPC
  • Litigation
  • United Kingdom
  • 21 May 2019

The chancellor of the High Court recently clarified to which cases the disclosure pilot scheme applies. He also provided useful guidance on the extent to which the court should exercise its discretion to inspect allegedly privileged documents under the new regime and emphasised the change in behaviour and culture envisaged under the pilot.

Directors' remuneration – new draft regulations
Squire Patton Boggs
  • Company & Commercial
  • United Kingdom
  • 20 May 2019

The draft Companies (Directors' Remuneration Policy and Directors' Remuneration Report) Regulations 2019 were recently published as part of the drive to encourage long-term shareholder engagement and to strengthen the governance and performance of traded companies. Most of the directors' remuneration reporting requirements inserted by the EU Shareholder Rights Directive II already apply under UK law and the draft regulations will implement most of the requirements that do not currently apply.

Breaking ground: technology in construction
Fenwick Elliott Solicitors
  • Construction
  • United Kingdom
  • 20 May 2019

The continuing development of robotics and AI is a potential game changer for the construction industry and may help to resolve (or at least improve) skills shortages and poor productivity rates. However, this technological future will also bring new risk profiles to construction contracts and additional contractual provisions to deal with matters such as IP rights, data protection, confidentiality, health and safety and cyber risk. Perhaps the real question is how this technology will develop and what its impact will be onsite.

AI and online harms: what does government's white paper mean for industry?
Bird & Bird LLP
  • Tech, Data, Telecoms & Media
  • United Kingdom
  • 17 May 2019

The government recently released the much-anticipated Online Harms White Paper. Jointly authored by the Department of Culture, Media and Sport and the Home Office, the paper sets out the government's proposals to address harms ranging from terrorism and child sexual exploitation to disinformation and harassment. It proposes fundamental changes to internet regulation in the United Kingdom and suggests that, among other technologies, AI may be both a source of the challenges and a means to resolve them.

Pre-transfer dismissal was by reason of transfer and automatically unfair
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 15 May 2019

The Court of Appeal recently upheld a decision that the dismissal of an employee immediately before a Transfer of Undertakings (Protection of Employment) Regulations transfer was automatically unfair because the principal reason had been the transfer. This case underlines that even where an employer believes that it has a non-transfer-related rationale for a dismissal, caution should be exercised where it will occur close to the transfer date.

Novel approach to measuring damages resulting from a breach of warranty
RPC
  • Litigation
  • United Kingdom
  • 14 May 2019

The accepted approach of diminution in the value of a target company was recently challenged in the High Court of Justice. The case concerned the purchase of shares in a bank that had a $14.5 million exposure to Lehman Brothers' bankruptcy. The purchaser sued the seller for damages in that sum, alleging that its failure to provide for the Lehman exposure in the accounts amounted to a breach of warranty.

High Court construes TUPE indemnity
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 08 May 2019

The High Court recently considered whether a Transfer of Undertakings (Protection of Employment) (TUPE) indemnity for employment payments which fell due before the transfer date included sums whose payment dates had not yet crystallised. The case serves as a warning to practitioners when drafting TUPE provisions (eg, in asset purchase or outsourcing agreements).

High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity
RPC
  • Litigation
  • United Kingdom
  • 07 May 2019

The High Court recently dismissed a jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the recast EU Brussels Regulation. This judgment demonstrates that the question of whether a private investor is a consumer for the purposes of regulation remains unclear and will often turn on the facts. With a lack of clarity in the case law, it also demonstrates the need for the issue to be considered at a higher level.

No exceptions to exclusionary rule: Court of Appeal confirms established principle
RPC
  • Litigation
  • United Kingdom
  • 30 April 2019

The Court of Appeal recently reiterated that, while evidence of pre-contractual negotiations can be adduced to demonstrate how a transaction came about or what its commercial aims were, it cannot be adduced to aid the interpretation of the contractual provisions themselves. The case also confirms that the English courts continue to take a doctrinal approach to contractual interpretation.

Takeover Panel: roundup of recent panel statements
Davis Polk & Wardwell LLP
  • Corporate Finance/M&A
  • United Kingdom
  • 24 April 2019

The Takeover Panel recently published a revised version of the Takeover Code to reflect amendments relating to the response statement to its October 2018 consultation on asset valuations and the Financial Conduct Authority's announcement that it will phase out the United Kingdom Listing Authority name. In addition, the panel recently published a rule-making instrument concerning the response statement to its consultation on the United Kingdom's withdrawal from the European Union.

Duty of care can exist between parent company and third parties affected by subsidiaries' actions
RPC
  • Litigation
  • United Kingdom
  • 23 April 2019

A recent Supreme Court decision concerned a mass tort claim and the potential liability of an English parent company for the actions of its foreign subsidiaries. The court found that a duty of care can exist between a parent company and third parties affected by the actions of its subsidiaries, but was reluctant to place limits on the types of case where a parent company might incur a duty of care.

Should fraud unravel all? The Supreme Court thinks so
RPC
  • Litigation
  • United Kingdom
  • 16 April 2019

According to a recent Supreme Court decision, if a claimant applies to have a judgment set aside due to fraud, they need not attempt to uncover that fraud before the judgment, even where it is suspected. The case indicates that fraud should unravel judgments in order to safeguard against injustices. Further, the court has made clear that innocent parties should not be burdened with an obligation to constantly keep their eyes peeled for acts of forgery.

Proprietary estoppel claims – lessons from recent case law
Forsters LLP
  • Private Client & Offshore Services
  • United Kingdom
  • 11 April 2019

Proprietary estoppel claims often arise in a farming and/or family context and 2018 was a bumper year for such claims. No fewer than 12 claims relying on the equitable doctrine came before the High Court over the same number of months (seven of which related to farms or farming businesses). However, this spike in cases did not translate into a high success rate, with only three claimants managing to satisfy the court in relation to the three elements required to establish an estoppel.

Court upholds tribunal's jurisdiction over settlement agreement lacking express arbitration clause
Clifford Chance
  • Arbitration & ADR
  • United Kingdom
  • 11 April 2019

The High Court recently found that a tribunal had jurisdiction over a dispute that arose from a settlement agreement lacking an express arbitration clause. The decision serves as a reminder of the delays and additional costs that may be incurred if an agreement is unclear as to the applicable dispute resolution mechanism. Parties can reduce the risks of such delays and costs by including an express dispute resolution clause in settlement agreements.

Court of Appeal maintains interim springboard injunction in team moves case
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 10 April 2019

A recent Court of Appeal judgment is a helpful reminder of the applicable legal tests in securing an interim springboard injunction. It also identifies several practical factors that may influence the granting of discretionary remedies in the context of a team move and reminds employers facing an injunction application of the risk that the 'truth will out' if they (or their new recruits) present misleading evidence to the court.

Court U-turn in approach to 'out of time' inheritance act claims
Forsters LLP
  • Private Client & Offshore Services
  • United Kingdom
  • 04 April 2019

Shortly after rejecting a claim under the Inheritance (Provision for Family and Dependants) Act outside the statutory six-month time limit, the High Court of Justice allowed a claim to be brought 25 years and nine months after the deadline. As the statutory deadline had passed, the court exercised its discretion in favour of the claimant based on, among other things, the merits of her claim and the fact that refusing the application would leave her with no benefit from the estate and effectively homeless.

English court trumps FBI
RPC
  • Litigation
  • United Kingdom
  • 02 April 2019

In a high-profile acquisition claim, the High Court held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the Federal Bureau of Investigation. The court's comments show clearly the level of scrutiny which will be given to requests or demands made by third parties for the disclosure of documents obtained through ongoing proceedings, no matter the standing of the person or authority that makes it.

Another non-party costs order against a liability insurer
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • 02 April 2019

The High Court recently awarded a non-party costs order against a law firm's professional indemnity insurer under Section 51 of the Senior Courts Act in circumstances where the insurer had effectively relinquished control of the litigation's defence. This decision clarifies that the court's discretion under Section 51 is broad and that an insurer need not exert any active control over an insured's conduct of the proceedings in order to be the subject of an adverse costs order.

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