Latest updates

Employer NICs on termination payments delayed again
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 12 December 2018

The government's plan to make termination payments in excess of £30,000 subject to employer national insurance contributions has been delayed for a second time and will now take effect from April 2020. Initially this change was expected to be introduced from April 2018; however, the Autumn 2017 Budget announced that it would take effect from April 2019. The further delay is welcome news for employers as it will help to keep the costs of settlement payments down for another 12 months.

Guidance on contractual sanctions clauses in commercial maritime agreements
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 12 December 2018

The High Court recently considered the wording "exposure to sanctions" and ruled that the underwriters of a marine insurance policy could not rely on that wording to avoid a claim on the basis of a "risk of exposure" to the US-Iran sanctions. Rather, for underwriters to do so, there would need to be an actual prohibition on paying the claim in question. This latest judgment deals with a number of key points for drafting effective sanctions exclusion clauses in commercial maritime agreements.

When will courts grant retrospective permission for disclosed documents to be used outside main litigation?
RPC
  • Litigation
  • United Kingdom
  • 11 December 2018

The High Court recently considered applications for retrospective permission to make collateral use of documents disclosed under a pre-action disclosure order where there had been a breach of the implied undertaking as to the use of disclosed documents. Although retrospective permission may be given, an application for permission should not be used to circumvent the usual procedure for obtaining consent to collateral use of documents.

Listing sovereign-controlled companies in the United Kingdom
  • Capital Markets
  • United Kingdom
  • 11 December 2018

The listing regime for the United Kingdom's Official List is divided into premium and standard listing segments. For admittance to the premium listing segment, an issuer must meet higher UK-specific standards that are intended to provide additional investor protection and promote shareholder confidence. The UK Financial Conduct Authority recently introduced a new category, but issuers have yet to avail themselves of the new regime.

Three strikes and you're out – bank's duty to make inquiries of suspicious transactions
Allen & Overy LLP
  • Banking
  • United Kingdom
  • 07 December 2018

A first-instance court recently considered the extent to which a bank's duty of care owed to its customers, co-existing in contract and tort, requires the bank to make inquiries of suspicious transactions in their bank accounts. The court found in favour of the bank on the basis of expiry of the relevant limitation period. This article focuses on the court's discussion, by way of obiter, of the bank's duty of care owed to its customers where suspicious transactions occur.

Brexit and UK consumer law
Burges Salmon LLP
  • Product Regulation & Liability
  • United Kingdom
  • 06 December 2018

The Department for Business, Energy and Industrial Strategy recently published draft regulations to amend legislation that enforce laws protecting consumers' rights in the United Kingdom. The draft regulations will be effective after exit day and demonstrate the government's approach to ensure that current legislation due to EU membership continues to be operative after Brexit and that UK consumers will be no worse off, while removing the direct influence and jurisdiction of EU member state enforcement bodies.

Offshore income gains and not-so-protected settlements: unwelcome announcement from HMRC
Forsters LLP
  • Private Client & Offshore Services
  • United Kingdom
  • 06 December 2018

Her Majesty's Revenue and Customs (HMRC) recently surprised many with a statement that the government does not intend to remedy a defect in recently introduced legislation relating to the tax treatment of non-resident protected settlements. The defect means that gains realised by non-resident trustees on the disposal of offshore funds that are not registered with HMRC as having "reporting status" will be subject to income tax as they arise once the settlor is deemed domiciled in the United Kingdom.

Court backs recruitment agency seeking to enforce non-solicitation and non-dealing clauses against former employee
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 05 December 2018

The High Court has awarded an interim injunction to Berry Recruitment Limited to prevent a former employee from soliciting and dealing with its clients and candidates. This case reinforces the fact that, in the right circumstances, recruitment businesses can enforce post-termination restrictions against employees without the trouble and expense of a full hearing.

Court of Appeal decision confirms that Article IV(5) of Hague Rules does not apply to bulk and liquid cargoes
Wikborg Rein
  • Shipping & Transport
  • United Kingdom
  • 05 December 2018

A recent Court of Appeal decision concerned a claim by charterers against disponent owners in respect of contaminated fish oil in bulk carried on board a tanker. The owners accepted liability for the damaged cargo, but argued that they were entitled to limit their liability under Article IV(5) of the Hague Rules. However, the court confirmed that Article IV(5) does not apply to bulk and liquid cargoes; therefore, a carrier cannot limit liability for such cargoes under the Hague Rules.

Challenging judgments allegedly obtained by fraud
RPC
  • Litigation
  • United Kingdom
  • 04 December 2018

The Court of Appeal has dismissed an application to strike out a claim for abuse of process on the basis of Summers v Fairclough in circumstances where final judgment had already been handed down. There are already established methods of challenging judgments allegedly obtained by fraud, and these should be utilised instead.

Supreme Court rules on pregabalin patent
Taylor Wessing
  • Intellectual Property
  • United Kingdom
  • 03 December 2018

The Supreme Court recently handed down its judgment in the Warner-Lambert v Generics (UK) (Mylan) case concerning the validity and infringement of a patent claiming the use of pregabalin for treating neuropathic pain. The key issues which the court had to resolve were the tests for infringement of a second medical use claim and the test for plausibility of a claim such that it is sufficient.

OPRED consults on new civil penalties for illegal oil and gas-related activity
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • 03 December 2018

The Department for Energy and Industrial Strategy and the Offshore Petroleum Regulator for Environment and Decommissioning recently launched a consultation on the draft guidance to accompany the Offshore Environmental Civil Sanctions Regulations 2018. The overarching message of the new penalties regime is that the processes and outcomes of enforcement with regard to offshore companies engaged in illegal oil and gas-related activity will change considerably.

Some lessons in drafting for privilege claims
RPC
  • Litigation
  • United Kingdom
  • 27 November 2018

With privilege remaining a hot topic, and with the recent SFO v ENRC decision still fresh in many legal professionals' minds, another judgment on legal advice privilege has been handed down – this time with a lesson for solicitors drafting supporting witness statements. It is of crucial importance to ensure that the utmost care is taken when making a claim to privilege, not least because the opposing party will usually have no choice other than to rely on what it is told.

Cat among the pigeons: new approach for procurement of development agreements?
Womble Bond Dickinson (UK) LLP
  • Projects & Procurement
  • United Kingdom
  • 27 November 2018

The Court of Appeal recently handed down its long-awaited judgment in Faraday Development Ltd v West Berkshire District Council. Overturning a fully reasoned first-instance judgment, the court deemed a development agreement containing contingent obligations on the developer to carry out development to be a 'public works contract' as defined in the public procurement rules. The decision has important potential ramifications for public and private development projects.

Company held liable for managing director's violent conduct
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • 21 November 2018

The Court of Appeal has ruled that a company was vicariously liable for the violent conduct of its managing director in physically attacking one of his employees at a Christmas party. The decision confirms that employers can be vicariously liable for actions taking place outside the normal employer-employee environment, such as an off-duty misuse of authority by someone in a senior position.

New IPO process in practice: emerging trends?
  • Capital Markets
  • United Kingdom
  • 20 November 2018

The Financial Conduct Authority recently implemented changes to the initial public offer (IPO) regime that have had a fundamental impact on the process of conducting an IPO in the United Kingdom. Companies including Aston Martin and Funding Circle have had to negotiate these new rules in practice over the past few months and certain trends are now beginning to emerge.

Brokers' negligence – guidance on scope of duty and causation
Herbert Smith Freehills LLP
  • Insurance
  • United Kingdom
  • 20 November 2018

The High Court recently considered a negligence claim against an insurance broker which had arisen out of a fire at a waste recycling facility. In its decision, the court provided a useful recap on brokers' duties – in particular, their duty to advise clients on their pre-inception duties of disclosure. Notably, the judge considered how causation should be analysed in brokers' negligence cases where the insured has not pursued the claim against its insurer to settlement, judgment or award.

Letter of contract versus business common sense – latest from Court of Appeal
RPC
  • Litigation
  • United Kingdom
  • 20 November 2018

In the latest of a long line of higher court authorities debating the boundaries between black letter and more purposive approaches to contractual construction, the Court of Appeal has taken another step away from the high-water marks of the business common sense approach to contractual meaning. The decision confirms that parties are more likely to be able to work contractual machinery according to the black letter terms in which it is set out on the face of the contract.

Directors' duties: guidance from GC100
Squire Patton Boggs
  • Company & Commercial
  • United Kingdom
  • 19 November 2018

The Association of General Counsel and Company Secretaries working in UK FTSE 100 companies (GC100) has issued guidance on the practical interpretation of Section 172 of the Companies Act 2006. The GC100 guidance aims to provide directors with practical help in interpreting their Section 172 duties rather than offer legal advice, and sets out five specific things to help directors embed Section 172 into their decision making.

Progress, but still much to do: update on smart systems and flexibility plan
CMS Cameron McKenna Nabarro Olswang LLP
  • Energy & Natural Resources
  • United Kingdom
  • 19 November 2018

The Department for Business, Energy and Industrial Strategy and Ofgem recently released a progress update relating to their July 2017 joint paper "Upgrading Our Energy System: Smart Systems and Flexibility Plan". Among other things, the update discusses the steps that have been and remain to be taken to improve certainty over the treatment of storage in the current regulatory regime with the aim of providing further clarity for developers of storage facilities.

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