Part 36 uplift for beating offer includes contractual interest, High Court rules – Litigation Futures

‘The 10% uplift claimants receive for beating their part 36 offer includes contractual interest on the sum won at trial, the High Court has ruled.’

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Litigation Futures, 27th June 2016

Source: www.litigationfutures.com

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What to expect from the new criminal legal aid contracts – Legal Voice

Posted June 23rd, 2016 in advocacy, contracts, criminal justice, legal aid, news, solicitors by sally

‘Richard Miller explains what may be in store when the new criminal legal aid contracts come into force next year.’

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Legal Voice, 23rd June 2016

Source: www.legalvoice.org.uk

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No contract protected against the risk of bid-rigging, says expert – OUT-LAW.com

Posted June 22nd, 2016 in competition, contracts, news, public procurement by sally

‘Procurement professionals in all sectors need to be aware of the risk of bid-rigging of contracts they tender, a procurement law expert has said.’

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OUT-LAW.com, 21st June 2016

Source: www.out-law.com

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BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 plc and another – WLR Daily

Posted June 17th, 2016 in banking, contracts, interpretation, law reports, trusts by tracey

BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 plc and another [2016] UKSC 29

‘In March 2009, the financial services regulatory authority conducted a stress test of a banking group against the then applicable benchmark of a ratio of core tier 1 (“CT1”) capital to risk-weighted assets. The test demonstrated a shortage of capital. As a result, the defendants, two wholly-owned subsidiaries of the group, issued contingent convertible securities, described as enhanced capital notes. The notes, which carried a relatively high rate of interest, were not redeemable until specified maturity dates between 2019 and 2032 unless they were converted into shares on the occurrence of a conversion trigger, being any time when the group’s CT1 ratio fell below 5%, or they were redeemed early by the group on the occurrence of a capital disqualification event. Under clause 19 of the notes’ terms and conditions, contained in the trust deed, a capital disqualification event was deemed to have occurred if the notes ceased to be taken into account for the purposes of any stress test applied by the regulatory authority in respect of the group’s “consolidated CT1 ratio”. In 2013 regulatory changes replaced CT1 capital with a more restrictive category, common equity tier 1 (“CET1”) capital. The regulatory authority announced that the notes would now need to have a trigger for conversion higher than 5.125% CET1 in order to count as core capital but, under the terms of the notes, conversion would only be triggered if the group’s CET1 ratio fell to 1%. In December 2014 the regulatory authority carried out a stress test which did not take into account the notes and, as a result, the group announced that a capital disqualification event had occurred and that it was entitled to redeem the notes. The claimant trustee, on behalf of the note holders, sought a declaration that a capital disqualification event had not occurred, contending that the December 2014 stress test was not relevant for the purposes of clause 19 because it had been conducted by reference to a CET1 ratio rather than a consolidated CT1 ratio and that, alternatively, the fact that the notes had not been taken into account in the December 2014 stress test was not enough to trigger a capital disqualification event, rather the notes had to have been disallowed in principle from being taken into account for the purposes of the tier 1 ratio. The judge rejected the trustee’s first argument but accepted the second argument and declared that a capital disqualification event had not occurred. On the defendants’ appeal, the Court of Appeal, in construing the trust deed, took into account statements in the exchange offer memorandum, a letter from the group’s chairman and documents issued by the regulatory authority at and before the time at which the notes had been issued, and it allowed the appeal, holding that a capital disqualification event had occurred and that, therefore, the defendants were entitled to redeem the notes.’

WLR daily, 16th June 2016

Source: www.iclr.co.uk

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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

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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

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Competition watchdog attacks UK cloud storage providers – The Guardian

Posted May 27th, 2016 in competition, consumer protection, contracts, internet, news by tracey

‘Cloud storage providers are treating customers unfairly and risk users losing access to their photos and other personal possessions, the competition regulator said. An investigation by the Competition and Markets Authority found providers offered contract terms and practices that could breach consumer law.’

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The Guardian, 27th May 2016

Source: www.guardian.co.uk

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Contracts with ‘no oral variation’ clauses can “in principle” be varied orally, says Court of Appeal – OUT-LAW.com

Posted May 25th, 2016 in appeals, contracts, news by sally

‘Clauses in commercial contracts preventing variation other than in writing are “in principle” unenforceable, given that parties to such contracts generally have the freedom to agree to vary whatever terms they choose, according to three senior judges.’

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OUT-LAW.com, 24th May 2016

Source: www.out-law.com

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High Court rejects defendant’s bid to withdraw admission of liability – Litigation Futures

‘A defendant cannot withdraw an admission of liability because the value of a claim has increased, the High Court has ruled.’

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Litigation Futures, 19th May 2016

Source: www.litigationfutures.com

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Shipping fuel supply agreement was at no time ‘sale of goods’, Supreme Court confirms – OUT-LAW.com

Posted May 13th, 2016 in contracts, insolvency, news, shipping law by tracey

‘The supply of “bunkers” of marine fuel on credit for immediate use was not governed by the 1979 Sale of Goods Act, leaving the shipping company in debt to the bank which has taken over the liabilities of the insolvent bunker supplier, the UK’s highest court has confirmed.’

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OUT-LAW.com, 12th May 2016

Source: www.out-law.com

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The Structural Engineer’s Professional Duty to Warn and Goldswain v Beltec Ltd [2015] – Hardwicke Chambers

‘The duty to warn arises as no more than an aspect of the duty to act with the skill and care of an ordinarily competent professional. The existence of the duty recognises that in some circumstances the professional must go beyond what is specified as the desired performance in a contract (e.g. carrying out a design) and account for any risks of which he is aware by virtue of that expertise and warn others who may not be so aware.’

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Hardwicke Chambers, 19th April 2016

Source: www.hardwicke.co.uk

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To notify or not to notify: the impact of contact terms on common law rights to terminate – Hardwicke Chambers

Posted April 27th, 2016 in compensation, construction industry, contracts, damages, news, notification by sally

‘In Vinergy International (PVT) Ltd v Richmond Mercantile Ltd FZC [2016] EWHC 525 (Comm), Teare J held that the notice requirements contained in the termination provisions of a master supply agreement (the MSA) did not apply to an innocent party’s exercise of its common law right to terminate the agreement by accepting the other party’s repudiatory breach.’

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Hardwicke Chambers, 26th April 2016

Source: www.hardwicke.co.uk

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Staff handbook provisions had contractual effect, rules Court of Appeal – OUT-LAW.com

Posted April 27th, 2016 in appeals, contract of employment, contracts, documents, employment, news by sally

‘A recent decision by the Court of Appeal provides a “helpful summary” of the circumstances in which employment terms set out in separate documents should be considered incorporated into employee’s contracts, according to an employment law expert.’

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OUT-LAW.com, 26th Aoril 2016

Source: www.out-law.com

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Van der Merwe v Goldman and another – WLR Daily

Posted April 20th, 2016 in contracts, law reports, mistake, rescission, setting aside by sally

Van der Merwe v Goldman and another [2016] EWHC 790 (Ch)

‘The claimant and the first defendant were husband and wife and the joint freehold owners of a house, where they lived. On 24 March the claimant and the first defendant executed a transfer of the title to the house to the claimant alone, for no stated consideration. On 27 March the claimant executed a deed of settlement whereby he settled the house on the terms of that deed and appointed himself and the first defendant as trustees of the settlement. The claimant also executed a transfer of the title to the house to himself and the first defendant as the trustees of the settlement. The principal beneficiaries of the settlement were the claimant, the first defendant, their children and remoter issue. Although the transactions were entered into in order to obtain certain tax advantages, in fact, as a consequence of a change in the law, they gave rise to a substantial tax liability. The claimant and first defendant brought a claim for an order setting aside the transfer of 24 March and the settlement and transfer of 27 March. In issue in the proceedings, to which the revenue was joined as a second defendant, was whether the transactions were governed by common law rules for declaring a contract to be void by reason of mistake or the equitable rules for setting aside a gift for mistake.’

WLR Daily, 11th April 2016

Source: www.iclr.co.uk

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Conveyancers on both sides held liable for fraud in landmark case – Legal Futures

Posted April 19th, 2016 in breach of trust, contracts, conveyancing, fraud, money laundering, news, solicitors by sally

‘The conveyancers on both sides of a property fraud have been found jointly liable for the £470,000 loss suffered by the buyer.’

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Legal Futures, 18th April 2016

Source: www.legalfutures.co.uk

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G4S fined 100 times since 2010 for breaching prison contracts – The Guardian

Posted April 15th, 2016 in contracting out, contracts, fines, news, prisons by tracey

‘G4S has been fined at least 100 times for breaching its contracts to run prisons since 2010, according to data obtained by Labour.’

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The Guardian, 15th April 2016

Source: www.guardian.co.uk

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Appeal court: judge wrong to interfere with exclusion clause when wording sufficiently clear – OUT-LAW.com

‘A High Court judge was wrong to override an exclusion clause in a complex contract for the hire of an offshore drilling rig, as the parties were commercial equals and the wording of the clause was sufficiently clear, the appeal court has ruled.’

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OUT-LAW.com, 15th April 2016

Source: www.out-law.com

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Court of Appeal orders retrial over aggregation of claims against solicitors – Legal Futures

Posted April 15th, 2016 in appeals, contracts, indemnities, insurance, law firms, news, retrials, third parties by tracey

‘The Court of Appeal has overturned a High Court ruling that had protected law firms from financial risk through restricting the way professional indemnity insurers could aggregate multiple claims.’

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Legal Futures, 14th April 2016

Source: www.legalfutures.co.uk

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What are you referring to…?” The increased latitude required when considering adjudicators’ jurisdiction – Hardwicke Chambers

Posted April 14th, 2016 in arbitration, construction industry, contracts, jurisdiction, news by sally

‘With both the US and London mayoral elections gaining momentum, and leading commentators poised to offer independent research, enlivened views and sage analysis, you really would be forgiven for not having had your eyes trained on recent enforcement action in the TCC.’

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Hardwicke Chambers, 1st April 2016

Source: www.hardwicke.co.uk

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Employment Law Implications for Liquidated Damages and the Penalty Rule Following El Makdessi – Littleton Chambers

Posted April 14th, 2016 in appeals, contracts, damages, employment, news, penalties, Supreme Court by sally

‘In English law there is a presumption in favour of freedom of contract. The penalty rule represents an exception to that principle. A properly drafted liquidated damages clause entitles the claimant to recover the amount stipulated in the clause even if the actual loss is less than the amount payable. The inclusion of the clause is intended to provide certainty, to make the recovery of damages easier and less costly and, from the opposite perspective, to limit liability.’

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Littleton Chambers, 4th April 2016

Source: www.littletonchambers.com

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