The impact of new consumer regulations – Hardwicke Chambers

Posted April 13th, 2016 in consumer protection, contracts, drafting, EC law, landlord & tenant, leases, news by sally

‘On 1 October 2015 the Consumer Rights Act 2015 (“CRA”) came into force. CRA superseded the Unfair Terms in Consumer Contracts Regulations 1999 (“UTCCR”). The CRA aims to modernise, simplify and consolidate key parts of consumer law; it is the cornerstone of an extensive consumer law reform programme. Anyone acting in a landlord and tenant dispute or drafting tenancy or lease agreement needs to be familiar with its provisions’

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Hardwicke Chambers, 11th March 2016


Opportunity doesn’t knock twice: recovering damages for consequential loss – Hardwicke Chambers

‘Today’s banks are in receipt of the largest fines ever imposed by the Financial Conduct Authority (FCA), or its predecessor the Financial Services Authority (FSA), and although they are taking responsibility for a number of failings (eg PPI, Derivatives, LIBOR and FOREX), restrictions on recovering loss, in particular where consequential loss is concerned, have come under significant scrutiny. This article examines the measure of loss in tort and contract, and particularly explores investors’ difficulties when making claims for loss of profit caused by mis selling.’

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Hardwicke Chambers, 31st March 2016


Just and Equitable Winding – Up & Bankruptcy Trustees – New Square Chambers

‘In a recent decision the Companies Court has held that trustees in bankruptcy do not need to satisfy the actual registration requirements set out in s.124(2)(b) of the Insolvency Act 1986 (“IA”) before presenting a just and equitable winding-up petition. For the first time, the decision in Stratford Edward Hamilton & James Ashley Dowers (Trustees in Bankruptcy of Charles Newell Brown) v Maureen Frances Brown & C&MB Holdings Ltd [2016] EWHC 191 (Ch)puts bankruptcy trustees in the same position as they are in with respect to unfair prejudice petitions and means that they do not have to wait a minimum of six months following their appointment to have the necessary locus to present a just and equitable winding up petition.’

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New Square Chambers, 11th April 2016


When an unsafe structure does not trigger the landlord’s duty to repair – Hardwicke Chambers

‘The reach of the Defective Premises Act and what ‘defective’ means within the context of the Act, was the subject of detailed consideration in the QBD recently, in Dodd v Raebarn Estates [2016].’

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Hardwicke Chambers, 8th March 2016


Wrongful Birth and Wrongful Conception – The Rights of the Father – Hardwicke Chambers

‘The law on recovery for damages in wrongful birth and wrongful conception cases has been settled for some time; since the cases of McFarlane v Tayside Board of Health [2000] 2 AC 59, Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530 and Rees v Darlington Memorial Hospital NHS Trust [2002] EWCA Civ 88 there has been little, if any, disruption to the status quo. It is clear however that there do remain some unanswered questions regarding the limits of recovery in this area; one such query arose in the more recent case of Whitehead v Searle [2008] EWCA Civ 285, where the rights of a father in these actions was considered.’

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Hardwicke Chambers, 8th April 2016


The Future of Employment Tribunals: A Need for Change? – Littleton Chambers

‘Dodge the tumbleweed blowing down the corridors, enter any Employment Tribunal (ET) waiting room and you will almost certainly see at least one employment lawyer sitting, staring at the dregs in their polystyrene cup looking to see whether the tealeaves will reveal if and when ET litigation will rise again, or whether the end of the ET system is nigh.’

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Littleton Chambers, 24th March 2016


Commercial Landlord & Tenant Law – New Square Chambers

‘In 2011, Marks and Spencer plc (“M&S”) operated a “break clause” in commercial leases of office premises. Following determination, M&S sought to recover from the landlord advance quarterly rent that it had paid for the period after the successful break. M&S relied, in part, on an implied term claim that post-break rent should be returned to it. The landlord denied the claim and litigation ensued. Morgan J in the High Court gave judgment for M&S on the claim. The Court of Appeal unanimously reversed the judgment. The Supreme Court unanimously dismissed M&S’ appeal and re-stated the principles for the implication of contract terms: Marks and Spencer plc v BNP Paribas Securities Services Trust Co (Jersey) Ltd[2015] UKSC 72, [2015] 3 WLR 1843.’

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New Square Chambers, 11th April 2016


Service Provision Changes and Multiple Organised Groupings – Littleton Chambers

‘Nicholas Siddall analyses the recent decision of Simler J(P) in Arch Initiatives v GMW Mental Health NHS Foundation Trust & Others [2016] UKEAT/0267/15/RN and seeks to analyse the wider importance of the decision.’

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Littleton Chambers, 5th April 2016


Proprietary Estoppel: Expectation or Detriment – New Square Chambers

Posted April 13th, 2016 in appeals, compensation, damages, enforcement, estoppel, news, proportionality by sally

‘Proprietary estoppel claims can give rise to a particular issue: should the measure of the claimant’s relief be compensation for detriment or, more generously, enforcement of the relevant promise or assurance?’

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New Square Chambers, 11th April 2016


Testamentary capacity and the not-so golden rule: Burns v Burns [2016] EWCA Civ 37 – Park Square Barristers

Posted April 13th, 2016 in appeals, codes of practice, doctors, news, probate, solicitors, wills by sally

‘David Rose reviews the recent Court of Appeal decision in Burns v Burns [2016] EWCA Civ 37, which contains an up-to-date summary of the law relating to testamentary capacity and knowledge & approval.’

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Park Square Barristers, 31st March 2016


Recent Statutory Instruments –

Posted April 13th, 2016 in legislation by sally

SI 2016/500 – The Exempt Charities Order 2016

SI 2016/497 – The Chief Regulator of Qualifications and Examinations Order 2016

SI 2016/496 – The General Dental Council (Fitness to Practise etc.) Order 2016

SI 2016/477 – The Designation of Schools Having a Religious Character (Independent Schools) (England) Order 2016

SI 2016/476 – The Education (National Curriculum) (Key Stage 4 Assessment Arrangements) (England) Order 2016

SI 2016/475 – The Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016

SI 2016/471 – The Hornsea One Offshore Wind Farm (Amendment) Order 2016

SI 2016/466 – The Education and Adoption Act 2016 (Commencement, Transitional Provisions and Savings) Regulations 2016

SI 2016/484 – The Consumer Rights Act 2015 (Commencement No. 3, Transitional Provisions, Savings and Consequential Amendments) (Amendment) Order 2016

SI 2016/481 – The Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Bankruptcy) and the Small Business, Enterprise and Employment Act 2015 (Consequential Amendments) Regulations 2016

SI 2016/482 – The March West and White Fen Internal Drainage Board Order 2016

SI 2016/488 – The Police and Crime Commissioner Elections (Returning Officers’ Accounts) (Amendment) Regulations 2016

SI 2016/486 – The Wireless Telegraphy (Exemption) (Amendment) Regulations 2016

SI 2016/478 – The Education (National Curriculum) (Specified Purpose) (England) Order 2016

SI 2016/465 – The Water Act 2014 (Commencement No. 6, Transitional Provisions and Savings) Order 2016

SI 2016/458 – The Apprenticeship Certificate (England) Regulations 2016

SI 2016/457 – The Renewables Obligation Closure Etc. (Amendment) Order 2016

SI 2016/455 – The Infrastructure Act 2015 (Commencement No. 5) Regulations 2016

SI 2016/454 – The Vaccine Damage Payments (Specified Disease) Order 2016


BAILII: Recent Decisions

Posted April 13th, 2016 in law reports by sally

Court of Appeal (Civil Division)

Hallam & Anor, R (on the applications of) v The Secretary of State for Justice (rev 1) [2016] EWCA Civ 355 (11 April 2016)

High Court (Administrative Court)

B, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 786 (Admin) (12 April 2016)

Sino, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 803 (Admin) (12 April 2016)

Harris & Anor, R (on the application of) v Broads Authority [2016] EWHC 799 (Admin) (12 April 2016)

High Court (Chancery Division)

Sharp & Ors v Blank & Ors [2016] EWHC 776 (Ch) (12 April 2016)

Der Merwe v Goldman & Ors [2016] EWHC 790 (Ch) (11 April 2016)

High Court (Family Division)

I, Re (Human Fertilisation And Embryology Act 2008) [2016] EWHC 791 (Fam) (12 April 2016)

E-R (Child Arrangements) [2016] EWHC 805 (Fam) (08 April 2016)

High Court (Patents Court)

American Science & Engineering Inc v Rapiscan Systems Ltd [2016] EWHC 756 (Pat) (11 April 2016)

High Court (Queen’s Bench Division)

Axon v Ministry of Defence [2016] EWHC 787 (QB) (11 April 2016)

Gurieva & Anor v Community Safety Development (UK) Ltd [2016] EWHC 643 (QB) (06 April 2016)

Sparrow v Andre [2016] EWHC 739 (QB) (06 April 2016)


England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another – WLR Daily

Posted April 13th, 2016 in copyright, damages, EC law, intellectual property, internet, law reports, sport by sally

England and Wales Cricket Board Ltd and another v Tixdaq Ltd and another [2016] EWHC 575 (Ch)

‘The claimants owned the copyrights in television broadcasts, and in films incorporated within such broadcasts, of most cricket matches played by the English cricket teams in England and Wales. The defendants operated a website and various mobile applications (“Apps”) which used screen capture technology to copy clips of broadcast footage of sporting events and uploaded those clips to the Apps. The defendants’ uploaded a considerable number of clips of broadcasts of cricket matches, lasting up to eight seconds, to the Apps where they could be viewed by users. Users could also upload clips, together with commentary, on to the website and the defendants’ social media accounts. The claimants brought a claim for damages, alleging uploading the clips prima facie constituted breaches of sections 16, 17 and/or 20 of the Copyright Designs and Patents Act 1988. The 1988 Act did not require either broadcasts or films to be original in order for copyright to subsist in them. An issue arose as to the applicable test for substantiality in circumstances where there was no intellectual creation. The question went to both infringement, which required an act such as reproduction or communication to the public of the whole, or any “substantial part” of a work, and also to the applicability of the fair dealing defence in section 30(2) of the 1988 Act, on which the defendants relied.’

WLR Daily, 18th April 2016


Shergill and others v Khaira and others (No 2) – WLR Daily

Posted April 13th, 2016 in appeals, civil procedure rules, costs, law reports, striking out, Supreme Court by sally

Shergill and others v Khaira and others (No 2) [2016] EWHC 628 (Ch)

‘The judge dismissed the defendants’ application to strike out the claimants’ claim, a decision which was later reversed by the Court of Appeal. The Supreme Court allowed the claimants’ appeal from that decision and ordered that the defendants pay the claimants’ costs in the Supreme Court and the Court of Appeal. The costs judge subsequently refused the defendants’ application to stay the immediate detailed assessment of those costs. The defendants appealed from that decision on the ground that, by CPR r 47.1, the costs of proceedings could not be subject to detailed assessment until the proceedings were concluded, unless the appellate court had expressly ordered the costs to be assessed immediately, which it had not.’

WLR Daily, 23rd March 2016


Howe v Motor Insurers’ Bureau – WLR Daily

Howe v Motor Insurers’ Bureau [2016] EWHC 640 (QB)

‘Regulation 13(1) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 provides: “(1) This regulation applies where— (a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA state, occurs on the territory of— (i) an EEA state other than the United Kingdom, or (ii) a subscribing state, and an injured party resides in the United Kingdom, (b) that injured party has made a request for information under regulation 9(2), and (c) it has proved impossible— (i) to identify the vehicle the use of which is alleged to have been responsible for the accident, or (ii) within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.”’

WLR Daily, 22nd March 2016


In re G (Human Fertilisation and Embryology Act 2008) – WLR Daily

In re G (Human Fertilisation and Embryology Act 2008) [2016] EWHC 729 (Fam)

‘The applicant, X, who was at all material times in a same-sex relationship with Y, was the biological mother of twins, born as a result of IVF treatment provided by a licensed fertility clinic to Y, the gestational mother and the twins’ legal parent. Y was at all material times in a civil partnership with, though separated from, another woman who was not a party to the proceedings. Y, as the gestational mother, should have signed Form WP, and X, as her partner, should have signed Form PP. In fact, and as a result of what was accepted to have been errors by the clinic, Y completed and signed a Form PP and X completed and signed a Form WP. A similar mistake was made in relation to the Form IC signed by both Y and X. X, supported by Y, sought a declaration pursuant to section 55A of the Family Law Act 1986 that she was, in accordance with section 43 of the Human Fertilisation and Embryology Act 2008, the legal parent of the twins and in the circumstances it was common ground that X was entitled to the relief she sought. The issues were: (1) whether that was a conclusion that the court could come to simply by a process of construction or whether the proper form of order was a decree of rectification and (2) arising out of the fact that Y was at all material times in a civil partnership with another woman, the potential impact of section 42(1) of the Human Fertilisation and Embryology Act 2008 which provided: “If at the time of the placing in her of the embryo or the sperm and eggs or of her artificial insemination, W was a party to a civil partnership or a marriage with another woman, then subject to section 45(2) to (4), the other party to the civil partnership or marriage is to be treated as a parent of the child unless it is shown that she did not consent to the placing in W of the embryo or the sperm and eggs or to her artificial insemination … ”’

WLR Daily, 6th April 2016


Health Executive of Ireland v Z and others – WLR Daily

Health Executive of Ireland v Z and others [2016] EWHC 784 (Fam)

‘The applicant sought and obtained an order in the Irish High Court authorising the treatment in a specialist unit in an English hospital of an Irish child aged 15 who had developed a very serious eating disorder and who required treatment which could not be provided in her home country. Her doctors, supported by her parents but against her wishes, made arrangements for her to be admitted and treated in a specialist unit in an English hospital which was able to provide the treatment required. The applicant applied to the English High Court for an order, under the inherent jurisdiction of the court, for recognition and enforcement of the Irish High Court order. At an initial hearing the court made an interim emergency order under inherent jurisdiction permitting the child’s emergency admission for treatment in the hospital in England. At a further hearing on notice a number of issues arose for determination, including whether article 1 of Council Regulation (EC) No 2201/2003 (“the Regulation”) applied to the case, whether the court had power under its inherent jurisdiction to make an interim emergency order for the recognition and enforcement of the Irish High Court order pending an application under FPR Pt 31, whether recognition should be refused on any of the grounds set out in article 23 of the Regulation, and whether the child should be represented in the proceedings.’

WLR Daily, 8th April 2016


Celebrity injunction: blogger defies legal threats as more papers print details – The Guardian

Posted April 13th, 2016 in appeals, contempt of court, injunctions, media, news, privacy by sally

‘Attempts to silence a blogger who published the identities of a celebrity couple at the centre of a UK press injunction appear to have backfired, as newspapers in Canada and Sweden published details of the story.’

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The Guardian, 13th April 2016


EU court hears case on UK data retention laws –

‘The EU’s highest court will hear arguments on Tuesday concerning the validity of UK data retention laws.’

Full story, 12th April 2016


Public access barristers join forces with debt solutions business to offer fixed-fee representation – Legal Futures

‘A group of public access barristers have formed a partnership with a debt solutions company to provide debtors with fixed-fee court representation that they could otherwise not afford.’

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Legal Futures, 12th April 2016