Second bite of the cherry? Bringing a second action against different employers for development of mesothelioma: abuse of process, cause of action estoppel and discretion under s33 Limitation Act 1980 considered – Zenith PI Blog

‘Would an action against employers who were unidentifiable at the time of an initial claim against 8 other employers in 2003 succeed where it was argued that such proceedings were an abuse of process of the court, that there was cause of action estoppel and where the claim was statute barred and required an application under s 33 Limitation Act 1980?’

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Zenith PI Blog, 21st October 2014


Net contribution clauses: What you need to know – Hardwicke Chambers

Posted September 25th, 2014 in construction industry, contracts, damages, limitations, news by sally

‘Most construction professionals will be familiar with net contribution clauses (NCCs) in consultants’ appointments and collateral warranties but their use should not necessarily be limited to the construction sector. They may be useful in any project where professionals from a multiplicity of disciplines are retained.’

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Hardwicke Chambers, 19th September 2014


The quasi-trust – The Barristers’ Hub

‘As every student of equity knows well, a trust is a type of property ownership in which one or more people (the trustee(s)) hold property on behalf of one or more other people (the beneficiary/ies), exercise all the powers of an owner of property in relation to third parties, but are bound to do so for the exclusive interests of the beneficiaries. A trust can be express, made by a formal written implement, or implied, either by transfer of property without explanation (a resulting trust) or in circumstances where the common intention of the parties is or is deemed to be for the property to be held on trust (a constructive trust). Both express and implied trusts are genuine trusts: the property is owned by the trustee, subject to the interest of the beneficiaries.’

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The Barristers’ Hub, 1st August 2014


David T. Morrison & Co Limited t/a Gael Home Interiors (Respondent) v ICL Plastics Limited and others (Appellants) (Scotland) – Supreme Court

David T. Morrison & Co Limited t/a Gael Home Interiors (Respondent) v ICL Plastics Limited and others (Appellants) (Scotland) [2014] UKSC 48 (YouTube)

Supreme Court, 30th July 2014


Ballinger and another v Mercer Ltd and another – WLR Daily

Ballinger and another v Mercer Ltd and another; [2014] EWCA Civ 996; [2014] WLR (D) 335

‘Where a claimant applied to introduce a new claim by amendment under CPR r 17.4, and the defendant could show a prima facie defence of limitation, the burden was on the claimant to show that the defence was not reasonably arguable. Amendments seeking to add or substitute a new cause of action would only be permitted if they arose out of the same or substantially the same facts as were already in issue on the existing claims.’

WLR Daily, 17th July 2014


Agbenowossi-Koffi v Donvand Ltd (t/a Gullivers Travel Associates) – WLR Daily

Agbenowossi-Koffi v Donvand Ltd (t/a Gullivers Travel Associates): [2014] EWCA Civ 855; [2014] WLR (D) 282

‘Where a claim of race discrimination had been dismissed on limitation grounds those allegations could not be repeated in a second claim together with additional allegations which could have been included in the first claim but had not been, in order to avoid the limitation defence by founding a claim based on conduct extending over a period of time. The second claim was an abuse of process.’

WLR Daily, 24th June 2014


Dawson v Thomson Airways Ltd – WLR Daily

Posted June 25th, 2014 in airlines, carriage by air, compensation, delay, EC law, law reports, limitations by sally

Dawson v Thomson Airways Ltd [2014] EWCA Civ 845; [2014] WLR (D) 279

‘The limitation period applicable to a claim brought in England for compensation for cancellation or delay under articles 5 and 7 of Parliament and Council Regulation (EC) No 261/2004 was the six-year period prescribed by section 9 of the Limitation Act 1980.’

WLR Daily, 19th June 2014


Court of Appeal rules against second airline on flight delays – Law society’s Gazette

Posted June 20th, 2014 in airlines, appeals, compensation, delay, limitations, news by tracey

‘The aviation industry has suffered another court defeat after an appeal judge ruled claims can be made up to six years after a flight delay.’

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Law Society’s Gazette, 20th June 2014


Insolvent defendants and claimants – Thirty Nine Essex Street

‘Corporate bodies (limited companies or LLPs) have a separate legal identity that ceases to exist upon dissolution. Dissolution can occur, broadly speaking, in two ways, one is at the end of the process of winding up (whether voluntary or compulsory) and the other is by the process of striking off the Register of Companies or limited liability partnerships. The latter occurs either as a result of the company’s or LLP’s failure to file accounts, returns etc. or by a process of voluntary striking off.’

Full story (PDF)

Thirty Nine Essex Street, 7th March 2014


Amending a statement of case after limitation period has ended – Hardwicke Chambers

‘In Chandra & ors v Brooke North [2013] EWCA Civ 1559 the Court of Appeal gives practitioners and courts useful guidance about the correct approach to applications to amend introducing new claims outside limitation periods. The history of the case is a demonstration of the procedural knots and costly consequences for the parties that can be created when the lower courts go further than they should.’

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Hardwicke Chambers, 13th March 2014


Kairos Shipping Ltd and another v Enka & Co LLC and others – WLR Daily

Kairos Shipping Ltd and another v Enka & Co LLC and others: [2014] EWCA Civ 217;   [2014] WLR (D)  113

‘It is in principle possible to constitute a limitation fund under the International Convention on Limitation of Liability for Maritime Claims 1976, scheduled to the Merchant Shipping Act 1995, by means of a guarantee in the form of a letter of undertaking provided by a protection and indemnity club.’

WLR Daily, 6th March 2014


The Mis-Selling of Interest Rate Swaps – A Discussion – No. 5 Chambers

Posted February 24th, 2014 in banking, financial regulation, interest, limitations, news by sally

‘As many will be aware, the recent RBS swaps cases have thrown up interesting issues, including the proper characterization of legal duties owed by banks and other regulated firms, standard form limitation/exclusion terms, and Limitation Act problems. These issues are further complicated by the LIBOR manipulation points raised in Graisely Properties v Barclays.’

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No. 5 Chambers, 24th February 2014


Williams (Respondent) v Central Bank of Nigeria (Appellant) – Supreme Court

Posted February 21st, 2014 in constructive trusts, fraud, law reports, limitations by sally

Williams (Respondent) v Central Bank of Nigeria (Appellant) [2014] UKSC 10 (YouTube)

Supreme Court, 19th February 2014


These Things Take Time – Zenith Chambers

Posted February 14th, 2014 in limitations, negligence, news, personal injuries by sally

‘On 11th December 2013 the Court of Appeal gave judgment in Davidson v Aegis [2013] EWCA Civ 1586. The case provides a useful and up to date reminder of the applicable principles when a Court is asked to use section 33 of the Limitation Act 1980 to disapply the primary limitation period in a personal injuries action.’

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Zenith Chambers, 5th February 2014


How long do I have? – Hardwicke Chambers

Posted January 22nd, 2014 in appeals, arbitration, contracts, limitations, news, restitution by sally

‘Until recently it was unclear how long a party who lost in an adjudication, and had to pay money to the winning party, had to bring a subsequent claim for recovery of those monies. The position has recently been resolved by the Court of Appeal in the case of Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2013] EWCA Civ 1541 but the discussion had started earlier with the case of Jim Ennis Construction Ltd v Premier Asphalt Ltd [2009] EWHC 1906 (TCC).’

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Hardwicke Chambers, 15th January 2014


“I read it in the newspaper”: The current spate of ancillary relief negligence claims raising near identical section 14A arguments – Hardwicke Chambers

Posted January 22nd, 2014 in financial provision, limitations, negligence, news, pensions, valuation by sally

‘In ancillary relief proceedings, the largest assets are frequently the divorcing couple’s matrimonial home and pension rights. Whilst it is usually straightforward to ascertain the value of the former, accurately achieving this for the latter can be a highly technical exercise. Solicitors’ alleged failure to analyse pension transfer values is the subject of a spate of negligence claims currently being brought by former clients. No case is yet to be reported, but it is expected that a number will be during 2014.’

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Hardwicke Chambers, 13th January 2014


Some limitations on setting aside vulnerable mortgage transactions – 11 Stone Buildings

Posted January 22nd, 2014 in limitations, mortgages, news, setting aside, undue influence by sally

‘The landmark decision of the House of Lords Royal Bank of Scotland v Etridge (No 2) [2002] 2 AC 773
described the circumstances which render a lending transaction by a bank vulnerable to a challenge for undue influence and provided guidance to bankers as to which steps they would need to take in order to protect their lending, and any security to be taken, from challenge. Several cases decided since Etridgehave demonstrated the breadth of the scope for challenge where bankers have failed to follow the guidance, while others have highlighted some constraints on effective challenges based upon undue influence. Jeremy Cousins QC discussed this topic at a recent lecture of the Chancery Bar Association and shares his thought in this detailed ‘Insider’.’

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11 Stone Buildings, January 2014


MoJ confirms plans for medical whiplash panels – Law Society’s Gazette

Posted January 16th, 2014 in doctors, evidence, fraud, limitations, news, personal injuries by tracey

‘The Ministry of Justice has confirmed that a working group will next month begin the process of creating medical panels to assess whiplash injury claims.’

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Law Society’s Gazette, 16th January 2014


Court of Appeal decision on limitation periods could have adverse consequences for contracting parties, says expert –

Posted December 13th, 2013 in appeals, construction industry, contracts, limitations, news, time limits by sally

‘A recent court decision which changed the point at which the six years within which a contractor must begin litigation in the courts starts to run could lead to uncertainty for the successful party to an earlier adjudication, an expert has said.’

Full story, 12th December 2013


Aspect Contracts (Asbestos) Ltd v Higgins Construction Ltd – WLR Daily

Aspect Contracts (Asbestos) Ltd v Higgins Construction Ltd [2013] EWCA Civ 1541; [2013] WLR (D) 463

‘On a true construction of an implied term in a construction contract a party was entitled, following an adjudication in which it had been the loser, but where it maintained that it had made an over-payment, to bring proceedings for repayment; and the applicable limitation period ran from the date of the over-payment.’

WLR Daily, 29th November 2013