Changing the effect – Counsel
‘Litigators beware – open conduct in litigation could change the effect of a Part 36 offer, warns Alan Tunkel.’
Counsel, July 2016
Source: www.counselmagazine.co.uk
NA (Pakistan) v Secretary of State for the Home Department; KJ (Angola) v Secretary of State for the Home Department; WM (Afghanistan) v Secretary of State for the Home Department; MY (Kenya) v Secretary of State for the Home Department – WLR Daily
‘The claimant foreign nationals, NA, KJ, WM and MY, who had resided for significant periods of time in the United Kingdom, were convicted of offences to which they were sentenced to periods of imprisonment of 12 months or more. As a result, they fell within the definition of foreign criminals in section 32 of the UK Border Act 2007, in respect of whom the Secretary of State was liable to make a deportation order, subject to the exceptions in section 33, which included where deportation would breach the offender’s rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimants in each case made representations against their deportation in reliance on their rights to a private and family life under article 8 of the Convention. Paragraph 398 of the Immigration Rules, as they applied between July 2012 and 27 July 2014 (“the 2012 Rules”), provided that when assessing a claim that deportation would be contrary to an offender’s rights under article 8 of the Convention, the Secretary of State was required to consider whether the circumstances in paragraph 399 and 399A of the 2012 Rules existed, and that if they did not, it was only in exceptional circumstances that the public interest in deportation would be outweighed by other factors. The circumstances: (1) in paragraph 399 were that the claimant had a genuine and subsisting parental relationship with a child dependent on the claimant or a partner and it was not reasonable to expect the child to leave the United Kingdom or there were insurmountable obstacles to family life with the partner continuing outside the United Kingdom; and (2) in paragraph 399A were the long residence of the claimant in the United Kingdom and lack of family, social or cultural ties with the country to which he was to be removed. Pararaphs 399 and 399A applied to offenders sentenced to imprisonment for at least 12 months but less than four years (“medium offenders”) but not to those sentenced to periods of four years or more (“serious offenders”). ‘
WLR Daily, 16th June 2016
Source: www.iclr.co.uk
In re X (A Child) (Reporting Restrictions: Guidance) – WLR Daily
In re X (A Child) (Reporting Restrictions: Guidance) [2016] EWHC 1668 (Fam)
‘Those applying for reporting restriction orders in family proceedings need to comply meticulously with the obligation to adequately notify the media in accordance with the FPR Practice Direction 12I—Applications for Reporting Restriction Orders and associate Cafcass practice note (paras 10, 25–28).’
WLR Daily, 4th July 2016
Source: www.iclr.co.uk
Surrey and others v Barnet and Chase Farm Hospitals NHS Trust – WLR Daily
Surrey and others v Barnet and Chase Farm Hospitals NHS Trust [2016] EWHC 1598 (QB)
‘Three separate cases involving clinical negligence litigation against the defendant hospital had been proceeding for several years prior to 1 April 2013. Under new legislation coming into force on 1 April 2013, a claimant entering into a conditional fee agreement (“CFA”) from that date would be unable to recover success fees and after the event (“ATE”) insurance premiums from the defendant if successful in the litigation. In each case the claim had initially been advanced with the benefit of legal aid, but in the month prior to 1 April 2013 the claimant’s solicitors, with the agreement of the claimant’s litigation friend, arranged for the legal aid certificate to be discharged and for the claim henceforth to be funded by a CFA to preserve the ability to recover the success fee and ATE premiums. In none of the cases was the litigation friend informed that the consequence would be the loss of the recognised 10% uplift on general damages. In each case the defendant challenged the successful claimant’s bill of costs, in so far as it sought to recover the success fee and the ATE premium, contending that the litigation friend’s decision was based on materially unreasonable advice (by reason of the omission to mention the 10% uplift) and that, since the burden was on the receiving party to establish that a cost was reasonably incurred and it was unknown what decision would have been made had proper advice been given, the doubt as to whether the additional costs were reasonably and proportionately incurred should be resolved in favour of the paying party. The costs judge in each case upheld the defendant’s challenge to those items, holding that the changed funding arrangements were not reasonable. Each claimant appealed, contending that the reasonableness of the decision to change funding had to be objectively assessed, so that the quality of any antecedent advice given to the claimants’ litigation friends was irrelevant.’
WLR Daily, 1st July 2016
Source: www.iclr.co.uk
Cadbury UK Ltd v Comptroller General of Patents, Designs and Trade Marks (Societe Des Produits Nestle SA intervening) – WLR Daily
‘Where a party intervenes in an appeal from a decision of a hearing officer acting on behalf of the Comptroller General of Patents, Designs and Trade Marks, ordinary a costs order will not be made in the intervener’s favour. The court will only consider departing from its ordinary position if it is satisfied that (1) the intervener’s position was successful, (2) its submission added value to the hearing, and (3) it had not duplicated the respondent’s submissions (paras 10, 12).’
WLR Daily, 7th July 2016
Source: www.iclr.co.uk
City West Housing Trust v Massey; Manchester and District Housing Association v Roberts – WLR Daily
‘When exercising the discretion to suspend a possession order where a tenant’s evidence was considered to be untrue in whole or part, the judge has to be persuaded by cogent evidence that there is a sound basis for the hope that the previous conduct will cease or not recur. Cogent evidence regarding future compliance does not need to stem solely from the tenant himself, without regard to how others might behave, rather the likelihood or possibility of action by others, or even the perception that others might take action, may in an appropriate case be evidence which supports an overall assessment that there is real hope of compliance in the future (post, paras 47–49).’
WLR Daily, 7th July 2016
Source: www.iclr.co.uk
Daniel and another v Tee and others – WLR Daily
Daniel and another v Tee and others [2016] EWHC 1538 (Ch)
‘The defendants were professional solicitor trustees of a trust of which the claimants were the beneficiaries. The claimants sought compensation for breach of trust in connection with the investment of the trust funds in the period 2000 to 2002.’
WLR Daily, 1st July 2016
Source: www.iclr.co.uk
DB UK Bank Ltd (trading as DB Mortgages) v Jacobs Solicitors – WLR Daily
DB UK Bank Ltd (trading as DB Mortgages) v Jacobs Solicitors [2016 [EWHC] 1614 (Ch)
‘The claimant bank brought a claim for professional negligence against the defendant firm of solicitors. The claimant’s solicitors sent a letter to the defendant’s solicitors stating that they were accepting the defendant’s offer to settle contained in a “ without prejudice save as to costs” letter (“WPSAC letter”) and enclosing a draft Tomlin order. A series of without prejudice letters and conversations followed. The defendant’s solicitors wrote reiterating the terms of their offer of settlement. Subsequently, the claimant’s solicitors sent a without prejudice letter containing a CPR Pt 36 offer. The parties differed as to the effect of the claimant’s Part 36 offer on the defendant’s WPSAC letter. The defendant contended that the claimant’s Part 36 offer was a counteroffer and, in law, had the effect of rejecting its WPSAC letter so that thereafter, it was not open for acceptance.’
WLR Daily, 4th July 2016
Source: www.iclr.co.uk
Supreme Court revamp raises hopes for women – Law Society’s Gazette
‘The Supreme Court is expected to revamp its judicial selection process, which could result in more women filling vacancies.’
Law Society’s Gazette, 12th July 2016
Source: www.lawgazette.co.uk
We Need To Talk About…Abu Qatada – RightsInfo
‘In the first of an occasional series, we discuss a controversial human rights case and argue that there is another side to the way the case was reported.’
RightsInfo, 7th July 2016
Source: www.rightsinfo.org
The digital drive – Counsel
‘Catherine Baksi considers whether lawyers, judges, courts and clients are ready for a digital revolution, the drivers for change, and impact on access to justice.’
Counsel, July 2016
Source: www.counselmagazine.co.uk
Government alters thresholds for scrutiny of neighbourhood planning appeals – OUT-LAW.com
‘The UK government has extended its scrutiny of planning appeals involving housing development in neighbourhood planning areas, but the thresholds for the recovery of such appeals have been altered.’
OUT-LAW.com, 13th July 2016
Source: www.out-law.com
Divorced husband allowed to challenge will – Legal Futures
‘A divorced husband has been given permission to challenge the validity of his ex mother-in-law’s will.’
Legal Futures, 12th July 2016
Source: www.legalfutures.co.uk
Lingerie firm wins court fight over tax on bras for breast cancer patients – Daily Telegraph
‘Lingerie company bosses have won a Supreme Court fight over tax on special bras worn by women who have had a mastectomy.’
Daily Telegraph, 13th July 2016
Source: www.telegraph.co.uk
Ex-soldier jailed for trying to buy guns ‘to fight for IS’ – BBC News
‘A former British soldier who tried to join the so-called Islamic State has been jailed for 18 years for attempting to buy machine guns and pistols.’
BBC News, 12th July 2016
Source: www.bbc.co.uk
Has the Claimant Beaten its Part 36 Offer? Perhaps not as Simple as it Looks – Zenith PI Blog
‘HHJ Pelling QC considered whether, when considering if a claimant had beaten its Part 36 offer, the court should simply compare the amount of the judgment with the offer the claimant had made or if account should be taken of the interest that had accrued in the period leading up to the trial.’
Zenith PI Blog, 13th July 2016
Source: www.zenithpi.wordpress.com
Right to light appeal: bad conduct ‘key factor’ in grant of injunction, experts say – OUT-LAW.com
‘The Court of Appeal has upheld an injunction over what was a relatively minor breach of a right to light, primarily because of the developer’s poor conduct throughout the dispute.’
OUT-LAW.com, 12th July 2016
Source: www.out-law.com
Snooper’s charter could endanger journalists and sources, peers warn – The Guardian
‘Peers have issued a serious warning that the government’s proposed “snooper’s charter” law could endanger journalists and their sources.’
The Guardian, 12th July 2016
Source: www.guardian.co.uk
