Archive for the ‘Commercial dispute resolution’ Category
Tuesday, May 21st, 2013
Hammersmatch v Saint-Gobain [2013] EWHC 1161 is worthy of a read.
The court’s analysis of the s.18 cap and the weight it put on the parties’ valuation experts forms the biggest part of the judgment for good reason – the landlord’s original cost of works claim of £5 million was limited by the cap to £900k. Given that reduction, it would be interesting to know how the landlord’s litigation costs were assessed.
There is also a cautionary reminder that emails between a client and its non-legal advisor can be disclosed in legal proceedings. Here the court took them into account when considering whether the landlord actually intended to undertake the works.
For more insight see our dilapidations training video on our dedicated retail law website.
Posted by Tim Rayner, who specialises in property litigation, advises in connection with the full spectrum of property related disputes and commerical property
Tim Rayner
0121 237 3949
tim.rayner@brownejacobson.com
Tags: building surveyors, Dilapidations, Tim Rayner
Posted in Commercial dispute resolution, Commercial Litigation, Government, Health, Litigation, Local Authorities, NHS, Property, Public Sector, Retail | No Comments »
Wednesday, April 17th, 2013
The claimants’ solicitor entered into a conditional fee agreement (CFA) which provided for a success fee and after the event (ATE) insurance. The defendant argued that the claimant’s approved costs budget did not state that these items were excluded and that they should only be able to recover fees less the success fee and ATE premium.
However, revision of the budget was allowed with Mr Justice Coulson stating the claimant should not be penalised as the defendant knew of the existence of the CFA and ATE premium. The new Precedent H form now removes the chance of this mistake reoccurring. Further, departing from the cost budget will be an exceptional circumstance. The judgment says that if a party is looking to cure a fundamental inadequacy or to rectify a mistake this cannot be done via a new budget.
The court stressed that getting matters right is of the upmost importance to bring purpose and meaning to proper cost management.
Posted by Nichola Evans, who specialises in commercial dispute resolution, litigation funding issues including ATE insurance and third party funding; experienced litigator on high value complex litigation claims.
Nichola Evans
0161 242 1306
nevans@brownejacobson.com
Tags: civil procedure rules, costs, CPR, jackson, Jackson reforms, Nichola Evans
Posted in Commercial dispute resolution, Commercial Litigation, Insurance, Insurance - Advisory, Litigation | No Comments »
Thursday, April 11th, 2013
The Court of Appeal has ruled in Flatman v Germany that a solicitor funding a disbursement does not mean they become a ‘real party’ to the litigation and therefore liable to meet the costs of successful defendants.
Initially, Eady J gave a favourable judgment in the Commercial Court to the insurers stating that on some occasions it may be sufficient that the funder has something to gain alongside the nominal party therefore having an interest in the litigation.
However, the Court of Appeal stated that although the legislation in place does visualise the possibility of the solicitor funding a disbursement it does not automatically mean they incur any potential liability to an adverse costs order. It remains to be seen whether in the post Jackson world further applications may be made to the court where it is felt that but for the backing of a solicitor’s firm the claimant would not have brought the claim.
Posted by Nichola Evans, who specialises in commercial dispute resolution, litigation funding issues including ATE insurance and third party funding; experienced litigator on high value complex litigation claims.
Nichola Evans
0161 242 1306
nevans@brownejacobson.com
Tags: civil procedure rules, costs, CPR, jackson, Jackson reforms, Nichola Evans
Posted in Commercial dispute resolution, Commercial Litigation, employer/public liability, Employers & Public Liability, Employment, Health, Insurance, Insurance - Advisory, Litigation, Local Authorities | No Comments »
Tuesday, April 9th, 2013
Following a recent consultation, The Ministry of Justice has proposed changes to the rules governing the practices of claims management companies (CMCs).
Key changes include ensuring clients sign contracts before any payment is taken by a CMC and any variations to a CMC’s authorisation is notified to clients within 14 days.
Further, CMCs “must advise the client unambiguously of ombudsman schemes or other means of redress” before seeking to enter into a contract. This could include advising a consumer to make a complaint directly to a business or an Ombudsman service and potentially creates a conflict of interest as the best advice may actually be for the claimant to proceed without CMC involvement at all.
Whilst this could reduce the number of claims with CMC involvement, any such reduction may well be offset by the impact of the Jackson cost reforms, which are likely to push more claimants away from lawyers, towards CMCs. For that reason, these additional regulatory requirements are well timed.
Most of the changes will be implemented in July 2013.
Posted by James Gibbons, who specialises in resolving claims against traditional and emerging professions and directors and officers as well as advising on financial services matters and insurance coverage disputes.
James Gibbons
0115 908 4893
james.gibbons@brownejacobson.com
Tags: claims management companies, claims management regulator, CMCs, Jackson reforms, James Gibbons, Ombudsman
Posted in Commercial dispute resolution, Consumer contracts, Insurance, Litigation, Professional Indemnity | No Comments »
Tuesday, March 26th, 2013
The Intellectual Property Office (IPO) is encouraging SMEs (small and medium enterprises) to use its recently introduced mediation service to solve disputes between rights holders and others. However, a rights owner should first consult the IPO website as the service cannot deal with all disputes, such as those concerning:
- distinctiveness of a trade mark
- trade mark opposition and invalidation proceedings on absolute grounds
- IPO decisions like refusal of a patent application.
Experienced mediation providers such as CEDR (Centre for Effective Dispute Resolution) and In Place of Strife are already frequently used and the Law Society and Bar Council also provide information on their qualified mediator members.
The scheme aims to reduce SMEs’ costs of dispute resolution, but common issues such as IP right validity or the need for an injunction may limit this. Rights owners will need to carefully consider its suitability and what outcome they want from any dispute resolution procedure. The IPO scheme will have value, but may not provide an alternative to other mediation services or the courts.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
Tags: Browne Jacobson LLP, CEDR, dispute resolution, mediation, Peter Ellis, SME, UK Intellectual Property Office
Posted in Advertising & Marketing, Brands, Commercial dispute resolution, Commercial Litigation, Data Protection, In-house Lawyers, Intellectual Property, IT Contracts, Licensing | No Comments »
Friday, February 22nd, 2013
Media stories suggesting high-cost cases are to escape new management rules do not depict a true picture.
Costs management is a crucial part of the Jackson reforms. It is suggested that the civil procedure rules will not apply to commercial cases worth more than £2 million and will be exempt from costs management.
The costs Budgeting Direction amending the new CPR 3.12(1) issued by the President of the Queens Bench Division Sir John Thomas, notes that cost management will be used in all cases except where there is good reason not do so.
Although headlines may suggest otherwise, it is likely that costs management will be the norm post-April and should always be considered, even when exceptions are carved out. Anyone who thinks differently may be in for a shock.
Posted by Nichola Evans, who specialises in commercial dispute resolution, litigation funding issues including ATE insurance and third party funding; experienced litigator on high value complex litigation claims.
Nichola Evans
0161 242 1306
nevans@brownejacobson.com
Tags: civil procedure rules, costs management, CPR, Jackson reforms, Nichola Evans
Posted in Commercial dispute resolution, Commercial Litigation, employer/public liability, Employers & Public Liability, Health, In-house Lawyers, Insurance, Litigation, Local Authorities, NHS, Professional Indemnity, Public Sector, Social Care | No Comments »
Friday, February 15th, 2013
Well after all the waiting the new Rules are now available on the legislation website.
We now have the details on qualified one-way costs shifting (QOCS) in the new Part 44. There are new rules encouraging parties to look at settlement under Part 36 with new additional payments payable in appropriate circumstances. The detail is there on cost management with some amendments to the previous draft and a new section on cost capping. There are some new, interesting developments on case management generally with the judges taking a much more pro-active role and with far less scope for parties in default of orders to gain relief from sanction. Parties to litigation will be expected to scope out disclosure far more carefully. And we have new rules on proportionality which place further restrictions on the recovery of costs. We now await the Practice Directions for a little more detail…
Posted by Nichola Evans, who specialises in commercial dispute resolution, litigation funding issues including ATE insurance and third party funding; experienced litigator on high value complex litigation claims.
Nichola Evans
0161 242 1306
nevans@brownejacobson.com
Tags: civil procedure rules, CPR, Nichola Evans
Posted in Commercial dispute resolution, Commercial Litigation, employer/public liability, Employers & Public Liability, Health, In-house Lawyers, Insurance, Litigation, Local Authorities, NHS, Professional Indemnity, Public Sector, Social Care | No Comments »
Friday, February 8th, 2013
Local authorities will be reassured by the judgment in the Montpellier case this week after the bar was set pretty high for a claim to succeed that a change of direction during a procurement exercise is either fraudulent or a breach of the procurement regime.
Leeds City Council proved that their decision to undertake what was an expensive competitive dialogue exercise and to continue with this until it became clear that the private sector option was not proving value for money showed a genuine wish by the Council to award a contract to a private developer if possible.
The Council had given the bidders sufficient information regarding the Public Sector Comparator and opportunities to submit a competitive offer from the private sector proving no lack of transparency or unfairness in the way that the process was run or the bids were considered. Several parts of the claim were time barred: while Montpellier had expressed concerns these had not been formalised by a claim in time.
Posted by Anja Beriro, who specialises in : local authority law, public sector procurements, commercial agreements, projects and shared services; clients: local authority and private sector bodies.
Anja Beriro
0115 976 6589
aberiro@brownejacobson.com
Tags: Anja Beriro, anti-competitive practices, Montpellier
Posted in Commercial dispute resolution, Competition, Fraud, Government, Local Authorities, Procurement | No Comments »
Friday, January 4th, 2013
Until recently the courts took the view that if a complainant accepted the Financial Ombudsman’s final determination (with a statutory limit of £150,000 for any such award) the complainant could not then seek to recover any additional damages by bringing a separate court action.
In the recent case of Clark and another v In Focus Asset Management & Tax Solutions Ltd the High Court has gone against previous judgments and ruled that individuals can seek to claim damages from a financial services provider for an amount in excess of the Financial Ombudsman’s determination by issuing court proceedings to recover the balance.
The Clark judgment may be appealed but in the meantime provides an opportunity for individuals with claims of a high value that are referred to the Financial Ombudsman to seek to recover any balance over the statutory maximum that the Ombudsman can award.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
Tags: damages, Financial Ombudsman Service, financial services, investments, Jonathan Newbold, statutory obligations, Tax
Posted in Commercial dispute resolution, Consumer contracts, Data Protection, Employers & Public Liability, Insurance, Litigation, Professional Indemnity, Regulatory | No Comments »
Thursday, January 3rd, 2013
Golden Eye was licensed on terms to bring copyright infringement proceedings against people alleged to have shared pornographic works.
The High Court did not find this agreement illegal but refused to order O2 to disclose alleged filesharers’ identities as that would ‘endorse’ the agreement, and be ‘tantamount to… sanctioning the sale of the Intended Defendants’ privacy and data protection rights’.
The Court of Appeal disagreed – the licence did not increase the risk to vulnerable defendants, and any information received could only be used for the proceedings.
Although the Media CAT cases suggested courts should put safeguards in place before granting such orders, it is clear from this decision and the Supreme Court’s decision in RFU v Consolidated Information that the courts will order disclosure of individuals’ identities to enable legitimate claims to be pursued.
So, expect more P2P litigation against individuals; though it could still be difficult to prove who actually performed the infringing act and the recovery sought may not reflect the level of damage suffered.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
Giles Parsons
0121 237 4557
gparsons@brownejacobson.com
Tags: Browne Jacobson LLP, copyright, Court of Appeal, Data Protection, Giles Parsons, Golden Eye, High Court, Intellectual Property, Norwich Pharmacal, O2, P2P, Supreme Court
Posted in Commercial dispute resolution, Commercial Litigation, Data Protection, Intellectual Property, Technology | No Comments »
Friday, December 7th, 2012
The Law Society has written to Chris Grayling, Justice Secretary, urging delay to implementation of the civil justice reforms planned for April 2013, describing current plans as a “recipe for chaos”.
Four months from the implementation date, work is still ongoing on many of the regulations and rules required to bring the new regime into effect. The Law Society suggest this creates level of uncertainty that affects the ability of lawyers to advise their clients, generates a risk of satellite litigation, and damages solicitors’ ability to plan for their business.
This hasn’t prevented players like Quindells and Thompsons from pressing ahead with the creation of legal services alternative business structures, in preparation for the post-reform market.
To date, the Government has stuck by its April implementation date, but with many issues to be resolved and the threat of Judicial Review by APIL on some aspects of the reforms, pressure to delay at least parts of the package is mounting.
Posted by James Arrowsmith, who specialises in high value personal injury claims, extensive experience of claims relating to head injuries and serious bodily injury, psychiatric damage and injuries to children.
James Arrowsmith
0121 237 3981
jarrowsmith@brownejacobson.com
Tags: Civil Procedure, jackson, Jackson reforms, james arrowsmith, Ministry of Justice, MOJ
Posted in Commercial dispute resolution, employer/public liability, Health, Insurance, Intellectual Property, Litigation, Local Authorities, NHS, Public Sector, Social Care | No Comments »
Friday, October 19th, 2012
A strong Court of Appeal (with 2 acknowledged experts in intellectual property), has ruled in favour of Samsung over Apple in the battle of the tablets. The Court has ‘dispersed the fog’ that the cloud of litigation created over the alleged infringement of design rights and has clarified the issues in dispute; given valuable advice on the characteristics of the informed user and when a publicity order should be made.
The first instance decision of HHJ Birss QC became notorious in the media after his comparison between ‘cool’ (Apple) and ‘not as cool’ (Samsung). The judgment of the Californian court awarded Apple substantial damages for patent infringement. Finally, the German court granted a pan European interim injunction in respect of the 7.7 Samsung product.
The court held that ‘real commercial uncertainty’ arose causing damage to Samsung’s business and justifying the ruling for a publicity order, requiring Apple to inform the market that Samsung’s product does not infringe its registered designs throughout the European Union.
Posted by Peter Ellis, who specialises in commercial litigation or dispute resolution; intellectual property disputes e.g. trade marks, copyright, designs issues; breach of contract and claims through interruptions to trade.
Peter Ellis
0115 976 6269
pellis@brownejacobson.com
Tags: Apple, copyright, Peter Ellis, Samsung
Posted in Advertising & Marketing, Brands, Commercial dispute resolution, Commercial Litigation, Competition, Intellectual Property, Licensing, Litigation, Retail, Technology | No Comments »
Thursday, October 11th, 2012
The Supreme Court has given judgement in two cases on the question of whether a building used solely for commercial purposes may qualify as a house under the legislation on leasehold enfranchisement (where a tenant of a house can force its landlord to sell the house to it).
In both cases, buildings originally built as houses were being used wholly for commercial purposes in breach of the leases. The court decided that the buildings were not houses “reasonably so called” (as required by the legislation) even though the buildings were designed as houses, may still look like houses and may still be described as houses for other purposes.
This issue arose because of a change in the law in 2002 which removed a residence requirement as a condition of enfranchisement. The decision is to be welcomed, since it can never have been Parliament’s intention to extend the right to enfranchise to commercial tenants (whose security of tenure rights are already protected by a separate piece of legislation).
Posted by Barry Sully, who specialises in specialising in: residential and mixed use development, social housing projects, urban regeneration and site assembly; head of the residential development and social housing team.
Barry Sully
0115 908 4880
bsully@brownejacobson.com
Tags: leases
Posted in Commercial contracts, Commercial dispute resolution, Social Housing | No Comments »
Wednesday, October 3rd, 2012
The Department for Transport’s (DfT) decision to abandon awarding the West Coast Main Line rail franchise to FirstGroup highlights the difficulties of running major procurements and in particular evaluating bids.
The financial modelling used to evaluate the financial promises made by bidders here would have been extremely complex. However, even in simpler procurements, contracting authorities should take time to ensure the evaluation scheme they use actually works before being sent to the market.
Running a test set of information through marking schemes will often throw out any difficulties before you get the real information from bidders. Checking and effectively moderating the evaluation carried out must be done before releasing the decisions to bidders. Building in time for effective moderation will be time well spent in the long run.
This has proved an expensive mistake for the DfT which other contracting authorities should learn from. Procurement challenges are not just time consuming and costly but if successful can also bring considerable political discomfort to those involved.
Posted by Peter Ware, who specialises public procurement and local authority law; advises both public and private sectors in relation to European procurement regime, projects and complex, commercial contracts.
Peter Ware
0115 976 6242
ptware@brownejacobson.com
Tags: department for transport, Peter Ware, Virgin Trains
Posted in Brands, Commercial contracts, Commercial dispute resolution, Competition, Procurement, Projects & partnerships | No Comments »
Wednesday, September 19th, 2012
A tax tribunal has struck down a Stamp Duty Land Tax (SDLT) saving scheme, which used a combination of an unlimited company as the intermediate purchaser and a distribution in specie of the property by the company to the end purchaser.
The Tribunal’s main grounds were (i) the distribution in specie had been unlawful under the Companies Act, and (ii) applying a purposive interpretation of the SDLT sub sale relief legislation at s45(3) Finance Act 2003, as to what could be caught as chargeable consideration for SDLT purposes.
The decision highlights the recent approach of the courts in challenging tax avoidance. We expect further challenges to sub-sale SDLT schemes by HMRC.
It also highlights the risks posed to advisers which could ultimately impact on professional indemnity insurance for those professionals involved in promoting, implementing and advising on such schemes.
Finally, the facts of this case took place before the introduction of the general SDLT anti-avoidance legislation which further strengthens HMRC’s position against schemes such as these.
Posted by Jonathan Newbold, who specialises in professional negligence, financial services and commercial dispute resolution; advises insurers on policy wording and coverage matters.
Jonathan Newbold
0115 976 6581
jnewbold@brownejacobson.com
Tags: hmrc, Jonathan Newbold, stamp duty, tax avoidance schemes
Posted in Commercial dispute resolution, Fashion & Luxury Retail, In-house Lawyers, Professional Indemnity, Property, Retail, Tax | No Comments »
Wednesday, September 5th, 2012
Optical Express has failed to get the domain name opticalexpressruinedmylife.co.uk transferred to it.
The Nominet Expert decided that the domain name was a genuine criticism website; so although Optical Express was found to have relevant rights in a name or mark similar to the domain name, it could not be characterised as an “Abusive Registration”.
This is in contrast to a previous decision in which ihateryanair.co.uk was ordered to be transferred to Ryanair. In that case, receiving advertising revenue from the site was sufficient to render the registration abusive.
The Expert in opticalexpressruinedmylife.co.uk suggested this approach could be “somewhat harsh” but in any event, the registrant of opticalexpressruinedmylife.co.uk had not sought to profit from the domain.
This decision emphasises that the right to criticise is important to free speech and shows that brand owners may not be able to use the Nominet DRS to shut down genuine criticism sites, although there will still be routes available in the courts to prevent defamation or Trade Mark infringement.
Lauren Millward
0115 908 4864
lmillward@brownejacobson.com
Tags: domains, freedom of speech, Lauren Milward, Nominet, reputation management, trade marks
Posted in Advertising & Marketing, Brands, Commercial dispute resolution, Commercial Litigation, Litigation, Retail, Technology | No Comments »
Friday, July 27th, 2012
The Court of Appeal has clarified the complicated issue of bringing claims against employers who have gone out of business.
In Peaktone Ltd v Joddrell the claimant obtained an order under the Companies Act 2006 s.1029 to restore his former employer who had been dissolved and struck off the register of companies so that he could pursue a claim for noise-induced hearing loss. The defendant applied to have the claim stuck out.
The Court held that the effect of section 1032 was broad and enabled it to make directions “for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved or struck off the register.” The effect of this was to retrospectively validate an action purportedly commenced by or against a company during the period of its dissolution.
The decision, though tough on defendants, gives clarity to what has been a problematic area for many.
Posted by Steven Conway, specialising in: defence of claims on behalf of insurers, local and public authorities, in particular employers’ and public liability claims.
Steven Conway
020 7337 1037
sconway@brownejacobson.com
Tags: companies act 2006, damages, hearing loss, litigation, Steven Conway
Posted in Commercial dispute resolution, Employment, Insurance, Local Authorities | No Comments »
Thursday, July 12th, 2012
Whilst a successful defence entitles defendants to recover costs on a standard basis the courts do have discretion to consider all the circumstances including the conduct of the parties.
Platform Funding Ltd v Anderson & Associates Ltd highlights the importance in litigation cases of not only making the right offer early but also willing to explore an amicable compromise even when there is a reasonably good prospect of a successful defence.
In Platform the court awarded indemnity costs based on the premise of a “walk away’ offer in the form of Calderbank letter made within 2 months of the litigation commencing. A Calderbank letter is a letter which is marked “without prejudice save as to costs” and is aimed at offering to settle a claim for a specified sum. The court also considered the clear intention of the defendant during the litigation to seek a compromise and the unwillingness of the claimant to do so without there first being a monetary offer on the table.
Posted by Peter Westlake, who specialises in non contentious and contentious building, construction and engineering, domestic and international, including adjudication, arbitration, litigation, mediation and professional indemnity insurance.
Peter Westlake
0115 976 6545
pf-kwestlake@brownejacobson.com
Tags: Calderbank letter, Commercial Litigation, compromise agreements, Platform Funding Ltd v Anderson & Associates Ltd, settlemant agreements
Posted in Commercial dispute resolution | No Comments »
Friday, July 6th, 2012
The Ministry of Justice has published its annual employment tribunal statistics for the period up to 31 March 2012.
- There were a total of 186,300 claims, representing a 15% decrease on the previous year. Single claims fell by 2% while there was a reduction of 19% in multiple claims.
- unfair dismissal claims have fallen from 47,900 to 46,300
- The number of claims disposed of reached 110,800, representing a 10% decrease on the previous year.
- Of the claims disposed of by the employment tribunals: 12% were successful, 33% were the subject of Acas settlements and 27% were withdrawn.
This drop in figures is likely to come as relief to employers. Whether claims continue to drop remains to be seen, with the introduction of two years’ service to qualify for unfair dismissal, employees may look to bring discrimination or whistleblowing claims which are generally lengthier in duration.
Posted by Gemma Steele, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Gemma Steele
0121 237 4561
gsteele@brownejacobson.com
Tags: employment tribunal, Ministry of Justice, statistics, unfair dismissal
Posted in Commercial dispute resolution, Employment, Litigation | No Comments »
Wednesday, May 9th, 2012
The Court of Appeal has given useful guidance on the issue of interim costs awards pending a final outcome of a large trade mark litigation matter, as part of the ongoing litigation between Specsavers v Asda.
The court felt it was appropriate (despite Asda arguing costs should be reserved pending the outcome of its application for permission to appeal to the Supreme Court) that although costs had not yet been formally assessed, Specsavers be awarded their costs, subject to a substantial discount to reflect the issues upon which it had lost as the court had already made a final determination of all issues concerning liability; except those specific issues referred to the Court of Justice of the European Union, for which costs must be reserved.
This pragmatic decision confirms that successful parties in a case should not have to wait unduly for their costs; however a win overall does not guarantee an award of costs for those specific issues they have been unsuccessful on.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
Tags: Asda, Court of Appeal, Laura Mackenzie, litigation, Specsavers, trade marks
Posted in Commercial dispute resolution, Litigation | No Comments »
