A step towards compulsory alternative dispute resolution?
The Court of Appeal has held that the courts have powers to make parties subject to a form of alternative dispute resolution (ADR) without their consent.
Does your dispute resolution clause work?
It is now standard in commercial contracts to include a dispute resolution clause setting out the hoops the parties must jump through in the event that a dispute arises under the contract.
Potential issues remain with introduction of Infrastructure levy
Fraser Mitchell, planning partner in the real estate team at Shoosmiths in Edinburgh considers the potential issues with plans to introduce Scotland’s first Infrastructure Levy Regulations.
Employment law: Plans in the Pipeline
Consulting on proposals to introduce new employment rights has been an important government initiative in recent months. This article summarises some of the key proposals.
Common pitfalls in handling redundancies
Redundancies are commonplace as organisations grow and contract, move location and reorganise. Handling redundancies is not always straightforward and there are some common pitfalls which employers fall into when dealing with redundancy situations.
How to draft secondment agreements
Our drafting masterclass series continues with a look at alternative working arrangements – namely, secondments, sabbaticals, fixed term roles and zero hours arrangements. In this article, we discuss the key factors in drafting a secondment agreement.
Consequences of an adjudicator disregarding the agreed facts
The losing party in an adjudication often looks for a way to avoid enforcement of a decision in court. A breach of natural justice may provide such a defence. When can it be used?
Personal data breaches by employers – when do you have to own up?
Do you as employer and data controller have to report all personal data breaches to the ICO and/or the data subject? Do your processors need to tell you when they suffer a breach? In this article, we consider the extent of an employer’s obligations.
Recovering debts in a post Brexit Britain
This article looks at the possible impact for Credit Managers on our upcoming exit from the EU, and how they will recover debts from EU customers.
Major change: the VAT reverse charge for building and construction services
The domestic reverse charge - referred to as the reverse charge - is a major change to the way VAT will be collected in the building and construction industry.
So you think you’ve blown the whistle and the boss is mad, now what?
When an individual makes a protected disclosure (aka ‘blows the whistle’) they should not be subjected to a detriment or dismissed as a result. This article explores when ‘whistle-blower’ protection can be relied on by an employee or worker.
Which breaches of contract result in a right to terminate?
Most commercial contracts, including property contracts, include a right to terminate for one or both parties in the event of breach. As the ultimate recourse for an aggrieved party, courts are often asked to interpret termination rights.
Quarter 3: Employment Case Law Update
For the next installment in our quarterly case law series, we look back at some of the key cases since April 2019 and the lessons which we can learn from them.
The work of the Standing International Forum of Commercial Courts
This article introduces you to the work of the Forum, established in 2017 and bringing together over 35 judicial representatives from across the globe to share best practice and to assist the effective resolution of commercial disputes.
SFO struggles to prosecute individuals following a DPA
The recent acquittal of the Sarclad executives throws into doubt the prosecution of individuals following a deferred prosecution agreement (DPA) and the suitability of the DPA process as a whole.
Landowner fails to make out intention to redevelop under the Telecoms Code
The Upper Tribunal has given its first decision concerning intention to redevelop under the Electronic Communications Code 2017, holding that a landowner had not demonstrated the requisite intention.
Qualcomm fined €242 million for abuse of dominance
In its first predatory pricing case since 2003, the European Commission has fined tech firm Qualcomm €242 million for abusing its dominant market position by engaging in predatory pricing in relation to its 3G baseband chipsets.
Consultation issued on abolition of assured shorthold tenancies
The government has published a consultation seeking views on implementing its proposal to end no-fault evictions of residential tenants, which will have the effect of abolishing assured shorthold tenancies entirely.
Notice provisions – don’t get caught out…
Clauses requiring a party to give notice are commonly used in construction contracts and yet these provisions continue to catch parties out.
To petition or not to petition, that is the question
Against the backdrop of the insolvency of Scottish companies carrying on business in India, a recent decision of the Inner House of the Court of Session has considered the competency of seeking declaratory orders in petition procedure.
When worlds collide – which belief is right?
One person’s belief is another one’s extremism, one person’s faith is another one’s bigotry: in this article we explore where the boundaries might lie when an employer faces a clash between two protected characteristics.
Shoosmiths’ sector experts comment on Green Finance Strategy
Following the government’s 2050 net zero carbon pledge, it has now published the Green Finance Strategy.
How to Draft Consultancy Agreements – Part 3
In the final article in our “how to draft consultancy agreements” series, we take a look at some common problem areas which businesses need to be alert to.
Turning housing on to support electric vehicles
This week the government has published two consultations in relation to electric vehicle charging infrastructure, following the road to zero strategy published in July 2018.
ESG and investment governance for pension scheme trustees
The Pensions Regulator has updated its Investment Governance guidance for DC schemes to reflect recent changes in legislation, requiring trustees to set out their policies on environmental, social and governance (ESG) issues when making investment decisions.
Heads of terms can form a binding contract
The High Court has held that heads of terms agreed at a mediation are capable of amounting to a binding contract that the court will uphold.
Nitrate pollution concerns halt housebuilding
Five local authorities in the Solent area have put a hold on determining planning applications for new housing as a result of advice from Natural England about nitrate pollution.
The tenant that never was
The grant of a lease to a non-existent tenant highlights the importance of checking that companies in a transaction are registered at Companies House.
Hypothetical arguments and the Planning Court
Two recent Planning Court decisions have re-examined the extent to which the Planning Court is prepared to become involved in claims which raise purely “academic” arguments.
Breaching the GDPR won’t fly with the ICO
This week’s announcements by the UK’s Information Commissioner’s Office (ICO) of its intention to fine British Airways and Marriott International £183M and £99M respectively, has not come as a surprise to many.
Government legislates in bid for net zero carbon emissions
The government has amended the Climate Change Act 2008 to set a target of achieving net zero carbon emissions by 2050.
Canon fined €28million for “gun-jumping”
Canon, the Japan-based imaging and optical products manufacturer, has been fined €28million for partially implementing its acquisition in Toshiba Medical Systems Corporation (TMSC) before notification to and approval by the European Commission breaching EU merger control rules.
Ground rents to be outlawed for new residential lettings
The government has issued its response to last autumn’s consultation on its proposed ban on the sale of leasehold houses and on outlawing ground rents in new residential lettings.
Limber up for rate reform
Rate reform has been high on the FCA agenda since 2013, arising out of the financial crisis in 2007. And this year will see Finance House Base Rate (FHBR) disappear. In this article, we consider what firms should be doing now to prepare for this.
What are a step-parent’s rights in divorce?
Step-parents are often portrayed in popular culture as distant, malevolent influences – you only have to think of Snow White to get a picture of the archetypical “evil step-mother”.
Changing family structures could complicate holiday plans
The changing nature of family structures and the rise of ‘blended’ families and couples choosing not to marry means it is not unusual for a parent to have a different surname to their dependent children.
What do employers need to consider before suspending an employee?
Suspending an employee in response to allegations of misconduct can impact on the subsequent disciplinary process and result in claims for breach of contract and/or constructive dismissal.
Gender stereotyping: stamping it out
Gender stereotyping and equality has become a prevalent and often debated subject in recent times. It therefore comes as no surprise that this hot topic has caught the attention of the Advertising Standards Authority (ASA), the body that administers UK advertising codes and regulates the industry.
Employing International students
The rules around employing international students whilst they are still studying, the position when their course has finished and the steps needed to be able to retain them are complex. We consider these areas, the common pitfalls and how to avoid them!
How to draft Consultancy Agreements – Part 2
In this, our next article in the series looking at drafting consultancy agreements, we focus on key terms to include in the agreement once an organisation has decided that the individual is to be engaged as a consultant.
New residential landlords need to re-register deposit
A recent case has held that a change of landlord triggered the requirement for new deposit information to be given to residential tenants.
Warning to employers of the financial cost of discrimination
The Employment Appeal Tribunal has recently declared that a one-off act of discrimination can fall into the middle band of injury to feelings award, significantly increasing the potential financial exposure to employers.
Building Magazine article on transferred loss
In this month’s Building Magazine, our partner Ian Yule has been discussing the principle of transferred loss.
LIBOR no more: Effects on lender and borrower arrangements
LIBOR (the London Inter-bank Offered Rate) will cease to be available from the end of 2021. Here we look at some of the implications for lenders and borrowers.
Should employers equalise shared parental pay with maternity pay?
In a judgment which will reassure many employers, two male employees, who argued that their respective employers’ failure to pay enhanced shared parental leave was an act of sex discrimination, have had their claims dismissed by the Court of Appeal.
BIC v Burgess: pension increases were not validly introduced
The Court of Appeal has overturned the High Court decision in Burgess v BIC, finding that increases to pensions in payment had not been validly introduced.
Agreeing contact with children in divorce
When a relationship breaks down parents will need to reach an agreement on the arrangements for their children.
Will consultation on short-term lets lock some doors?
In a recent round-table discussion of hot topics in Scottish property law, keen interest was sparked by the Scottish Government’s consultation on a regulatory framework for short-term lets.
The ‘Hidden Epidemic’ of Sexual Harassment of LGBT+ People in the Workplace
The Trades Union Congress (TUC) has reported that nearly seven in ten lesbian, gay, bisexual, and trans (LGBT+) people have been sexually harassed at work.
Interpreting the term ‘detailed planning permission’ in an overage agreement
A recent case has highlighted the risk of using a term in an overage agreement that does not have a precise technical meaning in planning law.
Happy Pride Month to all
Every June, Pride Month is celebrated across the world to honour the 1969 Stonewall Riots and to recognise the impact that LGBT+ individuals have had on history locally, nationally and internationally.
Impact of sentencing guideline on regulatory fines
The impact of the Health and Safety, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline (the “Guideline”), introduced on 1 February 2016, has recently been analysed in a Sentencing Council report (impact assessment).
Court guidance on contracting out commercial leases
The High Court has adopted a robust approach in a rare case involving the contracting-out procedure under the Landlord and Tenant Act 1954 that was introduced 15 years ago.
Keeping children safe in divorce
Divorce introduces massive change into the life of a child, no matter what age. Adjusting to going back and forth between two different households, the daily absence of one parent while living with the other, creates a challenging new family circumstance.
Tenant granted relief from forfeiture, despite a deliberate breach of covenant
A court has granted relief from forfeiture to an insolvent tenant of a long lease, despite the tenant’s deliberate breach of a keep open covenant.
How to Draft Consultancy Agreements – Part 1
Our drafting masterclass series continues with a look at consultancy agreements. In this article we focus on those factors which need to be considered and addressed before embarking on the drafting of such agreements.
CVAs and Stays
Can a Creditors Voluntary Arrangement (CVA) lead to a stay in the enforcement of an adjudicator’s decision?
Flexibility v. Certainty: Working Time Woes
According to the European Court of Justice last week, employers must have, “an objective, reliable and accessible system enabling the duration of time worked by each worker to be measured”. We look at what this judgment means for businesses in practice.
Top Tips for Employers: Mental Health Awareness Week
With Mental Health Awareness week taking place this week, it is even more important to maintain good principles of managing mental health in the workplace, and at all times hereafter. As an employer, what action could you take?
What is Kefalah? – A legal primer on Islamic adoption
Kefalah is the Islamic equivalent of legal adoption as defined by the Adoption and Children Act 2002 (ACA 2002). Here, we explore the differences between the two.
Government guidance on GMP equalisation and conversion
Just before Easter (18 April 2019), the DWP published its ‘guidance on the use of the Guaranteed Minimum Pension (GMP) conversion legislation’.
Quarter 2: Employment case law update
For the next installment in our quarterly case law series, we look back at some of the key cases from the past three months and the lessons which we can learn from them.
Updating the Code for Leasing Business Premises
The Royal Institution of Chartered Surveyors (RICS) is consulting on a new edition of the Code for Leasing Business Premises (the Code).
An end to ‘no-fault’ evictions of residential tenants
The government has announced proposals to stop landlords ending residential tenancies on a no-fault basis.
Reducing stress on relationship breakdown
April is Stress Awareness month, co-incidentally happening just as divorce laws in England and Wales are to be overhauled to enable a couple to end their marriage more easily and put an end to fault-based petitions.
Settlement Agreements – commonly negotiated terms
In this article, the third and final guide to drafting settlement agreements in our masterclass series, we focus on those extra terms which are most commonly sought by both the employer and the employee and the limitations which might be placed on them.
Yet further complexity to be added to stamp duty rules for residential property?
HM Treasury has recently published a consultation document in relation to a proposed 1% Stamp Duty Land Tax (SDLT) surcharge for non-UK residents purchasing residential property in England & Northern Ireland.
Telecoms Code: Tribunal clarifies who is entitled to grant a Code Agreement
The Upper Tribunal has, for the first time, dismissed a reference to it under paragraph 20 of the Code and ruled that a Code Agreement can only be sought from a person who is the ‘occupier’ of land.
Concierge wins £1.3m from heiress despite pre-nup
A hotel concierge who married an Avon Cosmetics heiress has been awarded £1.3million despite having signed a pre-nuptial agreement.
Amended MEES rules for residential landlords now in force
Recent changes made to the MEES regulations may require residential landlords to spend up to £3,500 of their own money per property in order to improve the energy efficiency of their portfolios.
The price is right – or is it?
Key pricing provisions are often hidden away in the schedules to commercial contracts. This article highlights the importance of ensuring they are properly drafted at the outset, to avoid later disputes as to how they should be interpreted.
Generic challenge stands up as dosing patent flops
In a UK Supreme Court judgment, ICOS Corporation and Eli Lilly’s patent for a dosing regime for tadalafil, a second in class erectile dysfunction drug, was found to lack inventiveness.
Springing forward – a look ahead to changes in employment law from April 2019
April is always a key time for employers as the Government introduces a raft of changes to annual pay rates and looks ahead to upcoming proposals for reform.
Does the Gender of Your Divorce Lawyer Make a Difference?
Often we see or hear of clients asking for a divorce lawyer of a specific gender to represent them.
Unravelling judgments – fraud and the courts
Most people will be familiar with the mantra that “fraud unravels all” and that judgments obtained by deploying fraudulent evidence will not be allowed to stand. This was recently put to the test by a 7-member panel in the Supreme Court case of Takhar v Gracefield Developments Limited and others  UKSC 13.
Residential lease reform gathers pace
A new Select Committee report recommends more widespread reforms of residential leases.
Sorting out the final account
Experienced employers and their advisers will know that a project that is all finished apart from the main contractor’s final account is not finished at all. Discussions on the final account can drag on for months or years.
Proceeds of sale of school site lost due to operation of reverter
The closure of a school prior to its sale meant the use for which the land had originally been given had ceased and so the proceeds of sale did not belong to the local authority.
Conservation covenants – the government consultation
The government is consulting on Law Commission proposals to introduce a new form of “conservation covenant” to enable long term conservation schemes to be implemented.
Drafting settlement agreements - required terms
In this article, our second of three guides to drafting settlement agreements, we focus on the terms and clauses that are an absolute necessity for inclusion in a settlement agreement.
Care home providers get new guidance from the CMA on terms of service
The Competition and Markets Authority (CMA) has issued guidance for care home providers to assist with compliance under both the Consumer Protection from Unfair Trading Regulations 2008 and the Consumer Rights Act 2015.
Gas safety certificate must be provided before start of residential tenancy
A second case confirms that a landlord who fails to provide a gas safety certificate before the start of a residential tenancy cannot later terminate the tenancy by using a section 21 notice.
The changing face of non-disclosure agreements
Business Minister Kelly Tolhurst has announced that the rules surrounding non-disclosure agreements (NDAs) and confidentiality clauses will become more restrictive. We look at the proposed changes and how these could impact employers.
CMA cracks down on anti-competitive cover bidding
On 1 March 2019, the Competition and Markets Authority (CMA) announced that six office fit-out firms have admitted to infringing competition law by engaging in cover bidding in competitive tenders, colluding on the prices they would bid for contracts.
Government response on Pensions White Paper
The government has published its response to its consultation on the pensions White Paper (Protecting Defined Benefit Pension Schemes).
A common and costly mistake - wage and benefit over payment
Mistakes happen. Despite rigorous payroll and HR processes and procedures sometimes the paperwork is delayed, goes astray, or a keying error occurs. If an individual is still employed repayment can be relatively straight forward. But what if they are not?
Collective enfranchisement: extent of common parts
A recent case has decided that a basement, sub-soil and airspace were common parts for the purposes of a claim under the Leasehold Reform, Housing and Urban Development Act 1993.
The practical implications of Brexit for lenders and borrowers part 3
In the previous articles in this series we focussed on the practical implications of Brexit for lenders and borrowers, and their finance agreements. In this article we consider the position of EU law on UK finance arrangements going forward.
The practical implications of Brexit for lenders and borrowers part 2
In the first article in our series we focussed on the practical implications of Brexit for lenders and borrowers, and their finance agreements. In this second article, we consider more specific impacts on the legal documentation and what points to look out for under your facilities agreement.
The practical implications of Brexit for lenders and borrowers
We have all seen and heard the constant commentary about Brexit, but we want to focus in this first article in our three-part series on the practical implications for lenders and borrowers, and their finance agreements.
Tenant Fees Act 2019 is passed
The Tenant Fees Act 2019 is intended to make residential letting fairer and more affordable for tenants by reducing costs at the outset of a tenancy.
Repair of iconic tower enforced by specific performance
A court has enforced the landlord’s repairing obligation relating to Beetham Tower, requiring it to find a permanent solution to failing glass panels.
Paving the way for adverse possession
A claim for adverse possession of a paved forecourt was successful even though the area was not fenced or enclosed.
Celebrating LGBT History Month: We’ve come a long, long way together...
February is LGBT History Month, which is an annual event intended to promote a diverse and inclusive modern society and to provide education and insight about the history of the gay rights movement and issues faced by the LGBT+ community.
TUPE case law update
In this article we look back at some key cases and updates from the last few months involving TUPE and the lessons which we can learn from them.
Self-Help or Self-Harm?
Divorce rule changes mean that using the ‘self-help’ remedy to obtain full and verifiable financial information could be harmful if the correct procedures are not followed.
Apprenticeship Levy update – are you about to start throwing money away?
When the levy was launched in 2017 it was billed as a major step towards improving the efficiency of the UK economy. Two years on, apprenticeship starts have declined and time is running out for employers to make use of hundreds of millions of pounds.
Telecoms Code: Consideration and compensation finally under the judicial spotlight
We have the Tribunal’s first view on how money should be shared between operators and landowners on the grant of Code rights.
A huge challenge: voluntary registration of local authority land
The Land Registry is actively working with the public sector to help achieve its aim of comprehensive registration of all freehold land by 2030.
Brexit does not frustrate a lease
European organisations cannot argue that Brexit means that they can walk away from their leases.
How settlement agreements work and when to use them
Our drafting masterclass series continues with a look at settlement agreements. We will consider how settlement agreements work and when to use them, key terms and common negotiation points.
Discontinuance Costs in Arbitration Appeals
Sections 67 – 69 of the Arbitration Act 1996 (the Act) provide the bases on which an arbitral award may be appealed. In all cases, the bar to a successful challenge is very high. Who pays the costs of the litigation if the appeal is discontinued?
Stamp Duty Land Tax: important changes from 1 March 2019
From 1 March 2019, the period allowed in England and Northern Ireland for filing a Stamp Duty Land Tax return and paying the tax reduces from 30 days to 14 days.
An Exercise in Futility
A party on the receiving end of an adjudication is usually in a difficult position. Its situation is only made worse if the referring party is insolvent.
The implications of a no-deal Brexit for divorce
Following the ‘meaningful vote’, the historically huge defeat of the existing Brexit deal in the House of Commons and the ongoing constitutional contortions, it’s still unclear what Brexit will finally look like.
Homes (Fitness for Human Habitation) Act 2018 is passed
A new act aims to boost standards in rented homes and give tenants more power to hold their landlords to account.
Quarterly employment case law update
In this article we take a look back at some of the key cases from the past three months and the lessons which we can learn from them.
Drug testing in the workplace: a warning for employers
The recent tribunal case of Ball v First Essex Buses Limited has demonstrated just how careful employers must be when conducting investigations and instigating disciplinary proceedings against employees who have fallen foul of a drugs test in the workplace.
Scottish Land and Buildings Transaction Tax: changes from 25 January 2019
The Scottish government has approved plans to change Land and Buildings Transaction Tax (LBTT) rates and bands for non- residential transactions and to increase the rate of the Additional Dwelling Supplement (ADS).
#MeToo: Risks for liability insurers and their insureds
One year on from #MeToo, Bloomberg estimates at least 425 prominent people across industries had been publicly accused of sexual misconduct.
Zero-hours contracts – common pitfalls for employers
Zero-hours contracts can be a positive part of work-life balance if they offer genuine two-way flexibility,” says Matthew Taylor, the government’s lead reviewer of modern working practices.
Property owner prosecuted for spread of Japanese knotweed
Bristol City Council has used its powers under the Anti-Social Behaviour, Crime and Policing Act 2014 to prosecute a property owner for allowing the spread of invasive plant species Japanese knotweed.
Restrictive covenant modification also widens easement
The Upper Tribunal (Lands Chamber) has held that the modification of a restrictive user covenant authorised a corresponding change in the permitted use of a right of way.
Drafting Employment documents: a new series for 2019
During 2019 we will be providing a series of articles on how best to draft certain commonly used legal documents within the human resources arena. This follows the success of last year’s Breaking Down the Handbook series, focusing on preparing policies and procedures for staff handbooks.
What impacts will a no deal Brexit have on data protection?
In a no deal Brexit, what rules will apply to privacy, data protection, direct marketing and electronic communications?
How to avoid an unnecessary DPIA
A Data Processing Impact Assessment (DPIA) is a process designed to help organisations systematically analyse, identify and minimise the data protection risks of a project or plan.