Latest by Daniel Hemming
High Court clarifies new witness evidence rules and requirement for list of documents under Practice Direction 57AC
Only list the documents used to refresh the memory of the witness, use the statement of best practice as a checklist and follow the principles of the practice direction: these are some of the main points arising out of the decision in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 (TCC), the first decision to give substantial guidance on the new witness statement rules under Practice Direction (PD) 57 AC.
Read moreNo best endeavours order where documents are out of party's control
The High Court considered in Various Airfinance Leasing Companies & Anor v Saudi Arabian Airlines Corporation(1) whether a party could be obliged to seek disclosure from the personal mobile devices of its ex-employees (i) on the basis that documents on the phones were within the party's control; and (ii) alternatively, by using its best endeavours to seek disclosure. The application was dismissed as the court found that the documents were not within the "control" of the party as a matter of Saudi law and that there was no power to compel best endeavours to seek disclosure of documents outside a party's control.
Read moreWhat's up with disclosure? The pilot goes into a new phase from November
November ushers in a brand new phase for the disclosure pilot with several substantive amendments being made to the rules.
Read moreHigh Court finds agency relationship and 'control' for purposes of disclosure where third party not authorised to sign contract for principal
In Quartz Assets LLC and another v Kestrel Coal Midco Pty Ltd [2021] EWHC 2675 (Comm), the High Court held that a third party authorised to conduct contractual negotiations on behalf of the Defendant, but not sign the contract, was acting as an agent, and that relevant documents which it had created were therefore in the Defendant's control and ought to be disclosed. The decision emphasises that the courts will consider substance over form when determining whether an agency relationship exists, and constitutes a reminder of the definition of 'control' for the purposes of disclosure.
Read moreWhen will the court step in to correct a contractual mistake?
Only if contractual provisions are "nonsensical or absurd" will the Court intervene to correct mistaken drafting. The Court of Appeal recently considered this issue in the context of a dispute between a landlord and tenant in MonSolar IQ Ltd v Woden Park Ltd.(1)
Read moreWhen can "deliberate concealment" postpone limitation periods?
The Court of Appeal has explored the meaning of "deliberate concealment" in Canada Square Operations Ltd v Potter(1) and has held that there need not be "active steps of concealment" for the start of a limitation period to be delayed under s.32(1)(b) Limitation Act 1980.
Read moreThe Court of Appeal provides useful reminder of the force of the "subject to contract" label in the context of settlement negotiations
A Part 36 offer does not alter the status of "subject to contract" protection in solicitors' correspondence settling a dispute.
Read moreLate service of evidence requires relief from sanctions
An application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under CPR 3.9 according to the High Court in Wolf Rock (Cornwall) Ltd v Langhelle
Read moreLIBOR: Litigation risks in the endgame?
In 2021 we will bid farewell to LIBOR and welcome in SONIA. The two systems work in different ways, with LIBOR looking forward and SONIA looking back.
Read moreWaiving goodbye to privilege – reliance is key
In what circumstances will a party waive privilege over legal advice by referring to it in evidence?
Read more
What expenditure falls within ‘ordinary and proper course of business’ exception in freezing orders?
The cost of pursuing related arbitration proceedings and fighting extradition proceedings could be costs incurred in the ‘ordinary and proper course of business’ according to the Court of Appeal in Koza Ltd v Koza Altin.(1)
Read moreLessons learned from Property Alliance Group v RBS
This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.
Read moreEssar v Norscot: the landmark decision third party funding has been waiting for?
The Commercial Court rejected an application to set aside an arbitral award entitling the respondent to its costs of third party litigation funding on the ground of serious irregularity. It also held that the Arbitration Act 1996 power to award "legal and other costs" included the costs of litigation funding.
Read moreHigh Court rejects interest rate swap misselling claim
In Thornbridge Limited v Barclays Bank PLC the High Court considered a claim for the missale of an interest rate swap based on several different causes of action, all of which were unsuccessful.
Read moreRepudiation: dentist's breach does not go to the root of the contract
The Court of Appeal has determined that the actual and threatened breach by a dentist of the payment terms (requiring payments to be made monthly) for the use of a practice, was not a repudiation of the contract and the principal was wrong to terminate the contract.
Read moreMisrepresentor remains in firing line following change of counterparty
In Cramaso LLP v Ogilvie-Grant, Earl of Seafield and others[i] the Supreme Court considered whether a party could be liable for a negligent pre-contractual misrepresentation in circumstances where the party to which the representation was originally made was not the ultimate contracting party.
Read moreHigh Court confirms that general principles of contractual construction apply to 'misnomer principle'
In Liberty Mercian Limited v (1) Cuddy Civil Engineering Limited (2) Cuddy Demolition and Dismantling Limited
Read moreTaxpayers are entitled to organise their affairs so that the minimum amount of tax is paid!
The recent decision of the First-tier Tax Tribunal ('FTT') in James Albert McLaughlin v The Commissioners for HM Revenue and Customs1, is a timely reminder that taxpayers are perfectly entitled to organise their affairs so that the minimum amount of tax is paid.
Read moreWhen is a document within a taxpayer's "possession or power"?
HMRC have a range of powers available to them under Schedule 36 of the Finance Act 2008 ("Schedule 36") to require persons to produce documents and information and to inspect premises.
Read moreA Voyage of Discovery: two recent Court of Appeal decisions
In December of last year, two differently constituted panels of the Court of Appeal handed down important judgments on the discovery provisions contained in sections 29 and 30B Taxes Management Act 1970 ('TMA 1970').
Read moreIs the net really closing on Swiss bank accounts?
HMRC announced last week that they will shortly be writing to UK resident individuals and organisations holding bank accounts with HSBC in Geneva, using information obtained under a tax treaty last year.
Read moreThe Taxman vs. the Treasury Select Committee: round 2
Following his first outing before the House of Commons' Treasury Select Committee in March, and the publication of the Committee's report in July (see my previous post), Dave Hartnett, the Permanent Secretary for Tax, returned on 12 September to answer further questions from MPs.
Read moreHMRC opens its books to mortgage lenders
Having been first announced in the March 2010 Budget and following a pilot, the mortgage verification scheme, a joint venture between HMRC, the Council of Mortgage Lenders and the Building Societies Association, was finally launched at the start of the month.
Read moreSFO to request tax records
The SFO warned last week that companies suspected of paying bribes to win work overseas may be forced to hand over their tax records, in the hope that these may yield evidence of such bribes.
Read moreIs the tide turning? HMRC lose discovery assessment appeal
Concern has been building for some time amongst taxpayers and their advisers about HMRC's apparently unfettered use of discovery assessments.
Read more"Unacceptable" HMRC under fire from Treasury Select Committee
The House of Commons' Treasury Select Committee (the "Committee") recently released its report entitled "Administration and effectiveness of HM Revenue and Customs" (the "Report").
Read moreGoing backwards? Retrospective legislation can bite!
Retrospective legislation is a particularly hot topic at the moment.
Read moreCOP that! HMRC propose a new contractual disclosure facility
On 20 July 2011, HMRC published a discussion document entitled: Civil Investigation of Fraud – Contractual Disclosure Facility.
Read morePartnership residence – a rallying cry!
An important decision of the First-tier Tribunal has been released in the case of Mark Higgins Rallying (a firm) v. Revenue & Customs [2011] UK FTT 340 (TC).
Read moreSupreme Court decision in Tower MCashback
The Supreme Court's eagerly awaited decision in Tower MCashback has now been released (the importance of the case is reflected in the fact that it was considered by seven Supreme Court Justices).
Read more