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Part 1: What is the SMCR?

Published on 23 October 2018.

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The Senior Managers & Certification Regime (“SMCR”) will replace the FCA’s existing approved persons regime and represents a paradigm shift in the financial services industry in the UK.

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Reflections on the UK Bribery Act seven years on

Published on 23 October 2018. By Davina Given, Partner and Lucy Kerr, Senior Associate

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Following the appearance of RPC's Sam Tate at the annual IBA conference earlier this month, where he joined a panel of experts discussing Corruption and Corrupt Contracts, here are our reflections on how the Bribery Act has changed the landscape of bribery offences and corporate criminal liability, first published by the IBA earlier this year and now updated.

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Professional Game Match Officials – football referees not employed for tax purposes

Published on 22 October 2018. By Ben Roberts, Senior Associate

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In Professional Game Match Officials Ltd v HMRC [2018] UKFTT 528, the First-tier Tribunal (FTT) has held that football referees and other match day officials were not employees of Professional Game Match Officials Ltd (PGMOL).

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Stephen Hawking's big questions for Life Sciences

Published on 19 October 2018. By Peter Rudd-Clarke, Legal Director

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Stephen Hawking's posthumously published "Brief Answers to the Big Questions" is a fascinating foretelling of legal challenges that the life sciences sector may face.

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HMRC cannot require an auditor to provide information regarding a taxpayer's audited accounts even if the auditor also acts as the taxpayer's tax accountant

Published on 19 October 2018. By Adam Craggs, Partner

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In HMRC ex parte a Taxpayer [2018] UKFTT 541 (TC), the First-tier Tribunal (FTT) has held that paragraph 24, Schedule 36, Finance Act 2008 (FA 2008), protects a taxpayer's auditor, who also prepares and files the taxpayer's tax returns, from having to disclose information and documents to HMRC regarding the taxpayer's audited accounts.

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Information requirements to change under European communications contracts

Published on 18 October 2018. By Marlon Cohen, Senior Associate

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The rules around what needs to be provided to consumers under communications contracts are going to be changing under the new European Electronic Communications Code. This will have implications for consumer contracts provided by communication providers in Europe, including broadband, voice and "over the top" providers.

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Publication

Corporate tax update

18 October 2018

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Welcome to the latest edition of our Corporate Tax Update, written by members of RPC’s tax team and published quarterly. In this third 2018 edition we highlight some of the key tax developments of interest to UK corporates from the third quarter of 2018.

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FCA proposes FOS award limit increase to £350,000

Published on 17 October 2018. By David Allinson, Senior Associate and Ashley Daniells, Associate

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The FCA has announced plans for an increase in the current FOS compensation cap. Currently standing at £150,000, the changes would see the limit increase to £350,000, an increase of 133%. It is also proposed that the limit will further increase automatically each year in line with inflation.

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Blog

Oil or nothing: Court of Appeal considers damages in continuing misrepresentation claim

Published on 16 October 2018. By Harriet Evans, Associate and Davina Given, Partner

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The Court of Appeal recently held that a director who had made continuing fraudulent misrepresentations was liable for damages calculated at the point of sale and not at the point of entering into the contract. This judgment is a reminder that, in the right case, deceit may be used to pierce the corporate veil. It also highlights the considerations when assessing damages regarding continuing representations, particularly when there is time between the representation being made and the performance of the contract.

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Blog

Done Brothers – supplies through fixed odds betting terminals exempt from VAT

Published on 15 October 2018. By Michelle Sloane, Senior Associate

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In Done Brothers (Cash Betting) Ltd v HMRC [2018] UKFTT 406 (TC), the First-tier Tribunal (FTT) has held that supplies made through fixed odds betting terminals (FOBT) are exempt from VAT.

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Blog

What's next for the FCA after Brexit?

Published on 10 October 2018. By Ashley Daniells, Associate

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Brexit - you can rarely go a day without hearing this word. But what does it mean in real terms for financial professionals? The FCA has acknowledged that a looming Brexit will have implications for how the FCA works in the future and has begun to discuss its plans.

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Blog

Meet your new loss adjustor: the drone

Published on 10 October 2018. By Leah Wood, Trainee Solicitor

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Listed by Lloyd's in 2016 as an 'emerging risk', drones have caught insurers' attention in the last few years. However, the potential benefits for the industry go further than the new capital received from premiums.

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Atherley - qualifying loan write off created an allowable loss

Published on 08 October 2018. By Robert Waterson, Partner

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In Douglas Atherley v HMRC [2018] UKFTT 0408 (TC), the First-tier Tribunal (FTT) has found that the taxpayer's partial writing-off of a loan made to a company of which he was the sole shareholder, created an allowable loss under section 253(3), Taxation of Chargeable Gains Act 1992 (TCGA).

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Court of Appeal enforces fraudster’s claim against lawyers

Published on 08 October 2018. By Nick Bird, Partner

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In Stoffel & Co v Maria Grondona the Court of Appeal applied Lord Toulson’s judgment in Patel v Mirza to permit a fraudulent mortgagor to enforce her claim against her conveyancing solicitors. There may though be stronger grounds for the defence in other claims against professionals.

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Blog

The Latin American challenge – a London market perspective

Published on 08 October 2018. By Alex Almaguer, Senior Associate

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If the London market wants to maintain its leadership in the region, London reinsurers need to look at ways to improve direct communication with local players.

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Blog

Relief for Skilled Persons as the Court of Appeal rules they are not amenable to judicial review

Published on 04 October 2018. By Davina Given, Partner and Lucy Kerr, Senior Associate

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In what circumstances might skilled persons appointed under FSMA be subject to judicial review? The Court of Appeal recently explored the vulnerability of skilled persons to judicial review and dismissed an application for judicial review against KPMG, acting as a skilled person on behalf of Barclays Bank, as it found the framework in which KPMG operated was not sufficient to bring it into the public law arena.

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Blog

SFC Disciplinary Action – Customer/Personal Data

03 October 2018

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On 20 September 2018, the Securities and Futures Commission (“SFC”) banned an individual named Ngo Wing Chun from re-entering the industry for 12 months (the “Decision”) for having taken the personal data of approximately 995 customers from his employer and emailed it to his personal email. The evidence showed that none of the information had been disclosed to any third parties.

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Publication

Tax update October 2018

03 October 2018

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In this month’s update we report on HMRC’s Spotlight 45 on umbrella company avoidance schemes, an update to HMRC’s Venture Capital Schemes Manual; and call for evidence on HMRC powers.

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Blog

ESMA renews restrictions on CFDs and binary options

Published on 02 October 2018. By Lucy Kerr, Senior Associate

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The European Securities and Markets Authority (ESMA) has decided to renew intervention measures, which restrict the sale of contracts for difference (CFDs) and binary options to retail investors, for a further three months.

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Blog

Newton – Tribunal confirms that "statutory records"  should be narrowly construed

Published on 01 October 2018. By Heather Rimmer, Associate

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In Newton v HMRC [2018] UKFTT 513 (TC), the First-tier Tribunal (FTT) has held that, due to the lack of taxpayer appeal rights, the definition of "statutory records" for the purpose of an information notice issued pursuant to Schedule 36, Finance Act 2008 (FA 2008), must be construed narrowly.

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Publication

Health and safety update September 2018

28 September 2018

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Welcome to the latest edition of our health and safety update where we look at the health and safety stories that have recently hit the headlines as well as the latest fines and sentences that have been handed down.

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CJEU proves even easy copyright cases make bad law

Published on 27 September 2018. By Paul Joseph, Partner

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Commentary on the recent CJEU decision in Renckhoff C-161/17 about the communication to the public right.

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Blog

Force Majeure – specificity is vital – Seadrill v Tullow

Published on 26 September 2018. By Parham Kouchikali, Partner

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Force majeure clauses in contracts must be clear on the events that can excuse a party from fulfilling its obligations. Inability to perform under the contract must be wholly caused by that event. So said the High Court in the case of Seadrill Ghana Operations Ltd v Tullow Ghana Ltd.

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Publication

VAT update September 2018

26 September 2018

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In this month’s update we report on the ECON committee’s amendments to the European Commission’s proposal for simplification of VAT for SMEs, the government’s technical note on the impact on VAT in the event of a no-deal Brexit; and Revenue and Customs Brief 6 (2018) on VAT exemption for all domestic service charges.

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Blog

High Court warns directors to get match fit for new reporting regulations

Published on 25 September 2018. By Geraldine Elliott, Partner and Matthew Evans, Senior Associate

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It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.

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Blog

Expion: No valid determination of penalties by HMRC

Published on 24 September 2018. By Constantine Christofi, Associate

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In Expion Silverstone Ltd v HMRC [2018] UKFTT 0460 (TC), the First-tier Tribunal (FTT) has held that no valid determination was made by an officer of the board under section 100, Taxes Management Act 1970 (TMA), in respect of penalties issued following the failure to file Employment Intermediaries returns.

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Blog

<連載コラム・欧州M&A最前線>2018年7月

Published on 21 September 2018. By Nigel Collins, Partner, Head of Japan Desk

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日本と違いロンドンでは気候が変わり、全般的にずいぶんと涼しくなった。この夏は長く異例の暑さったが、M&A市場もそれに負けない熱気を帯びた。当社各部門も多忙を極め、今なお次々とM&Aや投資の取引が成立している。今のところ、この活況は夏が終わっても続きそうな勢いだ。(ナイジェル・コリンズ/M&A専門弁護士)

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Blog

Treasury Committee Calls for Cryptocurrencies to be Regulated by the FCA as a Matter of Urgency

Published on 21 September 2018.

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The House of Commons' Treasury Committee published its report on Crypto-assets on 19 September 2018. The report strongly recommends that cryptocurrencies and ICOs be considered regulated activities in the UK as a matter of urgency. But realistically, when can we expect the crypto-market to be regulated in the UK?

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Blog

Section 1782 order allowed

Published on 18 September 2018. By Jonathan Cary, Partner and Alan Williams, Partner

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The Commercial Court recently discharged an injunction restraining the enforcement of a US court order made under Section 1782 of Title 28 of the US Code (Assistance to foreign and international tribunals and to litigants before such tribunals). Section 1782 applications can be a useful weapon in an English litigator's armoury as a means of obtaining evidence under the control of a US-based entity through US-style discovery, including by the use of depositions and documentary evidence.

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The Modern Slavery Act 2015 – Under Review

Published on 13 September 2018. By Jeremy Drew, Partner and Amelia Cave, Associate

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Earlier this summer the Home Office announced plans to launch an independent review of the Modern Slavery Act 2015. The Act came into force in October 2015 and established the UK as a world leader in the fight against the crime of modern slavery.

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Blog

Graham - holiday letting business qualified for business property relief

Published on 13 September 2018. By Alexis Armitage, Associate

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In The Personal Representatives of Grace Joyce Graham (deceased) v HMRC [2018] UKFTT 0306 (TC), the First-tier Tribunal (FTT) has held that a furnished holiday letting business did not consist wholly or mainly of making or holding investments and so qualified for business property relief (BPR).

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Negligent misstatement and undisclosed principals – a gamble not worth taking

Published on 11 September 2018. By Parham Kouchikali, Partner and Emma West, Associate

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The Supreme Court recently ruled that a bank providing a reference relating to its customer owed a tortious duty of care only to the addressee. The decision reflects the wider judicial trend of restricting the circumstances in which duties of care for negligent misstatement are found to exist on the basis of an assumption of responsibility by the party making the statement.

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Armstrong: Tribunal cancels late filing penalties

Published on 10 September 2018. By Robert Waterson, Partner

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In Armstrong v HMRC [2018] UKFTT 0404 (TC), the First-tier Tribunal (FTT) has cancelled late filing penalties because the taxpayer had not consented to receive penalty notices electronically.

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Implications of the Modern Slavery Act 2015 on UK and overseas businesses

06 September 2018

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Partner Jeremy Drew and Amelia Cave discuss the current Modern Slavery Act 2015 and why businesses in the UK and overseas should be mindful of its provisions.

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Blog

Our latest legal 'Snapshot' updates are now available

Published on 06 September 2018. By Alyson Lloyd, Senior Associate and Jonathan Greenway, Associate

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Each Snapshot focuses on the key questions: What's the development? Why does it matter? And what should you be doing about it? In this blog post we have handpicked the ones which matter most to you as retailers.

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Publication

Tax update September 2018

06 September 2018

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In this month’s update we report on HMRC’s updated position regarding payment of the April 2019 “loan charge”, HMRC’s updated guidance on the targeted anti-avoidance rule for close company distributions on a winding up and the CIOT’s comments on off-payroll working in the private sector. We also comment on recent decisions relating to, late filing penalties, an application by HMRC to amend its Statement of Case and tax geared penalties for failure to comply with information notices.

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Breaking news – a victory for privilege

Published on 05 September 2018. By Davina Given, Partner and Jonathan Cary, Partner and Alan Williams, Partner and Lucy Kerr, Senior Associate

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Today the Court of Appeal handed down its eagerly anticipated judgment in the appeal of Andrews J's controversial High Court decision in Serious Fraud Office v Eurasian Natural Resources Corporation.

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ISDA agreement wins jurisdiction clause battle in Court of Appeal

Published on 04 September 2018. By Parham Kouchikali, Partner and Christopher Whitehouse, Senior Associate

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The Court of Appeal recently confirmed that an English jurisdiction clause in the underlying International Swaps and Derivatives Association Master Agreement under which certain swaps were made should be applied to disputes relating to the swap transactions, rather than an Italian jurisdiction clause in a competitor agreement governing the parties' generic relationship

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Publication

Corporate tax update

Published on 31 August 2018. By Ben Roberts, Senior Associate and Adam Craggs, Partner and Robert Waterson, Partner

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Welcome to the latest edition of our Corporate Tax Update, written by members of RPC’s tax team and published quarterly. In this second 2018 edition we highlight some of the key tax developments of interest to UK corporates from the second quarter of 2018.

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Pertemps: Expenses salary sacrifice scheme not an economic activity for VAT purposes

Published on 31 August 2018. By Alexis Armitage, Associate

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In Pertemps Limited v HMRC [2018] UKFTT 0369 (TC), the First-tier Tribunal (FTT) has held that a salary sacrifice scheme providing travel and subsistence expenses to employees was not an economic activity for VAT purposes.

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Product liability update August 2018

30 August 2018

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A round-up of key stories making the news, from the Potential impact of US litigation in the UK to a case involving injuries arising from caustic soda.

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Fake news is bad news for patients

Published on 30 August 2018. By Peter Rudd-Clarke, Legal Director

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Gee v DePuy International Limited shows that fake news in the healthcare sector is bad news for the public

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VAT update August 2018

29 August 2018

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In this month’s update we report on HMRC’s revised guidance on the VAT cost share exemption, HMRC’s consultation and plans to address VAT avoidance via offshore looping, and making tax digital for VAT.

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Blog

The Retail empire strikes back

Published on 29 August 2018. By Alex Farrow, Associate

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Like Rocky in Rocky I, II, III, IV, V and "Rocky Balboa" (yes, there were really that many) the retail sector has taken a bit of a battering of late. However, like any prize fighter, the industry could be on the verge of another evolution and fighting back. The general perception is that traditional bricks and mortar retailers have struggled, those with a strong online offering have fared better, but retailers that have fared best are those dominating the online retail space. With so many traditional stores and household names in trouble, why are businesses still investing in physical stores?

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Publication

Customs and excise quarterly update August 2018

Published on 29 August 2018. By Adam Craggs, Partner and Michelle Sloane, Senior Associate

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In this update we report on changes to gaming duty accounting periods, HMRC’s policy paper on tobacco duty on heated tobacco and an amendment to the Export (Penalty) Regulations 2003. We also comment on three recent cases relating to the customs classification of Beyblades, excise duty assessment time limits and restoration of seized tobacco.

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Blog

How long does your collateral warranty last?

29 August 2018

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The Technology and Construction Court's recent judgment will be of interest to all those in the industry who either provide or receive collateral warranties.

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Football club's entire agreement clause performs impressive save against negligent misrepresentation claim

Published on 28 August 2018. By Geraldine Elliott, Partner

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A recent case(1) serves as a lesson that context is key to a watertight entire agreement clause.

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J P Whitter - HMRC not obliged to consider impact of cancellation of Gross Payment Status on business

Published on 23 August 2018. By Constantine Christofi, Associate

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In J P Whitter (Water Well Engineers) Ltd v HMRC [2018] UKSC 31, the Supreme Court has confirmed the view of the Court of Appeal that HMRC has the power to remove 'Gross Payment Status' from sub-contractors under the Construction Industry Scheme, without an obligation to take into account the impact on the tax-paying business.

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<連載コラム・欧州M&A最前線>2018年6月

Published on 23 August 2018. By Nigel Collins, Partner, Head of Japan Desk

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サッカーのワールドカップ(W杯)で、イングランドと日本が共に見事な活躍を見せ、熱い感動を与えてくれた後、ロンドンで夏のきらめきを楽しんでいる。「もしあのとき…」という思いが胸を過ぎる。日本が後半戦の最後の10秒に、ベルギーを振り切っていたら。イングランドが前半で、クロアチアから奪った得点を守っていたら。日本の会社に例えるならば、千載一遇のチャンスを逃さないことが、ビジネスを成功に導くのだと思う。

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Blog

Non-party access to documents on court file: normal service resumes

Published on 22 August 2018. By Davina Given, Partner and Laura Evans, Associate

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A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was reviewed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group).(1) In its judgment, the court provided helpful guidance on the principles that should be applied when deciding whether to allow such an application.

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