News


Enforcement of financial remedy orders: Part 1. Latest article from family finance barrister Zoë Saunders

Zoë SaundersZoe Saunders, a member of our family finance, ToLATA and inheritance team, has published an article on the enforcement of financial remedy orders in the June edition of Family Law.

Statistics on enforcement of financial remedy orders are almost impossible to obtain, partly because the options for enforcing court orders are rather a mish-mash of general civil remedies. Anecdotally the majority of orders are complied with either wholly or mostly, but those which are not present the practitioner with a complex series of options, which may or may not be suitable in any specific case; so if you have an order which needs to be enforced what are your options?

If you subscribe to Family Law, you can read the full http://www.topphentermineonline.com article here: Enforcement of financial remedy orders: Part 1

A copy of the full http://www.topphentermineonline.com article will be available to download from Zoë’s profile in September.

Zoë is a family finance practitioner who has expertise in financial remedy cases involving multiple properties, trusts, complex pensions, partnership disputes, companies and corporate and personal insolvency as well as both big and small money cases and the particular challenges presented by each. Zoë also has experience of cases involving confiscation orders and Proceeds Of Crime Act (POCA) issues.

“Zoë is completely straightforward with her advice and is fearless in undertaking challenging cases.” Chambers UK, Family/Matrimonial (2016)

If you would like to instruct Zoë on a related matter please email her clerks on:

 

Coroners’ inquests: defining the inquisition – Latest article from David Regan

David Regan

David Regan, member of our inquests team, has written an article in this week’s Solicitors Journal on coroners’ inquests, emphasising the importance of taking up the opportunities available ahead of the hearing to define the issues to be examined and thus the evidence to be led.

View profile: David Regan

If you would like to speak to David on any inquest matter, please e-mail: .

The Competition Appeal Tribunal: a new venue for challenging restrictive covenants?

Matthew O'Regan

In his latest article, Matthew O’Regan our competition law specialist, considers how competition law may be used as a means of challenging the validity of restrictive covenants contained in land transfer agreements, leases and business sale agreements. In particular, he considers the use of a new ‘fast track’ procedure in the Competition Appeal Tribunal, which may be a quick and relatively low-cost alternative to High Court proceedings, particularly for individuals and micro, small and medium-sized enterprises.

Restrictive covenants are a common feature of business sale and property transfer agreements. In many cases, these will not restrict competition. However, in some circumstances, they may do so and be at risk of challenge by the party bound by the covenant.

A recent case brought in the Competition Appeal Tribunal (“CAT”), Shahid Latif and Mohammed Abdul Waheed v Tesco Stores,[1] which settled at an early stage, demonstrates that the CAT (and not the High Court) may be an appropriate venue for challenging anti-competitive covenants contained in business sale or property transfer agreements that infringe the Competition Act 1998 (“the Act”).

The claimants in Shahid Latif availed of a new procedure, known as the ‘fast track’ procedure, which enables claims brought under the Act to be brought quickly and at low cost, in particular by individuals, micro-businesses and small and medium-sized enterprises (“SMEs”).

Restrictive covenants in business sale and land agreements

When a business is sold or ownership of property is transferred, it is common for the vendor to be subject to a restrictive covenant.

A business vendor may be restricted from competing with the purchaser for a particular period, whilst the vendor or transferor of land may be restricted from using any retained property for specific purposes. Such covenants are intended to protect the value of the goodwill acquired by the purchaser. It is equally possible, although less common, that the purchaser may agree not to compete with the vendor’s retained business.

Similarly, covenants in commercial property leases may restrict either the landlord (in respect of retained premises) or the tenant (in respect of the demised premises) in the use to which the relevant premises may be put. The landlord may be prevented from using or leasing retained premises (for example, other units in a shopping centre) to companies that compete with the tenant. Alternatively, the tenant may be restricted in the goods or services it can sell from the demised premises.

The Act prohibits anti-competitive agreements and concerted practices (the ‘Chapter I prohibition’: s.2) and the abuse of a dominant position (the ‘Chapter II prohibition: s.18). A restrictive covenant is an agreement for the purposes of s.2 of the Act. Where a dominant undertaking imposes a covenant upon another undertaking, this may potentially constitute abusive behaviour for the purposes of s.18.

Many such covenants will not restrict competition, although in some circumstances they may do so. Much will turn on the facts of the individual case. However, in terms of general principles:

  • in business sale agreements, a covenant accepted by the vendor that is in excess of three years’ duration (or which is broader in product and/or geographic scope than that of the business being sold) will generally be considered not be ‘ancillary’ to the transaction and will likely restrict competition. Covenants accepted by purchasers are generally considered to restrict competition, as they do not have any objective justification and are likely be regarded as a ‘hard core’ illegal market-sharing agreement.
  • covenants in property transfers and leases may have anti-competitive effects if they have, actually or potentially, appreciable negative effects on competition by excluding (‘foreclosing’) competitors from the relevant market (for example grocery retailing in a town) and do not have countervailing benefits for consumers (and thus does not benefit from an exemption).[2]

[1]  Case No 1247/5/7/16. A summary of the Claim is available at: http://www.catribunal.org.uk/files/1247_Latif_Summary_180216.pdf.

[2]  This is considered in more detail in my recent article, European Court of Justice provides guidance on when provisions of property leases may be anti-competitive, which considers the CJEU’s judgment in SIA ‘Maxima Latvija’, EU:C:2015:784 and an earlier County Court judgment in Martin Retail v Crawley Borough Council (24 December 201 3, unreported).

Download full article here: The Competition Appeal Tribunal: a new venue for challenging restrictive covenants?

If you would like to instruct Matthew O’Regan on a related matter please email his clerks on:

Company and Commercial team produce the first of a new series of contract law case law updates

Nicholas PointonSt John’s Chambers welcomes the first of a new series of contract law case law updates produced by our company and commercial team.

These updates aim to provide an invaluable resource for keeping up to date with the most important developments in contract law. In this first edition, Nicholas Pointon covers some of the key cases from the last six months. From here the team intend to produce a quarterly update designed to keep you in the know.

Our aim is to select a combination of the most groundbreaking contract law cases together with those which helpfully restate existing principles or contain useful clarifications in areas of practical importance.

Each case discussed will feature an “In brief…” summary panel, designed to allow those in a hurry to take the most useful points from each case. No case will occupy more than two pages of the update in total. Although authored by a litigator, attempts will be made where possible to identify useful points for the non-contentious practitioner too.

Download June edition: Contract law case law update

Nicholas Pointon (2010 call) specialises in commercial and contractual disputes and has taught the subject of contract law at both undergraduate and postgraduate level at the University of Bristol. He is ranked as a leading junior for commercial dispute resolution in Chambers UK 2015 and 2016. He regularly gives seminars and in-house training on issues of contract law and will happily discuss requests to do so.

If you would like to instruct Nicholas on any company and commercial matter, please contact .

Chambers achieve 3rd place at Taunton’s Dragon Boat Race

Dragon Boat RaceSt John’s Chambers and their friends took part in the Taunton Dragon Boat Race on Sunday 5th June, raising £1,200 for Headway Somerset.

Spurred on by the glorious summer sunshine and a determination to make it into the finals, Team St John’s achieved a well earned 3rd place. A thrilling final which included a few bumps and scrapes with the other boats resulted in a tight finish with little difference between the times. The team did St John’s proud however coming in at a new record time of 57.41 beating local solicitor firms Foot Anstey LLP by 0.09 seconds and Clarke Willmott who picked up the wooden spoon but won the fancy dress prize. Well done to all the teams participating and bring on the challenge for 2017.

Headway Somerset is the brain injury charity which is dedicated to supporting people who have sustained a brain injury together with their families and carers.

We continue to support this extremely worthwhile charity and our efforts have seen us being awarded Fundraiser of the Year in 2012 by Headway Somerset.

View video filmed by Somerset County Gazette.

Finance Barrister, Andrew Commins is now a contributing author (family finance) to the Family Court Practice (Red Book) 2016

“Indispensable. It is the single book that every family practitioner and every family judge must have.”  Sir James Munby

Andrew Commins of our family finance team is a contributor to the The Family Court Practice (Red Book), recently published by Jordan Publishing. His remit covers all law and procedure governing financial remedy on divorce, Schedule 1 applications and claims pursuant to TLATA 1996.

This new edition of the book is fully updated to include the latest case-law, full coverage of new and amended legislation, Practice Directions and guidance.

The Family Court Practice (Red Book), covers the entire range of family business and contains all the essential materials you need to practise in the Family Court.

For more details or to purchase your copy, visit this page

As well as practising as a family finance barrister, Andrew also offers solicitors of represented clients two bespoke forms of ADR in family finance disputes: the Represented Mediation and the Private Financial Dispute Resolution Meeting. These forms of ADR offer cost-effective, quality and responsive alternatives to lengthy and costly court proceedings.

Download brochure: Alternative Dispute Resolution

If you would like to instruct Andrew on any family finance matter, please contact .

Power Play: Latest article from Adam Boyle

Adam Boyle

Specialist commercial and chancery barrister Adam Boyle looks in detail at the judgment in Miles & Beattie v The Public Guardian, in which Adam acted for the appellants. While the decision in Miles empowered the makers of LPAs and their solicitors, a change in the relevant LPA forms has left the law in a state of confusion in respect of what can safely be specified about joint powers of attorney.

This article first appeared in the May 2016 edition of PS, the magazine of the Private Client Section of the Law Society

The law concerning lasting powers of attorney (LPAs) is currently in a confusing state. This is somewhat surprising, given that Mr Justice Nugee, sitting in the High Court, has already adjudicated upon the key issue that is once again at the centre of attention: when a joint power of attorney comes to an end, through the death (or other invalidation) of one of the attorneys, is it possible to re-appoint, through advance specification in an LPA, the remaining initially appointed co-attorney, such that, going forward, they, acting alone, can make the decisions which previously had been made by the two together? This relatively nuanced issue was raised before the court in the case of Miles & Beattie v The Public Guardian [2015] EWHC 2960 (Ch). One of the driving forces behind the appeal was the firmly held view of the solicitor for the appellants, David Satchell of Amicus Law (who instructed me as counsel in the case for the appeal), that the position which had been taken by both Office of the Public Guardian (OPG) and Senior Judge Lush at first instance was simply not fair on his clients. The reason for this is best explained through an example. I have chosen the following scenario because I expect that a large number of people are in a vaguely comparable situation, and/or have vaguely comparable views.

EXAMPLE

Let us say that there is a mother who has two sons, A and B. She has no other children or other relatives to speak of, and, in contemplation of her old age, she turns her mind to creating LPAs. The two most important decisions, in her view, to be included in the LPAs and potentially made on her behalf are:

1. when / if a life support machine keeping her alive is to be turned off; and

2. when / if her long-held family home is to be sold.

She wishes to appoint her sons as her attorneys; it is her two sons that she trusts the most. In respect of nearly all the decisions they are able to make, she is content for the decisions to be made on a joint and several basis, meaning that either son can make the relevant decision. However, in respect of the most important decisions, as outlined above, she wants to require, as at least a first preference, that her sons make the relevant decisions jointly. In other words, she wants them to be in agreement in respect of the decisions which are of the most importance to her. However, and this is key, she is also clear in her mind that if one of her two sons were to predecease her unexpectedly (or be otherwise prevented from acting as her attorney), rather than her remaining son being rendered powerless in respect of these most important decisions, or it falling to someone whom she neither loved nor trusted in the same way to make them for her, she would like her remaining son to be able to make the relevant decisions alone. In other words, if A dies, she wants B to carry on the job that both of them were previously doing together. This, one would think, is an entirely predictable and reasonable state of affairs. However, as indicated above, it had been both the approach of the OPG and the decision of Senior Judge Lush that this was, in effect, not something which could be achieved through an LPA. Indeed, this was the decision at first instance in relation to both Miles’s and Beattie’s LPAs. In the scenario outlined above, such a decision clearly poses a real problem.

MILES’S LPAS

It will be helpful to set out the key parts of Miles’s LPAs in order to explain the case. Those parts are as follows (with the parts severed by the court on appeal struck through).

Download full article here: Power Play

If you would like to instruct Adam on any related matter please contact his clerks:

 

St John’s Chambers supports Action for Brain Injury Week 2016

Our members and staff  have been taking part in a number of fundraising activities raising money and awareness for The Child Brain Injury Trust and Headway Bristol during Action for Brain Injury Week 2016. Action for Brain Injury week, which ran from 9th – 15th May, is an annual campaign to raise awareness of the devastating effects of brain injury.

Grand Cycle Challenge

Ben Handy (personal injury barrister) and Marcus Coates-Walker (pupil) took part in the Grand Cycle Challenge during Action for Brain Injury Week 2016

The fundraising kicked off with our buffet lunch for members and staff in support of The Child Brain Injury Trust’s #GetTogether campaign. This campaign highlights the difficulties many children face socialising with a brain injury. A brain injury can have a big impact on socialising as a child or young person, whether it is a change in friendship groups, feeling too tired to socialise or forgetting plans that were made.

The sun made an appearance for our team of cyclists for the Headway Bristol Grand Cycle Challenge. Glyn EdwardsJames Hughes and Ben Handy of our personal injury team, Philip Robson of our planning team, and Pupil Marcus Coates-Walker, were one of many teams on static bikes across Bristol aiming to collectively cycle 575 miles, the equivalent of riding from London to Lyon. The teams smashed this target and covered an amazing 1000 miles raising nearly £2000! There is still a chance to sponsor the team, if you would like to do so please click the link below.

The temperature increased as our team of runners took to the streets of Bristol for the Great Bristol 10k race on Sunday 15th.  Louise O’Neill, Kamala Das and Lucy Reed of our family team, Adam Boyle and Richard Gold of our chancery team, Richard Mawhinney of our personal injury team, Clerks Charlotte Fryer and Hugh Maguire and Pupil Marcus Coates-Walker took part in the Great Bristol 10k raising funds for The Child Brain Injury Trust and Headway Bristol. Despite the heat, all of the team made it past the finish line and have currently raised £305 – there is still a chance to sponsor the team, if you would like to do so please click the link below.

As well as these fundraising activities our personal injury and clinical negligence teams hosted a Catastrophic Injury Claims Seminar on the 12th May. Leading catastrophic injury barristers Christopher Sharp QC and Richard Stead presented a 1.5 hour CPD seminar on catastrophic injury claims, which was attended by over 30 delegates. This seminar covered recent developments in catastrophic quantum claims, accommodation claims and interim payments. Delegates entered a prize draw on the night to win a delicious food hamper, with all proceeds going to Headway Bristol. The seminar has been described as “excellent, very informative.” and “very good, a thorough update and overview of both topics, as usual.” Some notes from the seminar can be downloaded from the link below.

Christopher Sharp QC also published an article entitled “Responsibility and culpability? Children and contributory negligence”. This article was published in conjunction with Action for Brain Injury Week. In this article leading personal injury and clinical negligence Silk Christopher Sharp QC , discusses responsibility and culpability in contributory negligence cases involving children. This paper was originally presented at the Cerebra National Conference 2015 and this revised article has been updated to include further case law.

Read full article here: Responsibility and culpability? Children and Contributory Negligence

Sponsor our Grand Cycle Challenge team here
Sponsor our Great 10k team here

Download notes: Recent developments in catastrophic quantum claims

Charlie Newington-Bridges successful in the High Court defending a £1m misrepresentation claim

Charlie Newington-BridgesCommercial Dispute Resolution barrister, Charlie Newington-Bridges, instructed by Richard Gore at Gregg Latchams Limited, has successfully defended Mr David Beeny, a former accountant, against a misrepresentation claim worth c. £1m in the case of Beeny v Ghersie & MG Associates Limited.

The claim was brought by Michael Ghersie and MG Associates Limited (‘the defendants’). The defendants had purchased Mr Beeny’s accountancy business in Dartmouth, Devon in 2010. In a first trial on liability, David Blunt QC sitting as Recorder in the High Court found that the defendants owed Mr Beeny over £220,000 arising from the sale and purchase agreement (‘the SPA’) entered into by the parties. However, the defendants had counterclaimed that Mr Beeny had misrepresented certain matters to them and that as a consequence they had suffered losses of £1m. The Judge also found that Mr Beeny had made a misrepresentation to the defendants.

In the second trial on misrepresentation in dispute were issues of causation and loss. The question of causation focused on whether the alleged losses included losses which could not be attributed to the misrepresentation even if the misrepresentation was causative of the defendant’s acquisition of the business. As regards loss, the parties disputed the date at which losses should be calculated and whether the defendants would have entered into an agreement to purchase the business on the same terms as contained in the SPA even if there had been no misrepresentation.

Mr Beeny prevailed at trial on the issues of causation and loss. Mr Recorder Blunt QC held that Mr Beeny was not liable to pay the defendants anything in relation to the misrepresentation claim. The Judge found that the defendants’ quantum claims had no merit or were entirely too speculative. Mr Recorder Blunt QC also held that the losses claimed were not a result of Mr Beeny’s representations, so causation was not made out. In any event, the Judge found that the date from which the defendants alleged the losses should be calculated could not be substantiated. Mr Recorder Blunt QC therefore found that the defendants were not entitled to recover any damages.

Download judgment: Beeny v Ghersie & MG Associates Limited

If you would like to instruct Charlie on any related matter, please contact his clerks: .

Responsibility and culpability? Children and contributory negligence

Christopher SharpTo what extent can children be held responsible for injuries sustained by another’s negligence?

Leading Personal Injury and Clinical Negligence Silk Christopher Sharp QC , discusses responsibility and culpability in contributory negligence cases involving children in his latest article originally presented at our Cerebra National Conference 2015. This revised article has been updated to include further case law and is published in conjunction with Action for Brain Injury Week 2016*.

The 2015 decision of the Supreme Court in Jackson v Murray [2015] UKSC 5, although primarily concerned with the role of the appellate court in reviewing a discretionary judgment of an inferior court, highlighted the difficulties facing courts both in England & Wales and also in Scotland in assessing the responsibility of children for their actions when those children are pursuing actions for damages. This paper will consider the current approach and its jurisprudential basis while comparing the approach in some other common law jurisdictions

Who is a “child”?

The Family Law Reform Act 1969 reduced the age of majority to 18, and anyone under that age is, of course, a “child” whose involvement in the litigation process is covered by the provisions of CPR Part 21.

The terminology can be confusing since the Family Law Reform Act 1969 provides that a person who is not of full age may be described as a minor instead of as an infant, and the term ‘minor’ has been used in a number of statutes passed between 1969 and 1989. However, in the Children Act 1989 the term ‘child’ is used throughout, and is defined as a person under the age of 18. Much of the earlier child welfare and related legislation was repealed by the Children Act. However in the Children and Young Persons Acts 1933 to 1969, ‘child’ generally means a person under the age of 14 years and for certain purposes those Acts refer to a person who has attained the age of 14 and is under the age of 18 years as a ‘young person’. Moreover, the various offences commonly known as cruelty to children are in most cases offences in connection with children and young persons under the age of 16 years. In Scotland a child is, for most legal purposes, someone under 16.

The Animals Act 1971, s.2 attributes the knowledge of an animal’s dangerous characteristics by a member of the household ‘under the age of 16’ to the head of the household as ‘keeper’ (of the animal – not the child!).

In this country a person can drive at least a moped as well as (eg) http://www.eta-i.org/sildenafil.html some tractors (including trailers) from the age of 16, and cars and motor cycles from 17. Cases like Nettleship v Weston (below) make clear that a person driving a vehicle on the roads has to meet an objective standard of competence and there is no discount for beginners.

The age of consent is 16, and a young person can marry at that age with parental consent.

It is, perhaps, relevant also to bear in mind that the law recognises that a young person below the age of 16 may (or may not) have a degree of maturity and understanding to form important judgments in respect of his or her own actions and their consequences: see eg Gillick v West Norfolk & Wisbech Area Health Authority[1985] UKHL 7. There is therefore accepted, in this context at least, that there is a degree of flexibility and a subjective assessment of such competence.

In the circumstances, for current purposes the age of a child is likely to be a relevant consideration when he or she is 16 or less. Over that age the relevance will depend very much on the circumstances.

The position of a child in negligence 

At common law a child was regarded as of ‘immature intelligence and discretion’ and therefore required protection eg in respect of the formation of contracts, but not to any great extent in the field of negligence where much the same standard of care was expected of a child as of an adult, until well into the 20th century. The contributory negligence of a child was (as it was for an adult before 1945) a complete defence. While children under the age of about 4 were not expected to exercise care for themselves as if adults, the fault could then transfer to the parent or guardian, whose “contributory” negligence would be an absolute defence to an action on behalf of the child1 . In these circumstances the law before the 1945 Act is of limited assistance to any modern analysis.

Continue reading full article here: Responsibility and culpability? Children and contributory negligence

*Action for Brain Injury week 2016 runs from 9th – 15th May, it is a national campaign to raise awareness of the devastating effects of brain injury. During Action for Brain Injury Week St John’s Chambers is supporting Headway Bristol and The Child Brain Injury Trust. Follow us on Twitter @StJohnsChambers to be kept up to date with all of our fundraising.

If you wish to instruct Christopher Sharp QC on a personal injury or clinical negligence matter, please contact his clerks on .

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