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  • Charitable companies: how far do fiduciary duties of members extend?

    In 2014 the High Court decided the biggest divorce case in English history: Sir Chris Hohn, hedge fund manager, was ordered to pay his wife, Jamie, $530 million.

    But the real money didn’t lie in their household fortune. It lay in the charity they had created together.

    Matthew Smith reviews this important charity law case.

    Source: Practical Law

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  • QC Corner - Andrew Ayres QC

    Question: when is something “dishonest”? Answer: when I say it is!

    The UK’s Supreme Court has sought to harmonise the law of dishonesty, by joining up the criminal test for dishonesty with the existing civil test.

    The case in question, Ivey v Genting [2017] UKSC 67, decided on 25th October 2017, did not concern dishonesty in the contexts where it might normally arise, e.g. the criminal law, dishonest assistance in breach of trust or a fraud claim, but in the context of a conceded contractual implied term in a gaming contract that the gambler would not “cheat” at the card game of Punto Banco. All the way along, at trial, in the Court of Appeal and in the UK’s highest court, the gambler lost.

    In the criminal context, the law was found principally in the case of R v Ghosh [1982] QB 1053, which required proof that, subjectively, the defendant herself must have realised that what she was doing was, by the standards of reasonable and honest people, dishonest. Subject to issues of personal credibility, and in theory at least, this allowed some defendants to self-regulate the trigger for liability for dishonesty offences.

    The UK Supreme Court now brings all forms of dishonesty into line with the civil standards well known to those practicing in the trusts and corporate contexts. Now, if, by ordinary standards, a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant herself judges dishonesty by different standards. Lord Hughes said at paragraph 74 of Ivey:

    “When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

    Unfortunately, this is not likely to be the end of the story, not because this important part of the decision was strictly obiter dicta but because a dishonest state of mind is something inherently subjective to any individual and there will be cases where, no matter how apparently objectionable the defendant’s conduct, the enquiry as to the actual state of the individual’s knowledge or belief provides inadequate or insufficient material to undertake with any ease the second-stage objective assessment of someone’s conduct. There are always cases where giving good advice as to whether impugned conduct was or was not dishonest requires careful analysis and judgment, and Ivey will not reduce the number of those.

    Source: http://harneysoffshorelitigation.com/andrewayresqc/

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  • Standby letters of credit

    Standby letters of credit, the “fraud” exception and commercial certainty – English law orthodoxy challenged.

    Andrew Ayres QC: in the July/August 2017 edition of Butterworths Journal of International Banking and Financial Law, (2017) 7 JIBFL 408, Andrew questions the reluctance of the courts to interfere with the cashflow dynamics between the parties to a standby letter of credit.

    Source: Butterworths Journal of International Banking and Financial Law, (2017) 7 JIBFL 408

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  • Contentious cases 2016

    A look at the legal landmarks that have affected the profession recently and how they’ll affect insolvency in 2016.

  • CIArb Guidelines, Safe Ports for Arbitral Storms

    Edited transcript of a debate held on 22 October 2015 as part of the Chartered Institute of Arbitrators Centenary celebrations, focusing on the use of guidelines in international arbitration, Maitland Chambers, London

    Source: (2016) 82 Arbitration. The International Journal of Arbitration, Mediation and Dispute Management published by Thomson Reuter

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  • The BVI VISTA legislation: refining the law to promote flexibility

    The concept of the VISTA trust was introduced in March 2004 by the Virgin Islands Special Trusts Act, 2003 (VISTA). The primary purpose of VISTA is to enable a BVI trust containing BVI company shares to be established under which the shares may be retained indefinitely and the management of the BVI company may be carried out by its directors without any power of intervention being exercised by the trustee.1 The BVI company held by the trust will itself often be a holding vehicle for other assets, such as further BVI and/or non-BVI companies.

    Source: Journal of International Tax, Trust and Corporate Planning, Jordan Publishing

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  • Seize the day - jurisdictional challenge

    What effect will the recent Court of Appeal decision of Erste Group Bank AG v JSC 'VMZ Red October' have on jurisdictional issues in English law? Richard Morgan QC, one of the barristers who argued the case, says that although these types of issues may be litigated more frequently, the English courts are doing a good job acting as a gatekeeper in relation to the extent of their jurisdiction.

    Source: Lexis®PSL Restructuring & Insolvency

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  • “The safety of mankind”: the civil consequences of bribery

    This article reviews the English law on bribes with reference to the two recent cases of UBS AG v Kommunale Wasserwerke Leipzig Gmbh and Cedar Capital Partners LLC FHR European Ventures LLP.

    Source: Butterworths Journal of International Banking and Financial Law

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  • One year on from PGF

    Mediators John Dagnall and Beverley Vara have written an article that asks, whether one year after PGF II SA v OMFS Company 1 Ltd, “les autres” have been “encouraged”?

    Source: Estates Gazette

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  • Non Executive Directors

    How do the duties of non-executive directors differ from those of executive directors? And more importantly for practitioners, what differences are there - if any - in the liabilities they are exposed to?

    Michael Gibbon has produced a video master-class with Practical Law’s Learn, Develop, Connect training solution, a short clip is available to view on YouTube.

    Source: Thomson Reuters Legal Uk & Ireland

  • Set-off and Crown departments

    This short article by Michael Gibbon QC examines some key principles in relation to set-off involving Crown departments in the context of liquidation. The subject often arises for consideration in a liquidation, normally with regard to tax debits and credits, but from time to time non-tax claims will be involved too.

    Source: Corporate Rescue and Insolvency - New Law Journal - Lexis Nexis

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  • To mediate, or not: that is the question

    Mediation has gained momentum following the Woolf reforms. Beverley Vara looks at its evolution and why, today, it’s hard to refuse.

    Source: Estates Gazette

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  • Company Law Article

    This month, Lawyer Monthly takes a look at Company Law, and the legal implications surrounding it. They spoke to Catherine Newman, a leading silk at the commercial Chancery Bar who has a strong practice both domestically and internationally, from Maitland Chambers.

    Source: Lawyer Monthly

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  • Counting the Cost

    The Court of Appeal case of Thomas v Jeffery reminds practitioners that even late disclosure does not fetter a judge's discretion on costs. Laurie Scher reports

    Source: Trusts and Estates Law & Tax Journal

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  • After Etridge

    Nigel Thomas has had his article "After Etridge" published in Trusts and Estates Law and Tax Journal (2014)

    Source: Trusts and Estates Law and Tax Journal (2014) No 154 March

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  • Influencing factors

    Rosanna Foskett examines the recent judgment in Hart and Samways v Burbidge, which illustrates how the courts will apply the principle of presumed undue influence, even where such influence was not intentional

    Source: The Law Society: PS

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  • Yet another reason to mediate

    An article written by two of our mediators Beverley Vara and John Dagnall on the recent case of PGF II SA V OMFS Company 1 Limited [2013] EWCA Civ 1288, which extended the obligations on litigants when offered the opportunity to mediate.

    Source: Maitland Mediators

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  • Source: Jordans: The Journal of International Tax, Trust and Corporate Planning

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  • It’s time charities paid

    Charities are already required to pay all manner of fees to other regulators. Why shouldn’t they pay a fee to their own?

    Source: The Lawyer

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  • Source: Property Litigation Assocation Website

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  • Source: (2013) 17 L. & T. Rev. 9, Thomson Reuters (Professional) UK Limited

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  • A tale of two cities

    Perdoni v Curati reinforces to practitioners the importance of establishing domicile, advises Nigel Thomas.

    Source: Private Client Advisor

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  • Stash Cloud

    As the authorities probe the bond dealings of JSC BTA Bank’s ex-chairman, Catherine Newman QC highlights some legal aspects of the saga that appear to add up to a near-reversal of the burden of proof.

    Please click here to follow the link to the article.

    Source: The Lawyer

  • The light stuff

    A recent rights to light case demonstrated how property rights are treated differently than contractual rights. John McGhee QC reports.

    Please click here to follow the link to the article.

    Source: The Lawyer

  • The BVI VISTA - Just how unspoilt is it?

    An in-depth article about the use of trusts as planning structures with reference to the British Virgin Island's special regime for VISTA trusts.

    Source: The Journal of International Tax, Trust and Corporate Planning

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  • Property Law for Housing Lawyers - Sale and Rent Back Schemes

    This seminar looks at "What is a sale and rent back scheme?"

  • Beneficiaries’ information rights

    This article examines, from an English standpoint and by reference to Rosewood v Schmidt and Breakspear v Ackland, the court’s discretion to intervene in the administration of a trust to order disclosure of information to beneficiaries.

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    Source: Trusts & Trustees