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  • Code operators as occupiers under the Electronic Communications Code

    Solving the conundrum of Compton Beauchamp

    The decision of the Court of Appeal in Cornerstone Telecommunications Infrastructure v Compton Beauchamp Estates (2019) has met with a sustained challenge by some code operators. That may in part have been aimed at securing wider rights than were intended, but at least in some circumstances it seems to lead to a genuine ‘black hole’ for sitting operators. With the case now heading to the Supreme Court, Andrew Walker QC considers whether there is a sensible solution.

  • Break Clauses – Grey Areas and Unresolved Arguments

    In this Seminar Paper (delivered in November 2019), Andrew Walker QC discusses problems with break clauses as regards vacant possession, reinstatement obligations, and the removal of tenant’s chattels and fixtures, and comments on the potential impact of the forthcoming RICS Code for Leasing Business Premises.

  • Liability under GAGAs clarified (EMI Group v Prudential Assurance)

    In this article, Maxim Cardew analyses the recent decision in EMI Group Ltd v Prudential Assurance Co Ltd [2020] EWHC 2061 (Ch) in which he and John McGhee QC appeared successfully on behalf of Prudential (the landlord) against EMI (the guarantor). The court held that a guarantee (GAGA) of an authorised guarantee agreement (AGA) was valid and enforceable, despite the dissolution of the original tenant that had provided the AGA, and clarified the principles of severance applicable in the context of guarantees that would otherwise fail to comply with the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) as a result of either purporting to guarantee the liabilities of subsequent tenants or allowing such a liability to revive at some point in the future after a first assignment (eg on an assignment back). The court also considered what conditions needed to be satisfied for a guarantor to be released from its obligations ‘to the same extent’ as a tenant, as required by LT(C)A 1995. 

    This article was first published by Lexis®PSL on 10/08/2020.

    Source: Lexis®PSL

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  • Commercial property valuations and rental values after Covid-19 - challenges and opportunities

    Following publication of new RICS Covid-19 valuation assistance to surveyors, Andrew Walker QC considers the current difficulties for commercial property valuations, and landlords’ prospects of maintaining rental values for commercial properties in badly hit sectors of the economy.

  • Beyond wrongful trading: remaining risks and responsibilities

    Although the initial three-month suspension of wrongful trading provisions from 1 March 2020 was welcomed as introducing breathing space for boards of directors facing unprecedented uncertainty arising out of the COVID-19 pandemic, the majority of the insolvency legislation remains in force and unchanged.

    While the government referred to the provisions relating to fraudulent trading and to disqualification orders as providing continuing checks and balances, neither is very likely to be at the forefront of the minds of directors or those advising them. By contrast, the need to consider creditors under s 172 of the 2006 Act gives rise to a duty of much broader and more uncertain parameters and represents a real and remaining risk of personal liability, particularly given the current financial climate.

    Gabriella McNicholas discusses the uncertainties and remaining risks facing company directors in the June edition of Butterworths Journal of International Banking and Financial Law.

    Source: Butterworths Journal of International Banking and Financial Law

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  • The Ides of July (15th) – now or never to avoid commercial real estate insolvencies?

    There may now be little time for the voluntary re-scheduling of lease
    payments due on and after the June 2020 quarter day. Andrew Walker QC
    explores the reasons why.

  • Dreams analysis; sale contracts, completion and vacant possession

    Andrew Walker QC analyses the recent decision in Dreams v Pavilion Property Trustees, and considers the nature of obligations to be complied with on completion of a contract of sale and purchase.

  • Re Akkurate Ltd (in Liquidation) [2020]

    On 4 June 2020 the Chancellor handed down his decision in Re Akkurate Ltd (in Liquidation) [2020] EWHC 1433 (Ch), the latest in a line of first-instance cases on whether s236 Insolvency Act 1986 has extraterritorial effect.

    Rowena Page summarises the law as it was before Akkurate, explores the decision itself, and considers where may be next for questions of extraterritoriality and s236 IA.

  • Property in the pandemic: Update 15 May 2020

    Since the original “Property in the pandemic” was written, on 20 April 2020, there have been further major developments in practice and procedure; even more significantly, the government has again promised wide-ranging reforms to insolvency law that are likely to have a dramatic effect on real property litigators.

    Focusing once more primarily on commercial landlord and tenant disputes, Richard Fowler surveys how the Covid-19 practice directions and guidance have changed in the last month, and how the courts are responding to them; explains what the government is now proposing by way of further legislation; and considers how the litigation landscape is likely to look for commercial property owners and tenants in the months to come.

     

  • Property in the pandemic: A toolkit for commercial real estate litigators

    A month into the lockdown, what is the state of play in real property litigation? What developments can we expect in the near future?

    Focusing on commercial landlord and tenant disputes, Richard Fowler surveys the Covid-19 legislation, protocols and guidance; considers what the courts are currently able to do; and identifies the themes, in both commercial and insolvency law, that are likely to dominate the field in the months to come. It is intended to update this article periodically to reflect further changes in this fast-moving subject.

  • Joint Ventures: A Protean Concept

    Joint venture disputes often hinge on case-specific factors in the relationship between venturers; however, distinct themes are also evolving in the case law, permitting of navigation through the issues.

    With reference to the recent case of Russell v Cartwright [2020] EWHC 31 (Ch), James Hanham discusses the important developing principles relating to fiduciary duties and obligations of good faith.

  • Guaranteed adjournment due to Covid-19? Think again…

    Many litigants and court users will be assessing the impact of the COVID-19 pandemic on forthcoming hearings and trials.

    Edward Meuli discusses the decision of Re One Blackfriars Ltd [2020] EWHC 845 (Ch), where the Court refused an application to adjourn a trial on account of COVID-19, and explores the factors likely to be involved in such applications.

  • Disposals in breach of contractual rights – don’t forget the tort

    Parties to a contract dealing with rights over an asset may agree that the asset must not be transferred to anyone else except in particular circumstances. What happens if the asset is transferred to someone else in breach of those restrictions?

    Can a claim be made against the transferee?  Where the asset is land, lawyers tend to look for a remedy in property law, but that is not the whole story.  If the asset is not land, or if property law cannot help, there can still be a claim.  Andrew Walker QC discusses one of the main alternatives in the law of tort, and the potential for obtaining an injunction to unravel a wrongful transfer.

  • The Temporary Insolvency Practice Direction - Preparing for the Side-Effects of Covid-19

    This new practice direction came into force on 6 April, and provides important changes to the procedure in insolvency proceedings.

    Duncan McCombe’s article summarises the Temporary IPD’s content and puts that content into context. At the same time, Duncan seeks to provide an explanation where the drafting of the Temporary IPD may seem a little opaque.

    Source: Corporate Rescue and Insolvency

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  • Wrongful trading suspension: Does it create a false sense of security?

    Many directors are facing difficult decisions as they try to keep their businesses afloat. Wrongful trading laws have been suspended. But other relevant laws remain unchanged. Critically directors remain subject to the creditors’ interest duty. Not only is this duty more easily engaged than the wrongful trading provisions but its precise trigger is the subject of an appeal pending before the Supreme Court. This article examines the current position and highlights other key issues to be kept firmly in mind by directors and those advising them in these challenging times.

  • Forfeiture beyond the Covid-19 moratorium

    Looking beyond the current moratorium, what place will forfeiture have in the post Covid-19 commercial real estate market?

    Rob Nicholson of Ashfords LLP and Andrew Walker QC of Maitland Chambers look to the future, considering the fine balance between the interests of landlords and tenants, and how the Government or the courts might mitigate the effects of the pandemic.

  • Implied terms that consent is “not to be unreasonably withheld”. Time to reassess?

    Where does the law now stand on implying a term that consent “is not to be unreasonably withheld”, if a covenant in a lease or a restrictive covenant does not say this expressly?

    Drawing on commercial cases, this article seeks to inform, challenge, and perhaps provoke further thought.

    Source: Andrew Walker QC

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  • On demand bonds

    On demand bond and the ambit of the Marubeni presumption.

    In the December 2019 edition of the Butterworths’ Journal of International Banking and Finance Law, (2019) 11 JIBFL 715, Adam Smith examines the ambit of the Marubeni presumption in the light of the decision in Rubicon Vantage International Pte Ltd v. Krisenergy Ltd [2019] EWHC 2012 (Comm), and in particular the application of the Marubeni presumption in determining the extent of an admitted on-demand liability

    Source: Butterworths’ Journal of International Banking and Finance Law, (2019) 11 JIBFL 715

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  • Charity Land: Do Charity Trustees have power to sell designated land?

    Questions often arise regarding proposed transactions involving charity land: Is there power to sell? What factors do trustees have to bear in mind? What is specie land and designated land? This article tries to answer some of these questions.

    Source: Practical Law

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  • A perilous enterprise

    Paul Clarke explores the challenges of establishing that trust obligations have arisen after the failure of a joint venture

    In the recent Court of Appeal decision earlier in 2018 in Generator Developments Ltd v Lidl UK GmbH, Lidl had purchased in its sole name a site at Wates Way Industrial Estate, Brentwood, Essex on which it intended to build a supermarket, and Generator, a property development company, claimed that the purchase was a joint venture and that Lidl held the site on trust for both parties.

    Source: This article was first published in Trusts and Estates Law & Tax Journal (October 2018) and is also available at lawjournals.co.uk

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  • Can a charity's assets be protected from creditors?

    Donors often ask if their prized work of art or historical artefact can be given to charity but protected from creditors. This article considers some of the options available.

    Source: Practical Law

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  • The Good Name of Charity – charities and their reputations

    The management of charities’ reputations is much in the news. This article explores trustees’ legal duties in this respect and the limitations of the present law.

    Source: Practical Law

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  • Conflicts of loyalty: can a charity trustee ever serve two masters?

    The Charity Commission is increasingly taking regulatory action in response to conflicts of interest and conflicts of loyalty. This article explores conflicts of loyalty and the extent to which it is (and is not) possible to authorise a trustee who owes duty to two different organisations to continue to act.

    Source: Practical Law

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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 for the Practical Law website, a short clip is available to view on YouTube.

    Source: Thomson Reuters Legal UK & Ireland

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

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

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

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  • Source: Property Litigation Assocation Website

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

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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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • 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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  • “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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  • 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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  • 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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  • Contentious cases 2016

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

  • 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

  • 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

  • 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

  • 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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