They think it's all over - it isn't now: mediated settlement agreements and mediators in the firing line

The mediation ends in the early hours of the morning with the parties reaching a settlement and there is a collective sigh of relief.

Serious Fraud Office targets shareholders who receive the proceeds of crime

Following action taken by the director of the Serious Fraud Office (SFO) in the High Court, an order has been made for a company to pay more than £130,000 in recognition of sums it received through share dividends derived from contracts won through unlawful conduct.

Is it a bird? Is it a plane? Is it 'mediation privilege'?

Parties entering into a mediation process usually sign a mediation agreement in advance which will include detailed and express provisions regarding confidentiality and privilege.

Reclaiming health and safety for all – lessening the burden

The Löfstedt Report on health and safety legislation was issued yesterday, along with the Government's response to it.

Before you take the plunge. Life after breach - Part 4. It wasn't me

Could you be held liable for the fraudulent actions of another? If you are an employer and one of your employees is involved in fraudulent activities, then yes.
 

Adjudication enforcement: what happened to 'pay now and argue later'?

The Technology and Construction Court (TCC) has consistently demonstrated in a string of cases its unwillingness to overturn adjudicators' decisions.

Before you take the plunge. Life after breach - Part 3. Great expectations?

What happens if one party to a contract fails to perform? Can the innocent party get all of its losses back? What happens if the losses are difficult to prove?

Before you take the plunge. Life after breach – Part 2. Frustration and force majeure

Contracting parties are required to keep their bargains. The fact that performance subsequently becomes more difficult or less profitable does not excuse them from liability.

Before you take the plunge. Life after breach - Part 1. Excluding liability

What's the first thing lawyers turn to when reviewing a commercial contract, and invariably one of the last issues to get resolved? The exclusion of liability clause.

Have you got it covered? The consequences of regulatory non-compliance. Part 4 - costs and cuts: the future of health and safety

In a recession-struck world, costs are going up and cuts are hitting us all, not least in the budgets of the regulators. Regulators are quickly turning to new ways to recoup their outlay and, simultaneously, legislation is under review. The landscape of health and safety is ever changing.

Have you got it covered? The consequences of regulatory non-compliance. Part 3 - what to do about Enforcement Notices

If the Health and Safety Executive or Local Authority forms the view that you are contravening a statutory provision, or that a breach is likely to continue or be repeated, they can issue an immediate Improvement Notice.

Fitness for purpose - when the kit doesn't fit

'Fitness for purpose' and 'satisfactory quality': deceptively problematic concepts which are frequently encountered in the construction industry. How do implied terms under the Sale of Goods Act impact on construction contracts? What are the consequences of not having a written contract?

Rules are rules chaps: not disclosing commission on a PPI sale was not unfair

This week, the Court of Appeal rejected an appeal by the claimants in Harrison v Black Horse Ltd. Further to their alert of 12 October 2011, Wragge & Co's litigation experts now analyse this landmark decision in further detail.

PPI mis-selling claims: Court of Appeal rules in favour of lender and confirms compliance with ICOB rules is key

The Court of Appeal has today rejected an appeal by the claimants in Harrison v Black Horse Ltd. This is an important decision for lenders faced with payment protection insurance (PPI) mis-selling claims. In particular, numerous court actions have been stayed pending its outcome.

Have you got it covered? The consequences of regulatory non-compliance. Part 2 - voluntary PACE interviews: don't throw caution to the wind

In this, the second part of our series on 'Have you got it covered? The consequences of regulatory non-compliance', we consider what powers of arrest the police possess and what you can do if you are arrested on attending voluntarily for interview.

Have you got it covered? The consequences of regulatory non-compliance. Part 1 - eternal punishment?

In this, the first part of our series on "Have you got it covered? The consequences of regulatory non-compliance", we consider the ongoing impact of cautions and convictions on corporate offenders and suggest how the impact of such enforcement may be lessened.

Banking update: report and review on recent cases and issues

Using the small claims court to keep costs down; negligent advice by surveyors; no conflict of interest for trustees in bankruptcy; no piggy-backing of additional applications on to pre-trial review.

Before you take the plunge. Back to basics on contracts - Part 4. Best, reasonable and all reasonable endeavours - how far are you agreeing to go and what are you committed to?

You may consider using an endeavours clause to qualify a contractual obligation you are giving. This may be because fulfilment of the obligation depends on the co-operation of a third party or other matters beyond your control.

Before you take the plunge. Back to basics on contracts - Part 3. Hyperbole or misrepresentation? It can be a fine line

What is the position when you enter into a contract relying on inaccurate representations made to you by the other party? What happens if the other party tries to limit its liability for any misrepresentations relating to the contract?

Before you take the plunge. Back to basics on contracts - Part 2. Getting what you want - contracting on your own terms

So, you have a contract but on what terms? This should be such a simple question to answer but it's not always as easy as it sounds.

The nuts and bolts - part 12. Practical completion - What does it mean?

In this, the 12th and final part of our series, we examine the basics and key issues surrounding Practical Completion.

Before you take the plunge. Back to basics on contracts – Part 1. Contract? What contract?

It is crucial to know when a contract is formed and what its terms are. However, many contract disputes are arguments about whether or not there is a contract at all.

Adjudication and conclusivity: enough is enough

The Technology & Construction Court has made its decision in Jerram Falkus Construction Ltd v Fenice Investments Inc [No 4]. The judgment provides useful guidance on conclusivity provisions in construction contracts relating to final accounts, final statements and adjudicators' decisions.

The nuts and bolts - part 11. Construction Act amendments: don't let them catch you out

The amendments to the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act) are due to come into force on 1 October 2011 in England and Wales and 1 November 2011 in Scotland.

Banking update: report and review on recent cases and issues

Marshalling of debts; negotiations to be considered as a whole; disclosure of client contact details; summary judgment criteria; Wragge & Co's banking and finance experts bring you the latest on the cases and issues affecting the lending industry.

Ensuring safety: the Court of Appeal clarifies issues of foreseeability and causation under the Health and Safety at Work etc Act 1974

The Health and Safety at Work etc Act 1974 is approaching its 40th birthday. It continues to form the bedrock of UK health and safety law, yet its two most important sections (Sections 2 and 3) have been the subject of analysis in several cases in the last three years.

The nuts and bolts - part 10. Insuring your interests in construction and engineering projects

Insurance issues in construction and engineering contracts are often left to the last minute, but they can be a minefield. What insurances are relevant to construction and engineering projects, and what issues do you need to consider when negotiating insurance provisions?

The nuts and bolts - part 9. Remedying defects: the options

Faced with a defect in a building the owner will have to consider various issues. What is the cause of the defect? How should it be remedied? Who should remedy the defect and who might be responsible for the costs? Can recovery be made either in contract or in tort?

The nuts and bolts - part 8. What goes up must come down...safely

Working at height continues to be a top priority for the Health & Safety Executive (HSE) and falls from height remain a major problem. In 2008/2009 more than 4,000 employees (including in the construction industry) suffered a major injury as a result of a fall from height.

The nuts and bolts - part 7. No time for delay: getting to grips with extensions of time

There are very few construction disputes where delay is not an issue. The process of establishing entitlement to an extension of time can be both time-consuming and costly.

Banking update: report and review on recent cases and issues

Consolidation of a loan does not affect security; security from principal debtor does not preclude claim against guarantor; undue influence and misrepresentations defeat statutory demand; surveyor owes no duty of care to buy-to-let purchaser.

The nuts and bolts - part 6. The inclusive price principle: the obligation to carry out and complete

When considering a contractor's primary obligations, attention often turns to those requirements relating to the required standard of the works and to the time within which they must be completed. Often overlooked, however, is a contractor's obligation to carry out and complete the works.

Bribery Act - stay out of trouble with our essential checklist

After months of speculation and media attention, the Bribery Act finally arrived on 1 July. A major new piece of legislation, it is designed to reform the criminal law of bribery, covering the offences of bribing another person and accepting a bribe.

The nuts and bolts - part 5. Contractor's design: back to the drawing board

Identifying a contractor's design obligations is one of the most important issues in negotiating a contract.

The nuts and bolts - part 4. Dispute resolution clauses: mitigating the fallout

It may be difficult, in the optimism at the start of a construction project, to consider what you are going to do if things go wrong. Often the first time parties even look at the dispute resolution clause is when the relationship has deteriorated beyond repair.

Taking the heat - a practical look at the impact of the Regulatory Reform (Fire Safety) Order 2005

When assessing risks associated with fire, the immediate concern is often the potential loss of life. Corporate manslaughter or gross negligence manslaughter charges can follow if death occurs due to corporate or individual gross negligence.

Construction Act changes are confirmed

The long wait is over. After lengthy consultation and debate, the Statutory Instrument confirming the implementation date of Part 8 of the Local Democracy, Economic Development and Construction Act 2009 has now been published.

The nuts and bolts - part 3. Boilerplate or bear trap? Ignore standard clauses at your peril

There are many clauses in a construction contract that, at first glance, appear to be straightforward. However, they may in fact have unforeseen effects on the obligations and liabilities of the contracting parties.

Banking update: report and review on recent cases and issues

Recovering the costs of enforcing a charge; confirmation from the Court of Appeal – Part 36 offers cannot be time limited; the need to get service right; Wragge & Co's banking and finance experts bring you the latest on the cases and issues affecting the lending industry.

Before you take the plunge. International arbitration - Part 4. Making claims pay: the enforcement of arbitral awards in international disputes

One of the key advantages of resolving an international dispute through arbitration, rather than court proceedings, is that it is often easier and quicker to enforce an arbitral award than a court judgment.

The nuts and bolts - part 2. Letters of intent - a time and a place

Despite all the warnings about the risks associated with letters of intent (LOI), there is a time and place for them to be used on construction projects.

The nuts and bolts - part 1. The challenges ahead in public procurement

In today's competitive construction industry, forewarned is forearmed. By considering and preparing for the legal issues which can arise during a typical construction project, your business will be better equipped to save time and money.

Before you take the plunge. International arbitration - Part 3. First come, first served? The court's views on anti-suit injunctions

In this, the third part of our mini series on international arbitration, we look at when parties might issue proceedings in their home courts, and what the options are if they do.

Before you take the plunge. International arbitration – Part 2. Which rules? Which venue?

Parties agree to use arbitration as their chosen method of dispute resolution either by an arbitration agreement in relation to future disputes or by a submission agreement once a dispute has arisen.

Before you take the plunge. International arbitration - Part 1. The pros and cons of international commercial arbitration

In this, the first part of our second 'before you take the plunge' mini series, we look at the pros and cons of international arbitration, including flexibility, privacy and confidentiality, pre-emptive remedies, speed and cost.

Banking update: report and review on recent cases and issues

Wragge & Co's banking and finance experts bring you the latest on the cases and issues affecting the lending industry.

Before you take the plunge. Managing the costs of dispute resolution - Part 4. Focusing an opponent's mind on settlement

Making an offer of settlement under Part 36 of the Civil Procedure Rules (Part 36) is one of the most crucial tactical steps in litigation.

Judicial review of PPI complaints handling fails

The High Court decision in the British Banker's Association's (BBA) judicial review of the Financial Services Authority's payment protection insurance complaints handling procedure was handed down yesterday. The BBA lost on all three grounds of challenge.

Banking update: report and review on recent cases and issues

Final orders rarely revoked; bank held to fee estimate; limited discretion on bankruptcy order and enforceable guarantee; the latest on the cases and issues affecting the lending industry.

Before you take the plunge. Managing the costs of dispute resolution - Part 3. Share and share alike - contingency fees

One of the most groundbreaking recommendations in Jackson LJ's final report on litigation costs is the introduction of contingency fees.

Before you take the plunge. Managing the costs of dispute resolution - Part 2. Help I need somebody - is third party funding the answer?

For claimants that cannot afford to pursue a valid claim or have the resources but simply want to avoid the cash flow and/or costs risk of funding a piece of litigation, third party funding may be a viable option.

Before you take the plunge. Managing the costs of dispute resolution - Part 1. Funding litigation - can you cut the costs?

The use of conditional fee agreements (CFAs) and after the event (ATE) insurance enables litigants to bring claims which they may otherwise be unable, or unwilling, to pay for.

Bribery Act 2010 - Ministry of Justice provides its guidelines

After two months of speculation covering thousands of column inches, the Ministry of Justice has finally published its guidance under section 9 of the Bribery Act 2010.

Civil litigation funding and costs - reform is on the way

Some 14 months after the publication of Lord Justice Jackson's Civil Litigation Costs Review, the Lord Chancellor and Secretary of State for Justice, the Rt Hon Kenneth Clarke QC MP, yesterday presented the Government's response as to how it would implement his recommendations.

Finance company is not a private purchaser - an update

In the November edition of our banking update, we referred to the High Court decision of Welcome Financial Services Ltd v Nine Regions Ltd t/a Log Book Loans. Here is the latest update from the case.

Banking update: report and review on recent cases and issues

Over-optimism does not necessarily lead to misrepresentation; consequences of failing to attend trial; mental capacity; new lending code for borrowers.

Banking update: report and review on recent cases and issues

Wragge & Co's banking and finance experts bring you the latest on the cases and issues affecting the lending industry.

Reminder: HSE commences unannounced inspection visits to construction sites

Following an announcement from the Health and Safety Executive (HSE), starting today - for the next month - the HSE will be carrying out unannounced visits to construction sites across the country.

Court of Appeal decision: builder not liable for costs of remedial work

The Court of Appeal has confirmed that a builder or seller of a building does not, because of the existence a contract, assume any liability in tort for defects in the building which result in pure economic loss.

Update: Bribery Act delayed

Dealing with the impact of the Bribery Act is high on the agenda of many organisations. The Act was due to come into force in April 2011. However, we understand that the Ministry of Justice has now confirmed that implementation of the Act will be delayed.

Banking update: report and review on recent cases and issues

A review of badly drafted guarantees, unilateral notices, Part 36 offers, and the Insolvency Services policy on bankrupt's principal residence.

To be or not to be (a Part 36 offer)

One of the most crucial aspects of cost effective litigation, especially in a difficult economic climate, is knowing how best to take advantage of settlement negotiations and in particular, the use of Part 36 offers.

Courts continue to find in lenders' favour on PPI mis-selling claims

Six judgments have been handed down dealing with allegations of payment protection insurance premium mis-selling and breach of the Insurance Conduct of Business Rules. All six judgments are in favour of the lender and Wragge & Co acted for the lender in three of the cases.

Food for (serious) thought: Food hygiene rating scheme launched

Reputation is crucial in the food sector. Food outlets should therefore take a close look at the new Food Hygiene Rating Scheme for England, Wales and Northern Ireland launched by the Food Standards Agency (FSA) in partnership with local authorities.

Before you charge in - Part 12. Choice of Court: you pay your issue fee, you make your choice

A key consideration when commencing proceedings is in which court to issue. In this, the final part of our latest 'before you charge in' series, we examine the key points to consider if you do have a choice of court.

The Balloon Debate - funding options for litigation

The debating powers of some of the legal world's finest minds were put to the test at Wragge & Co's Balloon Debate event.

Banking update: report and review on recent cases and issues

Wragge & Co's banking and finance experts bring you the latest on the cases and issues affecting the lending industry.

Linklaters decision: when pipes and insulation became an installation

The Linklaters Business Services v Sir Robert McAlpine trial has now taken place. Wragge & Co's experts examine the decision.

Banking update: report and review on recent cases and issues

Wragge & Co's banking and finance experts bring you the latest on the cases and issues affecting the lending industry.

Before you charge in - Part 11. Staying in control of your contracts: no-waiver and variation clauses

Being in control of your contracts is key to avoiding disputes in respect of them.

Supreme Court hands down judgment in Manchester City Council v Pinnock: local authorities and social landlords take note

Local authorities and social landlords must take note of the Supreme Court's decision in Manchester City Council v Pinnock.

When "without prejudice" doesn't mean what you think

It is commonly thought that the words "without prejudice" mean exactly that - litigants can write or say what they like, safe in the knowledge that such information will never be put before a judge (and in effect used against them). Think again!

Before you charge in - Part 10. A bird in the hand...when does the right to set-off arise?

Knowing how much money you owe and are owed is critical when considering disputes with other parties.

Cutting compensation for commercial agents

A recent High Court decision could mark a significant development in the courts' treatment of claims for compensation under the Commercial Agents (Council Directive) Regulations 1993 (the Regulations) - to the detriment of agents, and the benefit of principals.

E-disclosure - are you ready to sign?

Disclosure is an integral and essential part of the litigation process and in turn electronic disclosure is of growing importance within that disclosure process. 

Before you charge in - Part 9. At the heart of it: repudiatory breaches and termination

Poor performance, failure to meet deadlines, and failure to pay on time may all amount to breaches of contract. However, not all breaches of contract entitle the non-breaching party to treat the contract as terminated.

Banking update: report and review on recent cases and issues

Tracing claims, ratification of actions, pre-action disclosure application and economic interest in bankruptcy application required.

How effective is your retention of title clause?

Suppliers of goods often get a rough deal when their customers become insolvent because they are unsecured creditors. Retention of Title (RoT) clauses can provide some protection to suppliers.

Before you charge in - part 8. Say what you really mean: the importance of making your intentions clear in commercial contracts

Disputes between parties regarding a written agreement almost always involve disagreements about the meaning and effect of particular contractual terms.

Bribery Act to come into force in April 2011 - time to take action

The provisions of the Bribery Act come into force in April 2011. Organisations which fail to implement a programme to prevent bribery could be hit with an unlimited fine and serious reputational damage.

Banking update: report and review on recent cases and issues

The meaning of charge for credit, enforcing charging orders, abuse of process considerations, tracing claims and the Financial Service Authority's responsible lending consultation; Wragge & Co's Banking and Finance experts bring you the latest on the cases and issues affecting the lending industry.

Before you charge in - part 7. Confidentiality agreements - are they worth the paper they are written on?

Obligations of confidence arise because of the relationships between parties (e.g. between MI5 and a field operative), or because of the circumstances of disclosure (e.g. an inventor revealing the secret designs of a new product to an investor or two parties collaborating in a joint venture).

The importance of compliance after Buncefield

There doesn't have to be a fatal accident for a large fine to be imposed on an organisation for breaches of duty relating to health, safety and environmental law.

The Companies Act 2006 and directors' duties

We should remind ourselves that being a company director is a wonderful thing for the person who is a company director.

Court of Appeal brings some clarity to part 36

Part 36 offers are one of the most important tactical steps which parties (claimant or defendant) can take during a dispute. They provide a means of putting pressure on an opponent to settle a case or face potential costs and interest consequences.

Banking update: report and review on recent cases and issues

Wragge & Co's Banking and Finance experts bring you the latest on the cases and issues affecting the lending industry.

Before you charge in - part 6. Dispute resolution clauses – one size does not fit all

In this the sixth part of our 'before you charge in' series, we set out the broad features of the main dispute resolution methods and the situations in which they may be appropriate.

Failure to settle can have significant costs consequences

Failure to make settlement offers or negotiate with an opponent at an appropriate time in the proceedings can lead to the defaulting party being penalised in costs.

Tomlin schedule not variable

In the case of Community Care North East v Durham County Council, Ramsey J held that the court did not have the power to vary terms within a schedule to a Tomlin Order.

Local authority litigation update

With cuts to public spending high on the current political agenda, the focus on litigation issues for local authority in-house lawyers increases too.

Before you charge in - part 5. When and how to challenge public procurement contracts

When you bid for a public contract, what can you do if the rules have been breached? 

Banking update: report and review on recent cases and issues

What constitutes actual occupation, no claim against Court Services for failure to register bankruptcy petition, getting the name of the parties correct and clear reasoning required for court's decision.

Common sense interpretation of Part 36 offers

In any litigation, considering offers of settlement is crucial. If you make an offer under part 36 of the Civil Procedure Rules and your opponent does not accept it but then fails to obtain a more (or equally) advantageous outcome at trial, you are likely to be awarded your costs.

Construction fatal accidents: directors beware?

Directors of construction companies should take note that the current Government has accepted several recommendations in Rita Donaghy's report, "One Death is too Many", on construction fatalities.

Settlement and litigation costs: when refusing to talk doesn't pay

A successful party which fails to enter into settlement negotiations following an offer to settle may be deprived of a substantial proportion of its costs.

Banking update: report and review on recent cases and issues

An order for sale and Convention considerations, undue influence, implied withdrawal of a Part 36 offer and reasonableness of after the event insurance premiums.

Before you charge in - part 4. Limitation - is the clock ticking?

The question of limitation is relevant to all legal disputes. If the rules on limitation are not followed, a party who has suffered a wrong at the hands of another may be time-barred from seeking a remedy.

Homelessness decisions: minded to find or not?

Local housing authorities face considerable difficulties when deciding whether to send a "minded to find" letter pursuant to regulation 8(2) of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999/71.

On the hook: how contractors may be liable for defects up to 15 years from completion of the works

How long can a contractor be on the hook for defective works under a building contract?

Banking update: report and review on recent cases and issues

A defendant making a "claimant" part 36 offer, considerations of an unfair relationship, payment starts time running again and good reason required for failure to attend trial.

Before you charge in - part 3. Entire agreement clauses - how effective are they?

When negotiating a contract, should you be including an entire agreement clause? If so, how do you make sure it does what you want it to?

Rights of residency of child's primary carer

The European Court of Justice has handed down two key decisions regarding the rights of residency for primary carers of children in education.

Banking update: report and review on recent cases and issues

Obtaining information despite stay of enforcement, the need to act in good faith, recoverability of costs in small claims, penalty for destroying documents and a consultation on orders for sale for Consumer Credit Act debts.

Before you charge in - part 2. Governing law and jurisdiction - how to save yourself a headache at the outset

Any contract of substance, and certainly one with an international element, should contain both a governing law and a jurisdiction clause. Consider the following tips on what to think about when drafting these clauses.

Words, words, words: the use of general words to incorporate arbitration provisions

In Habas Sinai VE Tibbi Gazlar Isthisal Endustri A.S. v Sometal S.A.L., Mr Justice Christopher Clarke considered whether the use of general words of incorporation were capable of incorporating an arbitration clause into the parties' agreement.

Sky proves fraud against EDS

The long-awaited judgment of Mr Justice Ramsey in the case of BSkyB Limited (Sky) v  Electronic Data Systems Limited (EDS) was handed down yesterday with EDS, now owned by Hewlett Packard, found liable for deceit, misrepresentation and breach of contract.

Before you charge in - part 1. Commercial agents - the essentials and what happens upon termination

In this alert, Wragge & Co's dispute resolution experts set out some of the essential terms of commercial agents' contracts in the European Economic Area (EEA), focusing particularly upon the UK.

Banking update: report and review on recent cases and issues

A review of civil litigation costs, the need to make enquiries of occupiers, restitution, bankruptcy over security and a consultation on mortgagee's power of sale.

Lord Justice Jackson publishes final report on civil litigation costs

Lord Justice Jackson's Civil Litigation Costs Review makes a number of important recommendations which, if implemented, could result in significant changes to civil procedure.

A guide to health, safety and other prosecution risks - part 14. What will the future look like?

If only we knew for sure! What we do know is that in the area of regulatory enforcement the last couple of years have brought great changes – new legislation, new case law and a new political emphasis. This trend is set to continue.

A guide to health, safety and other prosecution risks - part 13. PACE interviews - a word of caution

Following an incident, if the regulator believes an offence has been committed, a request for an interview under caution pursuant to the provisions of the Police and Criminal Evidence Act 1984, often referred to as a "PACE interview" may be made.

A guide to health, safety and other prosecution risks - part 12. When the summons hits the fan....

Accidents happen: it's a fact of life and business. No matter what an organisation does to prevent an accident, or to deal with the aftermath to prevent a re-occurrence, there may be situations where a prosecution will still be brought.

Supreme Court hands down judgment in bank charges test case

The Supreme Court has handed down judgment in the highly publicised test case brought by the Office of Fair (OFT) against seven leading high street banks and one building society on the legality and fairness of bank charges.

A guide to health, safety and other prosecution risks - part 11. There's a rat in the kitchen, what am I gonna do?

Any business involved in the manufacture, preparation, storage, service or sale of food, even if only in the staff canteen, needs to be aware of and deal with the vast array of regulation with which it is required to comply.

'Fit for habitation' under The Defective Premises Act 1972

A guide to health, safety and other prosecution risks - part 10. ...as we protect those who trespass against us...

To what extent do trespassers need to be warned, protected, or prevented from coming onto property that might cause them harm?

Court of Appeal delivers judgment on meaning of credit: Southern Pacific Personal Loans Limited v Walker & another

The Court of Appeal in Southern Pacific Personal Loans Ltd v Walker & another has handed down a further judgment on whether an agreement is unenforceable on the ground of non-compliance with a requirement of the consumer credit legislation.

A guide to health, safety and other prosecution risks - part 9. Driving in the course of employment - are you in the driving seat?

Approximately 20 people are killed and 250 seriously injured every week in crashes involving someone who was driving or otherwise using the road for work purposes.

Court of Appeal delivers judgment on meaning of multiple agreements under the Consumer Credit Act 1974

In our alert Meaning of multiple agreements under the Consumer Credit Act 1974, we reported on the High Court decision of HHJ Purle QC in Heath -v- Southern Pacific Mortgage Limited. The Court of Appeal has now handed down its judgment in the case.

A guide to health, safety and other prosecution risks - part 8. Total recall - dealing with a defective product

Wragge & Co's health and safety experts pose some essential questions for producers and/or distributors to consider and suggest some steps to take should a risk to consumers arise.

A guide to health, safety and other prosecution risks - part 7. Fit for work: the impact of 'fit note' proposals upon accidents in the workplace

172 million days were lost in 2007 due to sickness absence in the UK - equating to about 2.6% of working time. Of those days, 34 million were lost due to work-related illness.

A guide to health, safety and other prosecution risks - part 6. Guilty without trial: the scourge of Enforcement Notices

The possibility of a prosecution for breach of regulations is at the forefront of every employer's mind when under investigation.

Where litigation meets arbitration: freezing legal proceedings

The High Court has held that it has no power under section 33(2) of the Supreme Court Act 1981 or rule 31.16 of the Civil Procedure Rules to grant pre action disclosure where the relevant agreement between the parties was subject to an arbitration clause.

Arbitration agreements - wording required to exclude a right of appeal on a point of law

A recent decision in the Commercial Court considered the extent to which the words "final, conclusive and binding" can be construed as excluding a right of appeal on a point of law under section 69 of the Arbitration Act 1996 ("the 1996 Act").

A guide to health, safety and other prosecution risks - part 5. Pollution - spills do not lead to thrills

Pollution can arise from the most innocuous of situations and strike without any warning. The consequences can be severe, not just for the environment and any creatures or habitat affected by the pollution, but also for those found to be responsible.

Does non-compliance with section 77(1) extinguish a creditor's rights?: Phillip McGuffick -v- The Royal Bank of Scotland Plc

In Phillip McGuffick v The Royal Bank of Scotland Plc the Commercial Court held that non-compliance with section 77(1) of the Consumer Credit Act 1974 (Act) did not extinguish a creditor's rights.

A guide to health, safety and other prosecution risks - part 4. Accident investigation - learning from the error of your ways

We all know that accidents do happen from time to time. Immediately after an accident or near miss there is a perfectly natural desire to understand what happened, why and how it can be prevented from happening again.

Supreme Court replaces House of Lords: practical points to note

On 1 October 2009 the Supreme Court will assume the judicial role of the House of Lords. New rules governing the practice and procedure to be followed in the Supreme Court have been published in the Supreme Court Rules 2009.

A guide to health, safety and other prosecution risks - part 3. An inspector calls....HELP!

The Health and Safety Executive (HSE), local authority or environment agency can turn up at your premises at any time. Following a report of an incident or accident, you can expect a regulator/authority visit – and the police if there has been a fatality.

A guide to health, safety and other prosecution risks - part 1. The blame game - personal liability of directors and officers

Corporate offences are usually strict liability. This means there is no need for the prosecutor to prove that the offence was committed deliberately or even negligently.

A stitch in time saves a custodial sentence and an unlimited fine: analysing the draft Bribery Bill

If measures proposed by the UK Government in its draft Bribery Bill come into force, a failure to put in place a programme to prevent bribery could land an organisation unlimited fines, reputational damage and individuals with a 10 year prison sentence.

Costs penalty follows withdrawal from mediation

Mediation and other forms of alternative dispute resolution are now part and parcel of the dispute resolution landscape with the courts keen to ensure that litigation is very much seen as a last resort.

The pros and cons of different methods of dispute resolution: a run round the bay

With a plethora of dispute resolution methods available, selecting the right one can be difficult and the implications may be significant.

No liability for employer for work equipment not within their control

In the case of Smith -v- Northamptonshire Council the House of Lords decided that equipment supplied by a third party and not within the control of the employer, should not be considered to be "work equipment" and "provided for use at work".

Litigation survival guide - part 18. Putting payment terms under the microscope

With no end in sight to the economic downturn, payment terms are increasingly important to many businesses. Contractual terms agreed in the past regarding payment may now appear somewhat outdated.

Litigation survival guide - part 17. Keeping your settlement confidential

You've reached a compromise, avoided the public arena of a trial and the potentially unwanted publicity that can go with it, and are happy with the terms of settlement negotiated.

Litigation survival guide - part 16. That's settled then!

Ensuring that a settlement agreement achieves its purpose is crucial.

Litigation survival guide - part 15. Securing the costs of your litigation

Litigation can be costly. Having to defend an unmeritorious claim made by a financially unstable company is the worst case scenario for any defendant and, in a period of economic downturn, the risk of this happening is increased.

Holiday entitlement - it's a personal thing

Construction companies may find their self-employed subcontractors claiming entitlement to paid annual leave following the judgment of the Employment Appeal Tribunal in Redrow Homes (Yorkshire) Limited v Buckborough and Sewell.

Litigation survival guide - part 14. Mediation - do you have to and why should you?

Parties should always be alert to the possibility of mediation as an alternative form of dispute resolution. This is particularly so in the current economic climate as mediation can resolve a dispute in a short time frame.

Local authority's duty to house a homeless minor

The Court of Appeal's decision in the case Alexander-David -v- London Borough of Hammersmith and Fulham (2009) EWCA Civ 259, provides local housing authorities (LHA) with practical and approved suggestions on its duty to house a homeless minor.

Corporate manslaughter

The first prosecution under the Corporate Manslaughter and Homicide Act 2007 has sent a strong message to organisations, fail to provide a safe working environment and end up charged.

Litigation survival guide - part 13. Offers to settle under Part 36

In any litigation, but possibly more so in times of economic downturn, considering offers of settlement is crucial. If an offer is accepted you will save on legal and management costs.

Further judicial guidance on the employment status of casual workers

In the case of R v Pola, the Court of Appeal has provided further guidance as to when a casual worker will be considered to be an employee for the purposes of the Health and Safety at Work etc. Act 1974 (the 'Act').

Litigation survival guide - part 12. Meeting your disclosure obligations

Disclosure is an integral and essential part of the litigation process.

Litigation survival guide - part 11. Time is (recoverable) money. Recovering wasted staff and management time

When a dispute arises which subsequently leads to litigation, the internal costs of investigating and dealing with the problem can be significant.

Litigation survival guide - part 10. To use or not to use? That is the without prejudice question

If I stick without prejudice on this email, I can't go wrong. Wrong!

Investment funds - surviving the downturn: avoiding claims and knowing how to deal with them if they arise

The credit crunch has had a grim and unsparing impact upon most markets. Asset prices and investment returns have fallen globally - albeit some markets and products have been affected more (or less) severely than others.

Striking up a partnership: the Regulatory Enforcement and Sanctions Act 2008 - a summary for businesses

A key part of the Regulatory Enforcement and Sanctions Act 2008 is due to come into force on 6 April 2009.

Litigation survival guide - part 9. Privilege - top five Q&As

Privilege is a complex area which can be the source of much confusion. The rules on privilege play a key role in the obligation to disclose documents which is an important stage in any litigated dispute.

Litigation survival guide - part 8. Cost-effective litigation

Although litigation should always be conducted in a cost-effective manner, in periods of economic downturn this becomes increasingly more important.

Litigation survival guide - part 7. Think before you claim

You might have a good claim, but jumping in with a strongly worded letter threatening court proceedings if settlement is not achieved by return of post is not necessarily the best way of achieving your desired outcome.

Litigation survival guide - part 6. Regulatory breaches - steps in the right direction

We live in an ever more regulated age. European and global markets are increasingly regulated and this trend looks set to continue.

Litigation survival guide - part 5. Responding to the threat of winding-up

Although service of a statutory demand or winding-up petition on a company is a blunt and unsophisticated debt recovery tool, it will often have the desired effect for a creditor as they are seldom ignored and ignored only at the company's peril.

London calling? - ECJ judgment delivered in West Tankers

The European Court of Justice has now delivered its decision in Allianz SpA v West Tankers Inc. It endorses the Advocate-General's Opinion.

Litigation survival guide - part 4. Winding-up your corporate debtor

The threat of insolvency proceedings against a corporate debtor can greatly assist a creditor's primary objective of getting paid, preferably in advance of everyone else.

Litigation survival guide - part 3. Retention of title: sellers beware!

With the effect of the global credit crunch hitting national and international trade, sellers should take a close look at their standard terms and conditions of sale to ensure that they have a valid retention of title (ROT) clause.

Waiving goodbye to a 'no-waiver clause'?

A party with the right to terminate an agreement for the other party's breach can lose that right even if that agreement contains a "no-waiver clause".

Research & Development tax credits - can you make or defend a claim?

The Research & Development (R&D) tax credits help companies to invest more in R&D either by reducing a company's tax bill or, for some loss-making small or medium sized companies (SMEs), by providing a cash sum.

Litigation survival guide - part 2. Keep your friends close, keep your suppliers/customers closer - avoiding problems in the supply chain

Surviving the economic downturn is not just about looking after your own business. Monitoring the performance of significant customers/suppliers can be crucial to your financial performance.

Dealing with Madoff

The publicity surrounding the Madoff scandal is set to increase. With the Serious Fraud Office investigation now underway in the UK, it is increasingly likely that investors will seek to recover their losses from financial institutions.

Litigation survival guide - part 1. Escape to victory: points to consider when terminating a contract

For a number of reasons you may wish to consider whether you can terminate a contractual relationship you have entered into. During periods of economic downturn the instances of this are greater.

Enforcing foreign judgments

Your client wants to sue an English company in the US. But will the defendant participate? What if they do not? Will any ensuing judgment be enforceable?

In, out, shake it all about - where are we on choice of law in Rome 1?

All businesses entering into international transactions should be aware of changes on the horizon affecting choice of law in contract.

Adjudication enforcement proceedings: how to succeed with a set-off defence

When an adjudicator decides that one party must pay money to another, can the paying party successfully resist enforcement proceedings by exercising a right of set-off?

Letters of Request: obtaining evidence in England and Wales

Do you need to obtain oral or documentary evidence from a company or an individual in England or Wales? Do you know what sorts of evidence you can obtain? Can you force a witness to answer your questions? Having trouble finding a witness?

When will you be liable for the actions of independent contractors?

The normal rule is that a company is only vicariously liable in negligence for the acts of its employees and not for the acts of the employees of any independent contractors.

Construction update: report and review of recent cases

This month Wragge & Co's construction experts have reviewed the latest reported adjudication cases.

Arbitration Agreements - are they as secure as you think they are?

Much is often made about arbitration as a preferable alternative to litigation as a form of dispute resolution. Its confidentiality, its flexibility and the relative ease with which arbitration awards can be enforced abroad are some of the cited benefits.

Escaping the abyss: How the court decides costs and the importance of making and accepting reasonable offers of settlement

A recent judgment has clarified that "winner takes all" no longer applies to recovery of costs in litigation. The formula to be used by trial judges in deciding the most appropriate costs order is now much more complicated.

The Wragge & Co balloon debate

And who says dispute resolution can't be fun? Watch the video to find out who was top dog!

Arbitration appeals - (how to avoid) washing your dirty laundry in public

One of the long established advantages of arbitration over the use of courts to decide disputes is that the arbitration process is private and the eventual award is confidential to the parties involved.

All signs point in one direction - mediation

Anyone who litigates will be interested in what the Master of the Rolls recently had to say, namely that parties should be encouraged and perhaps directed to engage in mediation.

Expert determination: no way out!

This week, in Owen Pell Limited v Bindi (London) Ltd., the Technology and Construction Court clarified the potentially binding nature of an expert determination. Read our analysis of the case with action points before you agree to an expert determination.

Winning and losing under Part 36

"Beating" a Part 36 offer will not necessarily lead to a costs order in your favour as seen in Carver v BAA. Read our analysis of this potentially far reaching decision and consider our action points when reviewing all Part 36 offers.

To waive (privilege) or not to waive? - that is the question

Wragge & Co's legal experts provide action and analysis on the costs consequences of unreasonable behaviour at a mediation and the potential automatic waiving of privilege in a document mentioned in a witness statement.

Snooper's charter and privilege

Did you know the public can access your court documents including those lodged in judicial review proceedings or the Employment Tribunal?

How to execute a document after 6 April 2008

Further sections of the Companies Act 2006 come into force on 6 April 2008, permitting the execution of a document by the signature of just one director. Read our expert advice and analysis.

Let's get ready to rumble - Important changes in Commercial Court practice from February 2008

Rome II - Thinking ahead

Corporate manslaughter - time to get cracking

The Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on 6 April 2008. Thinking you have plenty of time to assess its impact and take appropriate steps is likely to put your organisation at serious risk.

Recovering the cost of mediation