Built to last: National firm DLA Piper advised property infrastructure support company Europa Support Services on its purchase of Nationwide Building Services, advised by City firm Trowers & Hamlins, for an undisclosed sum. Test case: South-east firm Cripps Harries Hall advised French research company Staphyt on acquiring a majority stake in Oxford Plant Sciences, the biological testing facility. East Midlands firm Freeth Cartwright advised the sellers. Keeping cool: Magic circle firm Clifford Chance, alongside Saudi firm Al-Jadaan & Partners, advised cooling company Saudi Tabreed on sponsoring a SAR1.84bn (£334m) district cooling project for petroleum company Saudi Aramco in Saudi Arabia. Project financiers Banque Saudi Fransi were advised by magic circle firm Allen & Overy, while Saudi Aramco was advised by US firm White & Case. On track: Birmingham firm Wragge & Co advised Europorte, the rail freight subsidiary of channel tunnel operator Eurotunnel Group, on acquiring Great Britain Rail Freight from FirstGroup for an undisclosed sum. Magic circle firm Slaughter and May advised FirstGroup. Taking stock: City firm Nabarro advised stockbroker Numis Securities on business service group RSM Tenon’s move from AIM to the London Stock Exchange main market. City firm Macfarlanes advised RSM Tenon. Power play: Magic circle firm Linklaters advised National Grid on a £3.2bn rights issue, with City firm Herbert Smith advising a consortium of banks. Delivery online: City firm Hogan Lovells advised supermarket Waitrose on a new 10-year deal to work with online grocer Ocado, advised by Slaughter and May.
Alternative business structures (ABS) that step out of line could face a maximum fine £100m higher than previously expected, after the Legal Services Board decided to increase the maximum penalty for errant ABS to £250m. Responding to a consultation on the issue, the LSB said it considered carefully the SRA’s submission that, in setting a maximum fine, the LSB should take into account the firms that profited from the miners’ compensation scheme. The SRA cited a Gazette article in its submission, which named the five firms that earned the most from miners’ lung disease claims, and revealed that £1bn in total was paid to 500 law firms for those cases. The LSB said that its proposed maximum fine of £50m for individuals will remain. Chancery Lane argued that ABS should face unlimited penalties, in line with the sanctions available to the Solicitors Disciplinary Tribunal. However, the LSB said that fixed maximum penalties provided clarity and meant that licensing authorities would not have to spend considerable time and effort calculating fines based on an entity’s turnover. The LSB rejected an argument by the Institute of Legal Executives Professional Standards that the maximum £50m fine for individuals was too high. LSB chairman David Edmonds has asked justice secretary Kenneth Clarke to approve the measures. The Law Society, the SRA, the Institute of Trade Mark Attorneys, the Institute of Legal Executives Professional Standards, and the Master of Faculties all responded to the short consultation.
Robert Cumming, solicitor, Leeds Lamentable though it is that women are not remunerated equally with men in the legal profession, I fear the reason for the indefatigable ‘gender gap’ is one of nature and economics rather than any sinister motive. A free labour market in a capitalist economy will naturally discriminate against certain classes of persons who, on the whole, are less productive. Some women choose to have children and so are entitled to maternity leave. As a consequence, women, as a whole and all other matters being equal, work less than do men. In an efficient labour system the value of these fewer hours will equate to precisely that of the value of the ‘gender gap’. Until, therefore, legislation is in place to guarantee that the level of maternity and paternity pay, and leave, is precisely equal for men and women, there will remain an economic disincentive to employ women of child-bearing age when compared to men. Reform of labour laws should accordingly be the primary focus for those seeking equality.
Many managers in private practice and in in-house legal departments struggle with issues around staff morale. Morale’s a complex area. Staff can be intelligent and productive people, team players who are trusted by their colleagues and managers, working in a sector that interests them, and still report low morale in staff surveys and annual reviews. Faced with such a scenario, some heads of department and general counsel have come to what might at first seem an odd conclusion – that they should stop canceling one-to-one meetings with staff, and that this should be a rule that is strictly adhered to. Of course this rule does not fix all the sources of poor morale. But those who have implemented the ‘never cancel’ rule say that the effects are surprisingly wide ranging. First, while client service is the understandable priority for lawyers in any setting, an office where it always trumps internal matters that need attention creates an unhealthy working environment. Protecting some space for team considerations is an important correction to this outward-facing bias. Secondly, it is a common complaint that, put in a management position, lawyers spend insufficient time on staff management issues. If some of that time is ring-fenced in this way, managers will come closer to the targets they aspire to in this area. Thirdly, keeping to one-on-one meetings should mean that managers are made aware of issues within the team, or the fact that individuals are experiencing professional frustrations, before it is too late to deal with such problems. Of course, issues raised may include points about the manager’s own conduct, or that of clients, which again are better off dealt with sooner rather than later. As a workplace rule, this is a surprisingly hard one to stick to. But certainly those who have tried hard to adhere to it are positively evangelical about this rule’s ability to solve problems in these three key areas, and in the process raising morale.
Service charge – Flat – Restriction on recovery of service charge The claimant local authority, the lessor, was the freehold owner of five blocks of flats. The defendant company was the lessee of 15 of the flats. By cl 2(6) of the lease, the lessee convenanted with the lessor to pay and contribute a proportion of the expenses of repairing the exterior of the flat (see  of the judgment). In around 2003, the lessor took the view that extensive works were required to the blocks. The works in question amounted to ‘qualifying works’ within s 20 of the Landlord and Tenant Act 1985 (the Act) and therefore the lessor sought to comply with the consultation requirements imposed by s 20 by, inter alia, sending an estimated costs for the works on 12 March 2004. The lessor entered into a building contract with the chosen contractor. Under that building contract an administrator valued the work as it progressed and prepared certificates of valuation to identify the sums payable on account by the lessor to the contractor. There were altogether nine certificates issued. Certificates 1-7 inclusive were issued prior to 15 December 2006. On 23 February 2006, the lessor wrote to the lessee seeking payment of estimated costs within 28 days. The lessee failed to pay any sum. On 15 December 2006, the lessor wrote to the lessee enclosing the actual invoice for the major works. Section 20B(1) of the Act provided to the effect that if any of the costs of the service charge were incurred more than 18 months before a demand for payment of the service charge was served on the tenant, then the tenant was not liable to pay so much of the service charge as reflected the costs so incurred. Sub-section 2 provided that sub-s 1 was not to apply if, within a period of 18 months beginning with the date when the relevant costs in question had been incurred, the tenant was notified in writing that those costs had been incurred and that he would subsequently be required under the terms of his lease to contribute to them by the payment of a service charge. The lessor brought proceedings against the lessee to recover various sums which included sums said to be due under cl 2(6) of the leases. The lessee defended the proceedings on the basis that the relevant costs were incurred by the lessor more than 18 months before 15 December 2006 and relied on s 20B of the Act. The lessee applied to strike out the claim. That application was refused with the judge holding that the letter of 23 February 2006 was not a valid demand for the purposes of cl 2(6) of the leases and/or for the purpose of on s 20B(1). He considered that the letter of 23 February 2006 was a relevant notification for the purposes of s 20B(2) in that it notified the lessee that the costs which were the subject of s 20B of the Act had been incurred. He declined to strike out the proceedings. The lessee appealed. It was common ground that the letter of 15 December 2006 was, in point of form, a valid demand under cl 2(6) of the lease in each case and that the lessor had incurred costs in relation to the matters covered by certificates 1 to 7. The parties did not agree however as to the precise date when the lessor should be taken to have incurred costs for the purposes of s 20B in relation to certificates 1 to 7. The lessor accepted that the costs were incurred in respect of each of the certificates numbered 1 to 7 more than 18 months before the demand of 15 December 2006. Accordingly, if the demand of 15 December 2006 was the only relevant demand, then that demand did not comply with s 20B(). In relation to the costs incurred pursuant to those certificates, as it was not served on the lessee within the requisite period of 18 months from the date when the relevant costs were incurred. The lessor contended that the demand of 15 December 2006 was not the only relevant demand and that the letter of 23 February 2006 was a relevant demand for the purposes of s 20B(1) of the Act. If the letter of 23 February 2006 was a relevant demand, then the lessee accepted that the costs which were the subject of certificates 3 to 7 were incurred by the lessor within the relevant 18 month period. The issues to be determined were, inter alia: (i) whether the letter of 23 February 2006, was a valid demand for the purposes of cl 2(6) of the leases; and (ii) whether the letter of 23 February 2006, was a demand for payment of the service charge for the purposes of s 20B(1) of the Act. The parties did not agree as to the extent of the statutory requirements. In particular, they did not agree as to what information had to be given to satisfy the requirement that the tenant was notified ‘that those costs have been incurred’. The lessee submitted that a notice for the purposes of s 20B(2) had to state the amount of the costs which the lessor state had been incurred. The lessor submitted that it was not necessary to state the amount of such costs. He submitted that it was sufficient that the notification stated that the lessor had carried works or provided relevant services. The appeal would be allowed. (1) In the instant case, on a construction of cl 2(6) of the lease, because the letter of 23 February 2006 did not ask for a proportion of the lessor’s expenses but asked for a contribution based upon figures which had not, or had not necessarily, represented the lessor’s expenses, the letter had not conformed to the requirements of a demand for the purposes of cl 2(6) (see  of the judgment). (2) Section 20B(2) of the Act was to be interpreted as to be understood that the written notification had to state a figure for the costs which had already been incurred by the lessor. A notice which so stated would be valid for the purpose of sub-s (2) even if the costs which the lessor later put forward in a service charge demand had been in a lesser amount. Secondly, the notice for the purposes of sub-s (2) had to tell the lessee that the lessee would subsequently be required under the terms of his lease to contribute to those costs by the payment of a service charge. It was not necessary for the notice to tell the lessee what proportion of the cost would be passed on to the lessee nor what the resulting service charge demand would be (see  of the judgment). The letter of 23rd February 2006 had not satisfied the requirement of sub-s (2) that the notification contained a statement ‘that those costs had been incurred’, when it had not purported to state what the actual costs had been and it had contained a statement that the actual costs might be greater than the estimated costs which were referred to and that the lessor would wish to recover any excess over the estimated costs referred to in the letter (see  of the judgment). The letter of 23 February 2006 was not a demand for the purposes of cl 2(6) of the lease, nor a demand for payment of the service charge within s 20B(1) of the Act, nor a notification in writing for the purposes of s 20B(2) of the Act (see  of the judgment). Marie-Claire Bleasdale (instructed by Bude Nathan Iwanier) for the lessee. Nicholas Grundy (instructed by Legal Services, London Borough of Brent) for the lessor. Brent London Borough Council v Shulem B Association Ltd  All ER (D) 238 (Jun), (Morgan J)  EWHC 1663 (Ch)
Standard Chartered Bank v Ceylon Petroleum Corporation: QBD (Comm) (Mr Justice Hamblen): 1 August 2011 Interest – Court ordering award to claimant in US dollars – Judgments Act 1838 Pursuant to a substantive judgment delivered by the court in July 2011 (see All ER (D) 113 (Jul)), the court delivered a further judgment on the level of post-judgment interest payable to SCB. The issues were: (i) whether the post-judgment interest payable to SCB of $166,476,281 ordered to be paid was to be calculated by reference to: (a) the rate under the Judgments Act 1838; (b) the US prime rate; or (c) the contractual rate (see  of the judgment for the relevant term); and (ii) whether the 1838 act rate of interest payable on SCB’s costs should be postponed or apply from the date of the order. Consideration was given to section 44 of the Administration of Justice Act 1970. The court ruled: (1) On the true construction of the contract, it was not to be construed as an agreement that SCB would not be entitled to interest under the 1838 act. The inclusion of an English jurisdiction clause was not sufficient reason for the court to refuse to exercise its statutory discretion. If it was, it would exclude the discretion under section 44 of the 1970 Act in many cases. The discretion was there to enable the court to award interest at a rate appropriate to the currency in question. In the circumstances, it was appropriate for the court to exercise its discretion so as to award interest at a rate suitable for the currency of the judgment. Consequently, the appropriate rate would be the US prime rate (see , - of the judgment). (2) It was established law that the court should not routinely make an order postponing the date for liability under the 1838 act and it was necessary to justify a departure from the usual rate (see  of the judgment). In the circumstances, in respect of the payment on account which had been ordered, interest would accrue at the 1838 act rate. In respect of the disputed balance, in the exercise of the court’s discretion, a limited postponement of the application of that higher rate was justified and a four month postponement would be ordered (see  of the judgment). Robin Dicker QC and Jonathan Goldring (instructed by Linklaters) for the SCB; Ali Malek QC, Clive Freedman and James MacDonald (instructed by Gibson & Co) for the CPC.
R (on the application of Aguilar Quila) v Secretary of State for the Home Department; R (on the application of Bibi) v Secretary of State for the Home Department: SC (Justices of the Supreme Court – Lords Phillips (president), Brown, Clarke, Wilson, Lady Hale): 12 October 2011 Richard Drabble QC and Christopher Jacobs (instructed by Joint Council for the Welfare of Immigrants) for the first respondent; Al Mustakim and Lina Mattsson (instructed by Davies Blunden & Evans) for the second respondent; Angus McCullough QC and Andrea Lindsay Strugo (instructed by Treasury Solicitor) for the secretary of state; Karon Monaghan QC, Shahram Taghavi and Eric Fripp (instructed by Bates Wells & Braithwaite) for the first intervener; Henry Setright QC and Michael Gration (instructed by Dawson Cornwell) for the second intervener; Satvinder Juss (instructed by Riaz Khan & Co) for the third intervener. Leave to remain – Refusal of leave – Human rights – Right to respect for private and family life Paragraph 277 of the Immigration Rules (HC 395) (the rules) provides, so far as material: ‘Nothing in these rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another, if either the applicant or the sponsor will be aged under 21… on the date of arrival in the UK or (as the case may be) on the date on which the leave to remain or variation of leave would be granted.’ In November 2008, the defendant secretary of state for the home department amended paragraph 277 of the rules. The rules specified the requirement that a sponsor party be at least 18 years of age at the time of making an application for leave to enter the UK, leave to remain or variation of leave on marriage grounds. In November 2009, the secretary of state amended paragraph 277, changing the age requirement of the sponsor party from 18 to 21 (the amendment). The grant of a ‘marriage visa’ (strictly, entry clearance, leave to enter, leave to remain or variation of leave on marriage grounds) was forbidden unless both parties to the marriage or civil partnership would be aged 21 or over on the date of the applicant’s arrival in the UK or the grant of leave to enter, leave to remain or variation of leave as applicable. The instant proceedings concerned two appeals which had been joined as they concerned the same issue. In both cases, judicial review proceedings had been brought where the change of the age requirement had prevented the claimant from entering the UK. Both claimants sought to bring applications for judicial review of paragraph 277 of the rules. Their applications were dismissed. Following the hearing of their appeals, the Court of Appeal held that the secretary of state had applied the rules with the effect that her refusal to grant marriage visas was in breach of the claimants’ rights to respect for their private and family lives, under article 8 of the European Convention on Human Rights. The secretary of state appealed. The secretary of state submitted that the measure would prevent, deter or delay forced marriages, and was thereby justified by paragraph 2 of article 8 of the convention. The question arose as to whether the amendment was necessary in a democratic society. The appeal would be dismissed (Lord Brown dissenting). (1) On the evidence, it was clear that the number of forced marriages which the amendment would deter would be vastly smaller than the number of unforced marriages which it hindered. Neither in the material published prior to the introduction of the amendment, nor in the evidence in the instant case, had the secretary of state addressed that imbalance. On the evidence, the secretary of state had failed to establish that the amendment was no more than would be necessary to accomplish her objective and that it had struck a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages. In all events, she had failed to establish that the interference with the claimants’ rights under article 8 of the convention had been justified. Further, there was evidence that the desire to obtain a visa was not the predominant motive for forcing a child into marriage. It was impossible to tell how many forced marriages with non-resident spouses had been deterred, or how many forced marriages with resident spouses had been substituted for those which had been deterred. It was clear, however, that the amendment could have no effect upon forced marriages occurring in the UK or the EU. Furthermore, if the amendment was not effective in preventing a forced marriage, it could have the potential to do more harm than good. The risk existed that a young woman might be sent abroad and forced to marry there, then kept abroad until she could sponsor her husband to come to the UK. It was very difficult to rescue a young person who had been trapped into marriage abroad (see , ,  of the judgment). On the evidence, the secretary of state had failed to establish that the amendment was no more than was necessary to accomplish her objective, nor had she established that it struck a fair balance between the rights of the parties to unforced marriages and the interests of the community in preventing forced marriages (see  of the judgment). (2) The right to marriage was a fundamental right. It did not include the right to marry in any particular place, at least if it was possible to marry elsewhere. It was not a qualified right, and the state could only restrict it to a limited extent, and not in such a way as to impair its essence (see  of the judgment). The delay on entry was not designed to detect and deter those marriages which were or might be forced. It was a blanket rule that applied to all marriages, whether forced or free. It imposed a delay on cohabitation in the place of choice which could act as at least as severe a deterrent as a large fee. Those factors lent weight to the conclusion that it was a disproportionate and unjustified interference with the right to respect for family life to use that interference for the purpose of impeding the exercise of another and even more fundamental convention right in an unacceptable way (see  of the judgment). Decision of Sedley, Pitchford and Gross LJJ  All ER (D) 250 (Dec) affirmed.
David Pickup is a partner in Aylesbury based Pickup & Scott I was ill just before Christmas, which is not a good time to be off for various reasons. I will not bore you with the details but it was unpleasant. However, it gave me a chance to get up to speed on the mysterious world of daytime television. Most of the advertisements are for people who, well, put simply, are stuck at home. There are plenty of advertisements offering advice on the various ailments that persons of a certain age are likely to suffer – mostly toilet related. There are also lots of advertisements for making claims of different types of claims. I expected that but not the number of different claims firms. I could not tell which were solicitors and which were another breed of claimers. I am sure they are fine upstanding firms in many ways but they all look the same and have similar sounding names. If you have had an accident, or been mis-sold something how does the victim decide which one to use? Fortunately I recovered to enjoy more festive television, which in the lead up to Charles Dickens’ anniversary featured lots of Dickensian lawyers. Grim-faced men with lots of facial hair, quill pens and simpering clerks. How things have changed. We now have computers not quill pens. My point, if you were wondering, is that the public’s concept of lawyers is either claims firms or Great Expectations. An exaggeration I know but there is some truth in it. Doctors have exciting, glamorous programmes about emergency units; even vets get a better press curing cuddly animals. Which brings me to resolutions. Scrooge in A Christmas Carol vowed to live in the past, present and future. So those are my resolutions. Firstly the past: I will prepare for Christmas better next year. I will give more time, write cards, see people and all the rest. I know I will not but I ought to. I will also enjoy the heritage we have as lawyers. We have a history of service and occasionally as a profession, firms, or as individuals, get it right and make a difference to someone’s life. I will live in the present. I will plan better and work efficiently. I will say ‘no’ when faced with a client asking me to handle a case in an area I am unfamiliar with. I will know what is going on, what is in colleagues’ in-trays, filing cabinets etc. I will encourage an atmosphere of openness. Yes, dear reader, you do all those things now. I will live in the future. I will think how IT, whatever that is, can help. I will ponder about what services the public want. I will encourage youngsters to enter the law if they really want, not because it is a quick route to fame and fortune but because it is a great profession.
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Get your free guest access SIGN UP TODAY Subscribe now for unlimited access Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters