February 2012 Archive

Unmarried couples and bankruptcy

The recent case of Kernott v Jones has helped to provide some clarity as to how the court decides the level of a co-habitee’s interest in a property where the legal title is held jointly by introducing the concept of fairness into the decision-making process. However, the increasing impact of “fairness” on a court’s decision may only muddy the waters for a Trustee in Bankruptcy when to establish the level of a co-habiting bankrupt’s interest in the property for the purpose of realising that asset in the bankruptcy estate.

Recovery of damages under the Animals Act 1971

The subject of compensation and liability has been a hot topic among those who earn their living from horses. Indeed, the perceived ‘compensation culture’ has been blamed for the hike in indemnity insurance for equestrian centres and held responsible for several riding schools going out of business. However, a recent decision by the Court of Appeal should go some way towards reassuring those involved with horses that, providing a common sense approach to managing risk is undertaken, claims against them for injury will not necessarily result in an automatic pay out.

Salary sacrifice arrangements and the Reed Employment case

The much anticipated decision from the first-tier tribunal case of Reed Employment Plc ("Reed") v HMRC has now been issued in favour of HMRC. The case concerned the employment tax treatment of two travel allowance schemes that were held out as being salary sacrifice arrangements. This decision focused on the contracts between Reed and its workers, the lack of clarity of the arrangement and the fact that no salary sacrifice was found to exist as a matter of fact. The tax and NIC owing by Reed, along with interest, has been calculated at £158m.

Directors' duties: business and personal dealings should be kept separate

Is there anything wrong if a director enters into an agreement with a long standing customer for a loan of equipment to carry out works on their own home? In the case of Powers v Premier Waste Management Limited (2011) the loan took the form of materials and equipment for home renovation. The loan appeared to have no effect on the profitability or otherwise of the director’s own company. That is, until a dispute arose some years later between the director’s company and the customer who supplied the loan. The director’s company took a dim view of his conduct and sued him.

Professional negligence claims causation

Solicitors negligence; but would you have done anything different? One of the key elements in recovering damages from a negligent professional is proving that their negligence caused you loss. In other words, can you show that you relied on the advice and would have done something different if you had been advised properly?

The importance of a written Partnership Agreement

The Partnership Act 1890 (the “1890 Act”) contains a series of provisions setting out what happens if there is no written partnership agreement in place. However, not all of the default positions are desirable, including those relating to management of the business; holding of property;sharing profits and interest on capital;introducing new partners and removing partners; and dissolution and the distribution of assets post dissolution.

Is an expert really necessary in professional negligence claims?

Usually, when you allege solicitors negligence, you need to provide the opinion of an expert in that field to support your claim. The expert needs to review all of the circumstances objectively and give reasons why the defendant fell below the standard of a reasonably competent professional in that situation. Typically both parties serve expert evidence, one saying that the defendant was negligent, the other explaining why the defendant was not negligent, or on occasions a jointly appointed expert might provide a single report. At trial the judge uses this evidence to decide whether the defendant was negligent.

What does proceeding 'regularly and diligently' with works mean?

Some standard form contracts include the express obligation that the contractor must proceed “regularly and diligently” with the works. What does this obligation entail? The case of Leander Construction Limited v Mulalley and Company Ltd [2011] EWHC 3449 (TCC)highlights the importance of making sure your terms and conditions are carefully drafted so they have the effect you want them to have.
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