September 2013 Archive

Warwick District Council, along with councils countrywide, is searching for suitable land for establishing authorised sites for travelling communities as per their obligations under the National Planning Policy Framework (NPPF). Having discounted the use of Council-owned land for various reasons, it has identified 20 potential sites, all of which are on private land. In theory, authorised sites should reduce the number of incidents of squatting. However, until the situation is resolved, there are steps you can take to deal with illegal encampments.

In July this year, the specialist Technology and Construction Court heard a case (ABB Ltd v Bam Nuttall Limited) regarding a breach of the rules of natural justice by an adjudicator. The case stemmed from a dispute over a claim for payment by Bam which went to adjudication and was settled in Bam’s favour. ABB challenged the adjudicator’s decision on the basis that it was invalid and amounted to a breach of natural justice. The court upheld ABB’s challenge. This type of case is unusual as most adjudicators’ decisions are enforced by the courts but it does flag the necessity of carefully considering any adjudicator’s decision before either taking steps to enforce it, or refusing to comply with it.

In Thameside Construction Company Limited v Mr and Mrs Stevens the Technology and Construction Court had to consider whether an employer could set-off liquidated damages against the adjudicator’s decision awarded in favour of the contractor. Based on the wording, the Stevens argued that the true nature of the decision was that it amounted to an interim certificate or valuation, so they could set off against it. The Judge disagreed and ordered the Stevens to comply with the adjudicator’s decision. The case is a useful summary and reminder to parties of the very limited grounds on which you can set off against an adjudicator’s decision.

In the first case of its kind, a judge in Parkwood Leisure Limited v Laing O’Rourke Wales and West Limited ruled that a warranty can be a construction contract for the purposes of the Construction Act, and so subject to adjudication. However, he made it clear that each case of this type would turn on its facts and that the wording of the warranty would be a crucial factor in deciding whether or not any dispute arising from it could be adjudicated rather than dealt with in court. Therefore, those issuing warranties will need to draft them carefully to avoid them being interpreted as construction contracts.

Courts have to tread a narrow line in cases when procurement exercises are challenged. On the one hand they need to ensure that those bodies carrying out the exercise do not breach the Public Contract Regulations 2006 and cooperate, within reason, with unsuccessful bidders request for information and documentation relating to the bid. On the other, they cannot encourage ‘fishing expeditions’ that is, an attempt to try and find something to support what would otherwise be a very weak or hopeless claim. In Roche Diagnostics Limited v The Mid Yorkshire Hospitals NHS Trust, we examine a case which is likely to be used in the future by disappointed tenderers who believe that the public procurement process has not been carried out fairly or in accordance with the legal rules.

The enthusiasm for arrays of ground mounted solar panels is growing by the day with 604 installations either built, approved or in the planning pipeline. To date, the majority of large solar arrays have been sited on brownfield sites (the largest to date on an old airfield in Leicestershire) but we are seeing more and more interest from farmers who have been approached by operators keen to install panels on their land.

In line with the government’s objective to encourage greater involvement by employees in the businesses they work for and to introduce more flexibility for employers, a new category of employee – the employee shareholder – was introduced on 1 September. Although there are potentially significant tax reliefs available for employee shareholders, there are associated conditions and income tax issues to consider which mean that employee shareholder status won’t be appropriate for everyone.

In July, Compromise Agreements were replaced by Settlement Agreements which enable an employer and employee to terminate the employment relationship on agreed terms and provide greater protection against the discussions being used against the other party if negotiations are unsuccessful.

A formal redress scheme to compensate certain customers was ordered by the banks’ regulator, the Financial Conduct Authority, in relation to Interest Rate Hedging Products (IRHPs) and that is now very much up and running with some awards already ordered, as of September 2013. This can be actionable at court, but is that necessary when there are alternative routes such as FOS and redress schemes to provide compensation?

There has been another case where solicitors who acted in breach of trust when acting for the lender have been relieved from liability under section 61 of the Trustee Act 1925. In Santander UK plc v R A Legal Solicitors (2013), the High Court has found in favour of honest solicitors who released their lender client's funds when holding forged documents without knowledge of the fraud.