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Resolving disputes in 2015

JacksonReport
"The Jackson Reforms" look set to continue to change the litigation landscape in 2015. Head of Dispute Resolution, Stephen Eccles, looks at what to expect.
 
There have been key changes in the rules of litigation over the last couple of years and new rules and procedures are currently working through the civil justice system. These have become known as “The Jackson Reforms”

It is the development of these new rules and procedures that represent change anticipated through 2015.

THE MOST RELEVANT CHANGES TO COMMERCIAL DISPUTES ARE:

  • the expansion of permitted contingency fee arrangements
  • increases to damages where a Defendant fails to beat a Claimant’s settlement offer
  • cost budgeting
The rules of procedure (CPR) have been amended to promote the avoidance of delay and a saving of legal costs. There will be a much stricter approach to 'parties to litigation' complying with each and every part of Court Orders made in the management of cases with stricter deadlines and timetables.

COURT COSTS 

The reforms have resulted in a vast increase in applications to the Court, an unfortunate and unintended consequence of the reforms. This comes at a time when the County Court system is suffering considerable difficulties in dealing with existing workloads and no additional resources for the County Court system, indeed rather the reverse.

We do not expect to see any increase in the funding of the Court system save through the increase in Court fees. We expect to see Court fees increase significantly both for issue of proceedings, and all applications, including Trial fees. The government’s aim is to make the Court system self-funding through the Court fee structure.  It is a particular worry that the Court system will not be able to cope and we are seeing considerable delays in the Court system in obtaining dates for hearing of applications and Trials. 

ALTERNATIVE DISPUTE RESOLUTION

There continues to be considerable emphasis by the Judiciary on attempting to settle disputes without recourse to the Courts via alternative dispute resolution (ADR) which includes both arbitration and mediation. 

The Judiciary have made it clear that parties unreasonably refusing to mediate may well face cost sanctions. Cost sanctions are the primary method by which the Judiciary will seek to limit litigation and encourage parties to use ADR.

CONCLUSION

It is more important than ever to obtain legal advice at a very early stage in dispute resolution. If litigation is commenced, the combination of cost sanctions and the Jackson Reforms mean that a case must be ready to proceed to Trial on issue. Therefore we expect to see much more pre-action correspondence and fewer issued cases as prudent litigators will not wish to issue proceedings prematurely.

Where proceedings are issued, we expect to see much more detailed timetabling by the Courts which, combined with the much greater sanctions available for non-compliance with Orders, will substantially discourage the issue of speculative or under prepared litigation cases.

I will keep you up to date on developments with these reforms in the monthly Pinney Talfourd newsletter. If you are not already on our mailing list you can subscribe here.

In the meantime, if you need to discuss what these reforms will mean for any of your current disputes please contact me.

 
This article was written by Stephen Eccles, Partner and Head of Dispute Resolution at Pinney Talfourd Solicitors. This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at February 2015.
 
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More employment changes in store for 2015

AlexP
2014 saw a number of changes in employment law and 2015 looks to continue at the same pace.

Our employment law solicitor Alex Pearce has been providing regular updates throughout 2014 on the changes in employment law. Now he looks at what's in store in the coming year.

A look back

Employment law has always been a fast paced area of law with frequent changes.

As we enter into a New Year, 2014 saw a number of major changes to employment law including:

  • changes to TUPE 2006
  • ACAS Early Conciliation became mandatory
  • discrimination questionnaires were abolished
  • financial penalties imposed by Tribunals for employers who lose in the Employment Tribunal where there are aggravating factors 
  • the right to request flexible working for all employees with 26 weeks service come into force


A look forward

2015 will bring about further changes.

This month we have already seen the new clawback provisions which apply to any variable remuneration awarded by PRA-authorised firms since 1 January 2015 and a ban on "overseas only" recruitment by employment agencies.

On the 5 April 2015, a new system of shared parental leave will be available to parents of children due to be born or placed for adoption with them on or after that date. Eligible employees will be entitled to a maximum of 52 weeks' leave and 39 weeks' statutory pay upon the birth or adoption of a child, which can be shared between the parents.

Continue reading
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2015 - the year of the consumer?

Terri-Corti
2014 saw the main focus of commercial law on consumer protection legislation. Terri Corti looks at what this means for you the consumer.

The Consumer Rights Directive

The Consumer Rights Directive came into force on 13 June 2014 and strengthens the existing Distance Selling Regulations. This means that consumers cannot be subject to unwarranted and additional charges e.g. credit card payment surcharges must now not be ‘excessive’.

It also adds additional automatic rights of cancellation for consumer contracts, so that, for instance, ancillary contracts are also automatically cancelled at the same time.


The Consumer Protection from Unfair Trading Regulations

The Government added a new right to sue for aggressive or misleading selling practices from 1 October 2014; this is again a protection limited to consumers.

This give you new rights to redress - specifically if you've been the victim of a misleading action - for example a false statement - or aggressive selling.

These break down into three key areas:

  • A right to undo the contract. You will be able to end the contract as long as you haven't fully consumed goods or digital products, or received a service in full. To get a refund you will also have to exercise your right to unwind the contract not more than 90 days from when you received the goods or the service started.  This is on the provision that any goods supplied to you are made available for collection by the trader. 
  • A right to a discount on the price paid. You will be able to seek a discount in respect of past or future payments due under a contract. The new regulations entitle you to a 25%, 50%, 75% or 100% discount on the payments depending on whether the trader's breach is considered to be minor, significant, serious or very serious.  The level of seriousness of the trader's actions will depend on their behaviour, the impact this has had on you and how long it has been since you signed the contract.
  • An entitlement to seek damages. If you incur a financial loss that you wouldn't have done if it weren't for the trader's actions, you will be able to make a claim for damages.  A claim can also be made if you have suffered alarm, distress or physical inconvenience or discomfort as a result of the trader's actions. Be aware that these regulations give the trader a defence to a claim for damages in certain circumstance, for example if they can demonstrate that their actions were accidental, due to a mistake or factors outside their control. 
Generally, this emphasis on consumer legislation is set to continue in 2015 with the Consumer Rights Bill and the Small Business, Enterprise and Employment Bill both originally scheduled to receive the Royal Assent (and so become law) in this Parliamentary session.

However, the General Election of 2015 is fast approaching, and it may well be that this ‘housekeeping’ legislation goes by the wayside in the face of an incoming Parliament’s new legislative programme.

 

The Company and Commercial team will be providing regular updates and information in the monthly Pinney Talfourd newsletter. If you are not already on our mailing list you can subscribe here.

 
This article was written by Terri Corti, Consultant Solicitor in the Commercial Team at Pinney Talfourd. This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at January 2015.
 
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Property Prospects in 2015

Julien-Pritchard
With the dawn of a new year, what should we expect 2015 to bring for property practitioners? Head of Commercial Property, Julien Pritchard, gives us an insight.
The influence of the approaching general election on 7 May 2015 was evident through much of the 2014 Autumn Statement, not least the surprise restructuring of Stamp Duty Land Tax. 

Political commentators have enjoyed characterising the changes as canny, a sharp attempt to outmanoeuvre the proponents of a mansion tax. For those working in the residential property market it will be interesting to see what effect the change in rates has on the spring market in 2015.

Highlights to look out for in 2015 include:

  • A year behind schedule, the new Common Agricultural Policy regime will get underway with the commencement of the Basic Payment Scheme and work to flesh out the successor Rural Development Programme continuing. We shall have to wait and see the impact this has on the agricultural sector.
  • Landlord and tenant lawyers will be delighted if the Supreme Court hears the appeal in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another [2014] this year. This is a case which required a lease to contain an express clause to refund rent paid in advance following the exercise of a break in a lease and is viewed as unfair by many practitioners. As leave to appeal was only granted in November 2014, having this decision reviewed in 2015 may be optimistic.
  • The immigration pilot requiring residential landlord's to check the immigration status of prospective tenants and occupiers is likely to be expanded across further regions.
  • The Law Commission published its final report, Rights to Light (Law Com No 356) and draft Right to Light (Injunctions) Bill, in December 2014, recommending significant changes in the law relating to rights to light. The government's interim response is anticipated by late spring, and its final response before the year ends. This will impact on developers in the coming months and years.
  • The Stamp Duty Land Tax Bill 2014-15 (which has been given provisional statutory effect by virtue of a House of Commons resolution under the Provisional Collection of Taxes Act 1968).
  • In the 2014 Autumn Statement, the government announced both a structural review of business rates (to report by Budget 2016) and publication, for comment, of a paper on business rates avoidance (now published). Various sections of the business community had been lobbying for the structural review and will be eager to participate in consultations and evidence gathering during 2015. As we all know business rates and their application can make or break a business and are of particular importance to some entities such as Charities who currently have an exemption.
I will be keeping you up to date on developments within the world of commercial property in the monthly Pinney Talfourd newsletter. If you are not already on our mailing list you can subscribe here.

In the meantime, I wish you all a prosperous 2015.


This article was written by Julien Pritchard, Partner and Head of the Commercial Property Team at Pinney Talfourd. This article is only intended to provide a general summary and does not constitute legal advice. Specific legal advice should be taken on each individual matter. This article is based on the law as at January 2015.
 
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