In January 2017, the House of Lords’ EU Justice Sub-Committee will hear evidence from two senior UK Judges on the significance of EU legislation designed to facilitate cross-border civil disputes. However, it cannot be avoided that there is the smell of uncertainty about the detail of the consequences for us for ending the UK/EU relationship, if it ends hard.
At present, EU legislation protects parties’ abilities to choose what governing law there should be for their contractual relationships and the ability to choose forms a fundamental freedom offered by English law.
The current EU framework applicable to contractual and non-contractual obligations is enshrined in the Rome I and Rome II Regulations, respectively.
It is not beyond the realms of possibility that a decision could be taken to leave the rules as set out in the above regulations intact after Brexit. A possible consequence being that the English Courts would be the final arbiter of how the rules are applied - ultimately a job reserved for the European Court of Justice as things stand. If that were to happen, then nothing immediate would change, but it is possible that the interpretation of the two regulations could start to differ between the UK and the remaining EU member states over time.
If the Rome I and Rome II Regulations were no longer to apply following Brexit, then it is possible that the UK would revert back to the rules in force before those regulations became law. As such, in regards to contractual obligations, the Rome Convention; which applied to the law governing contracts made between April 1991 and 17 December 2009 could apply, which, of itself, would not materially alter the present position as we know it. However, in regard to non-contractual obligations, the Private International Law (Miscellaneous Provisions) Act 1995 - which is a regime which is unlike to Rome II - could operate so that the parties would not have an express right to choose the law applicable to non-contractual relations between them.
However, it’s anticipated that when the UK eventually leaves the EU, the courts of EU member states will continue to respect the parties’ choice as to governing law as before; so that on choosing English law the parties to a contract will still enjoy an application of the rules set out in Rome I and II.
The case of Billington –v- Davies and another  EWHC 1919 [CH] heard in the High Court, considered an application by a Claimant for default judgment where the Defendants Defence was filed at Court after the deadline set for filing.
In considering whether to give default judgment, the key question for the Court is whether or not the Defence has been filed, rather than the mertis of the defence. There are strict time limits for acknowledging service and filing a Defence which are calculated by reference to service of the Claimant’s Particulars of Claim on the Defendant. Within 14 days after service of Particulars of Claim, a Defendant must have filed either an Acknowledgment of Service or a Defence. If neither is filed after 14 days, default judgment can be entered. If an Acknowledgment of Service is filed, a Defendant must file a Defence within 28 days after service on him of the Particulars of Claim. If no Defence is filed within that deadline default judgment can be entered.
In Billington the First Defendant did not file a Defence until the day before the Hearing of the Claimant’s application for judgment in default. It was argued that it was a pre-condition for obtaining default judgment that a Defence must not have been filed; the implication being that even a late Defence would be enough to scupper a successful application for default judgment. Deputy Master Pickering rejected this argument. In his judgment, the reference to a Defence in the CPR “was to a Defence which had either been served within time, or in respect of which an extension had been granted”. In the absence of either in this case, the Court considered the significance of a note contained in the White Book (the rule book on civil procedures), which stated that filing a Defence late would prevent a Claimant obtaining default judgment. It was held by the Court that this note was essentially wrong.
It was found that neither the Defendant’s lack of funding, nor the existence of negotiations between the parties existing prior to the application for default judgment, were good reasons for delaying filing a Defence. The Deputy Master found that this was not an appropriate case where he should exercise his discretion to extend time.
This case serves as a useful reminder for all those served with Claim Forms on the perils of ignoring the time limits for filing a Defence. Anyone served with a Claim Form and/or Particulars of Claim by a Claimant, should seek legal advice as quickly as they can to avoid filing and serving documents late and/or pleading facts which are unhelpful or not accurate or comprehensive enough for both the Court and the other side to understand the essential facts in the case.
Legal 500 highlighted a number of notable cases including:
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If you would like a member of our team to advise you on any business or personal dispute please contact our Dispute Resolution Department on 01708 229444 (Upminster or Hornchurch), 01277 211755 (Brentwood office) or 01702 418433 (Leigh-on-Sea).
Pokemon Go has had over 6 million downloads since it was launched in the UK in mid-July. Pokemon Go is a new mobile augmented reality game where players, called trainers, catch virtual monsters situated in the real world. Its co-developers, Nintendo and Niantic, have earned millions from the time of its launch and it has been credited for getting the generation of computer game teenagers more active. However, just as it has some advantages, the game poses numerous disadvantages and legal impediments.
The game interacts with an actual map of your surroundings to help you to find and catch the virtual monsters. As such, it has the element of augmented reality and is thus covered by this law in UK. This therefore raises concerns about privacy and security especially since it is grounded on GPS and geolocation. The game provides a database of the individual’s daily routines and movement. This then raises the question of who has access to such valuable data and who is legally liable if something untoward happens to the player.
Another legal problem that may arise from Pokemon Go relates to virtual location rights. Given that the game is quite new, it is currently not covered by any legislation. However since many of the virtual locations designated as ‘gyms’ or PokeStops are private properties, private businesses, schools and churches the game may well lead to illegal trespassing and potential nuisance claims.
The first legal case against Pokemon developers was filed in the US early this month. The case is the first class action lawsuit that seeks damages for flagrant disregard on the game’s effect on real world locations. The class suit amounts to over £3.7 million and is filed before the California Northern District Court under Marder v. Niantic, Inc. et al (4:16-cv-04300).
It may not be long before cases will also be filed against UK Pokemon Go players. The UK police have already issued warnings against players on trespassing. They have also warned against going to unlit or busy areas where players can be targets of thieves. Other risks that come with playing the game have been identified already from focusing on the mobile device while crossing streets, driving, and even entering police sites with non-police business.
Our Personal Injury Department recently acted for a female Claimant making a dependency claim arising from the death of her partner from mesothelioma due to occupational asbestos exposure caused by his former employers.
Her partner died without making a Will. Because they were not married, she was not able to make a claim under the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA) in respect of the pain, suffering and loss of amenity he suffered before his death.
The adult children of the deceased from his marriage (his wife having pre-deceased him) settled a LRMPA claim on behalf of his estate with the insurers for the negligent employer.
After instructing Stephen Green, a Partner and personal injury specialist at Pinney Talfourd, our Claimant made a dependency claim under the Fatal Accidents Act 1976 by virtue of her 6 year co-habitation period with the deceased.
The employers insurers made an admission of breach of duty and causation.
Following the United Kingdom’s historic decision to leave the European Union, anyone owed money by an individual or business in the European Union is advised to act quickly and take advantage of current European debt recovery procedures.
You could be forgiven for thinking that it might be complicated or prohibitively expensive to recover your debt, especially if the amount outstanding is small. However, there are several procedures available to allow money claims to be recovered both quickly and easily.
It is unclear for how long these procedures will remain available in the courts of England and Wales. Debt recovery expert Stephen Eccles at Pinney Talfourd Solicitors in Essex outlines the current options.
The European small claims procedure enables businesses and consumers to issue small claims in all member states of the European Union (EU). The process is an alternative to using the national law of the particular member state and is suitable for cases where you consider that the claim may be contested. In this country European small claims are treated in the same way as domestic small claims matters. The procedure uses standard forms that can be used by all parties across the whole of the EU and there are standard time limits to ensure effectiveness. Once a judgment has been officially recognised, it is automatically enforceable in other member states. Most European small claims are conducted on paper only, although it is possible to have an oral hearing, which may be conducted via video link if necessary.
This procedure is suitable for monetary and non-monetary claims up to a value of €2,000 (excluding interest and costs). European small claims are not suitable for claims over marital property, property that is the subject of a will, employment, tenancy, bankruptcy or other claims, so it is always worth seeking advice on whether your claim is likely to be suitable for the European small claims procedure before making an application.
Section 21 of the Housing Act 1988 allows landlords to end an assured shorthold tenancy by serving notice, without having to show any fault on the part of the tenant. Stephen Eccles, Head of Dispute Resolution law at Pinney Talfourd in Upminster, is our expert in landlord and tenant disputes. He outlines amendments to section 21 introduced from 1 October 2015 and warns of new traps for unwary landlords.
The amendments to section 21 affect three key areas:
There are also new rules requiring rent paid in advance to be repaid; and measures to stop landlords from evicting tenants who complain about the condition of the property.
Housing matters in Wales are now devolved, so these changes apply only to tenancies in England. The new rules currently affect assured shorthold tenancies granted on or after 1 October 2015, but not ‘continuation’ tenancies that arise automatically if a tenant stays on after the initial fixed term ends. Continuation tenancies will be affected from 1 October 2018. Until then, landlords will need advice on what sort of assured shorthold tenancy they are dealing with before relying on section 21.
You cannot serve a section 21 notice unless you have given the tenant: