Tag Archives: Fladgate

ILN Today Post

“Multi-let-tricity” – electrifying changes

“Electricity” – a song written by Elton John and Lee Hall for Billy Elliot – reveals young Billy feeling “electricity, electricity, sparks inside of me, and I’m free, I’m free”. Some tenants of multi-let buildings may also feel as free as Billy, knowing they may be free to choose their own energy supplier.

In 2008, the Court of Justice of the European Union held that allowing an airport to enter into an exclusive contact for the supply of energy is contrary to EU competition rules. The decision had significant implications, not just for the development of distributed energy and private wire networks, but also for the Government’s plans to deliver “zero carbon buildings”.

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Hard Brexit and UK Trade: A Bold Step?

The recent Conservative Party Conference in Birmingham has served to reinforce expectations of a “hard Brexit” when the UK seeks to negotiate withdrawal arrangements with the other EU Member States. The discussions are likely to be difficult and protracted, with no guarantee of a satisfactory outcome.

In view of that situation, Charles Proctor has been reviewing the options for the UK and has concluded that there may be a more radical solution. His proposal is outlined in the attached Briefing.

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Recognition

I was very pleased by the latest edition of the Legal 500 directory. It rightly claims to be the leading guide to law firms in the UK, and is partly based on discussions with clients, referees and competitor firms.  Fladgate got many positive rankings and comments, including:

Fladgate LLP’s ‘knowledge of how the art market works is outstanding’. Under the leadership of Paul Howcroft, who is ‘very clever, approachable, pragmatic and ego-free’, the practice acts for collectors, investors and intermediaries, both domestic and overseas, in transactions and disputes.

 
I shan’t argue with that.  If I had an ego, it would be suitably inflated!
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The Wadlow Shakespeare?

For the last couple of years, I’ve been involved with my client Steve Wadlow in his quest to determine whether his family owns what could be the only known proven lifetime portrait of Shakespeare.  It would be particularly topical in this the fourth centenary of the bard’s death.

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Another CITES case

Further to my last post about importing ivory, a recent judgment on a similar case caught my eye. 

In Juliet Forster-Copperi v Director of Border Revenue [2016] UKFTT 0157 (TC), UK Border Force had seized a whalebone sculpture at Felixstowe Docks in September 2014, and that was challenged by an appeal to the First Tier Tribunal. 
 

The appellant was the creator and owner of the sculpture.  She was a British born artist and sculptress, now in her 80s, who had lived in South Africa and decided to return to the UK.  She had been wrongly told by her shippers that no licence was needed to export the sculpture from South Africa, and she did not even think about whether a licence was needed to import into the UK.  Whales and their derivatives are protected by CITES and hence the seizure.  The bone was very old and had been gathered from the seashore.  Ironically, in the current circumstances, the appellant told the tribunal that the sculpture was part of a series she had been working on which “make a strong statement on man’s destruction of the environment, flora, birds and creatures of the sea”. The tribunal accepted that and that it was “a serious work of art”. 

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Excessive service charges and how to dispute them

This article is taken from the latest edition of Fladgate’s Fashion Update. Please email the marketing team onmarketing@fladgate.com to be added to the mailing list for future updates.

Retail shops obtain a number of benefits from taking premises which are within a shopping centre or on a section of high street where one landlord is the owner of a number of neighbouring premises. In particular it often means that the responsibility for providing services, including the maintenance and repair of the common areas, is retained by the landlord rather than being dealt with by individual tenants attempting to work together. This is a simpler system for tenants, who then only have to deal with paying for a relevant proportion of the cost of those services to the landlord as a service charge, the details of which will be set out in their lease.

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IP housekeeping – a canter through EU reforms coming your way during 2016

Here’s a quick “heads up” of what I see as the key reforms of IP laws in the pipeline at the European Union (EU) level that are likely to affect EU regional registrations of IP, as well as the national laws of each and every EU Member State.  You will no doubt be reading more about these topics during 2016.

Patents

The new EU Unitary Patent (UP) is on the starting blocks: most of the key documents, including secondary rules and regulations for the UP and the associated arrangements for the Unitary Patent Court (UPC), are now agreed[1]. But ratification of the UPC agreement is still awaited from the 13 Member States required, including the UK and Germany (both of whose ratification is mandatory) for it, and so the UP, to come into force.  This is expected to occur during 2016 and the hope is that the UP will be up and running by the beginning of 2017.  Once that happens, innovators will be able to apply for one patent to cover the whole EU (without the need for converting to individual national registrations).

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Payment in construction contracts: what have we learnt?

Over the last year we have seen two sets of three cases[1] on the issue of payment provisions in construction contracts.  Payment in construction contracts on projects in Great Britain is an issue underpinned by a statutory framework[2] intended to improve cash flow to the construction supply chain by the inclusion of an adequate payment mechanism in construction contracts and the service of certain notices at key stages in the payment cycle.  A failure on behalf of an employer to serve a relevant notice in cases where a contractor’s application for payment is not agreed can result in an automatic right to payment in full of the amount claimed without consideration of the underlying merits of the claim.

Matters are complicated by the fact that in addition to the statutory framework and the general principles that apply, payment provisions in standard form contracts can vary immensely.  In the first set of cases for example, there was some debate as to how two of the decisions were to be applied as it had been argued that they appeared inconsistent.  The court subsequently clarified that the difference resulted from the manner in which interim payments and a payment upon termination were dealt with under the JCT Design and Build Contract.  In the absence of an employer serving a payment or pay less notice, the amount of an interim payment shall be “the sum stated as due in the Interim Application” whereas the payment upon termination in the absence of the required notices shall be “the amount properly due in respect of the account”.  Close attention is therefore required to the payment provisions in the relevant contract.

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The UK implements the remainder of the Transparency Directive Amending Directive changes

Summary of the changes

On 26 November 2015, the UK completed the implementation of the Transparency Directive Amending Directive.  This has entailed amendments to the Financial Services and Markets Act 2000 (FSMA) and to the Disclosure and Transparency Rules (DTRs).  Key changes include:

  • a new power for the Financial Conduct Authority (FCA) to apply to court for an order suspending the voting rights of shares, for serious breach of the major shareholdings notifications regime;
  • a requirement for the FCA to publish information on the type and nature of breaches of the transparency regime, together with the identity of the person sanctioned, subject to a discretion to publish anonymously in certain circumstances;
  • extending the deadline for publishing half-yearly financial reports from two to three months after the end of the reporting period;
  • increasing the period during which half-yearly financial reports must remain publicly available from five to ten years;
  • a new exemption from the notification obligations for voting rights attached to shares that have been acquired for stabilisation purposes; and
  • removing the exemption for stock lending, so that it must be disclosed by both lender and borrower at the 5%, 10% and higher thresholds required by the Transparency Directive.

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No jurisdiction for creditors who have proved elsewhere

In Stichting Shell Pensioenfonds v Krys [2014] UKPC 41, the Privy Council has held that where a company was being wound up in a jurisdiction where it was incorporated, and where a foreign creditor had submitted a proof of debt to the liquidators, that creditor had submitted to the jurisdiction of the administering court, and could not bring proceedings in its own jurisdiction with the aim of obtaining priority over other creditors.

The creditor was a Dutch pension fund who had invested in a BVI investment fund but was insolvent, having participated in Bernard Madoff’s Ponzi Scheme.  The creditor had submitted a proof of debt to the liquidators in the BVI before proceeding in the Netherlands with a view to enforcing against cash held in Ireland by an intermediate company.  The BVI Court of Appeal issued an injunction restraining the Dutch proceedings on the basis that BVI statutory rules of distribution prevented a creditor from gaining priority through a different jurisdiction.

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