Category Archive Litigation

Litigation – CPR 52.30 Re-opening of an Appeal

A judgment was handed down by the Court of Appeal recently considering the criteria required when applying to seek permission to re-open an appeal or a permission to appeal application. A panel of two Lord Justices of Appeal refused, after an oral hearing, to re-open a permission to appeal application. The respondents did not appear but some had sent in short written representations objecting to the application to re-open the permission to appeal decision.

It is interesting to note that the Lord Justice of Appeal, who originally refused the permission to appeal application on paper, had recused himself for another Lord Justice to order at an oral hearing that the application to re-open be adjourned to a further oral hearing before a two-judge court.

Therefore, in total, four Court of Appeal judges considered the case.

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Commercial Litigation: Trade Mark – Milk

The Supreme Court has ruled recently that the phrase ‘post milk generation’ cannot be used on an oat based product. This is due to regulations that prevent the word ‘milk’ being used on non-milk products.

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Redundancies are Peaking

Business confidence is very poor sparking a large increase in settlement agreements high street solicitors are reporting in conditions not witnessed since the pandemic. London appears to be being hit heavily, notably east London, and those under 35. The hospitality and retail sectors are particularly affected.

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Insolvencies Rising

Insolvencies increased last month by more than 1.5% than in September. This suggests that recession is more likely than has been forecasted.

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Inheritance Disputes Are Up

The last three months of last year saw a phenomenal increase in court cases brought to block the administration of family estates. This process is known as applying for a caveat to stop or delay a grant of probate necessary for the distribution of a persons assets e.g. for obtaining funds from a bank, the sale of a property or investments.

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WhatsApp?… Binding Contract

The High Court recently confirmed that a binding contract could be created by informal negotiations on WhatsApp? even if followed up by my more formal written terms and conditions later.

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Inheritance Disputes Surge by nearly 50%

Mixed marriages, that where people with children have divorced and remarried, have led to a large increase in inheritance disputes. This is largely due to intestacy and assets passing to the spouse. The need for a professionally clearly drafted will has thus been highlighted to avoid probate litigation and the need for raising caveats in Court.

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Landlord & Tenant – Renters’ Rights Bill Brings Evictions

Solicitors in London have reported an increase in instructions from landlords, seeking to serve section 21 notices, and tenants, seeking to defend possession proceedings, as the Renters’ Rights Bill commences its way through parliament. The sight of the end of section 21 ‘no fault’ evictions had heralded this spark of litigation.

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Inheritance Disputes Increase

A significant rise in inheritance disputes largely due to people instructing incompetent or unqualified advisers for will writing or later amendments is happening.

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Landlord and Tenant

The First Tier Tribunal (Property Chamber) (FTT) has the jurisdiction to resolve service charge reasonableness disputes such as apportionment and that any agreements on this and other service charge questions that might have been agreed to in the lease are void for FTT challenge purposes, was held by the Supreme Court recently.

To arrive at this decision the Court had to examine section 27A(6) of the Landlord and Tenant Act 1985:-

27A Liability to pay service charges: jurisdiction

(1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to—

(a) the person by whom it is payable,

(b) the person to whom it is payable,

(c) the amount which is payable,

(d) the date at or by which it is payable, and

(e) the manner in which it is payable.

(2) Subsection (1) applies whether or not any payment has been made.

(3) An application may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to—

(a) the person by whom it would be payable,

(b) the person to whom it would be payable,

(c) the amount which would be payable,

(d) the date at or by which it would be payable, and

(e) the manner in which it would be payable.

(4) No application under subsection (1) or (3) may be made in respect of a matter which—

(a) has been agreed or admitted by the tenant,

(b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party,

(c) has been the subject of determination by a court, or

(d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement.

(5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.

(6) An agreement by the tenant of a dwelling (other than a post-dispute arbitration agreement) is void in so far as it purports to provide for a determination—

(a) in a particular manner, or

(b) on particular evidence,

of any question which may be the subject of an application under subsection (1) or (3).

(7) The jurisdiction conferred on the appropriate tribunal in respect of any matter by virtue of this section is in addition to any jurisdiction of a court in respect of the matter.

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