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The Supreme Court has reaffirmed the test for loss of chance claims resulting from professional negligence in what was its first consideration of such a case.
Yet another case on employment status has reached the Employment Appeal Tribunal and this one is likely to frighten many small businesses believing they are contracting with a self-employed contractor.
The outcome of Canary Wharf (BP4) T1 Ltd v European Medicines Agency has been highly anticipated not least of all as one of the first Brexit-related judgements. By way of background, the European Medicines Agency (EMA) is a creation of EU law and exists to authorise and supervise medicinal products for human and veterinary use within the EU. As has been well publicised, the EMA sought to argue that its lease of its (now former) headquarters in Canary Wharf at 25-30 Churchill Place would be frustrated, and could not be performed by the parties, once the UK has left the EU. The result of this case may not have surprised many in the property market but there are significant ramifications across all manner of commercial contracts. Reassuringly, the High Court confirmed that the grounds for frustration remain justifiably narrow.
The High Court recently considered an Application from a group of Creditors to remove a trustee in bankruptcy by requisitioning a creditors’ meeting.
On 31 January 2019 Mr Justice Bryan handed down judgment to the long-running case of AssetCo v Grant Thornton UK LLP  EWHC 150 (Comm), awarding AssetCo in excess of £20 million in damages. The judgment deals with a number of legal issues, including application of ‘loss of a chance’ principles to the assessment of damages, the recoverability of trading losses as part of a pattern of dishonest behaviour, as well as legal principles relating to causation, mitigation of loss, contributory negligence and the application of section 1157 of the Companies Act 2006. This important judgment provides welcome clarity on the law regarding audit negligence. Grant Thornton has indicated that it will seek permission to appeal.
This judgment considers the application of the SAAMCO cap in professional negligence claims, and provides a useful flow chart-style system for assessing whether a claim is an “advice” or “information” case, in order to determine the scope of duty.
Religious discrimination: nursery worker dismissed because her cohabitation was not consistent with the ultra - orthodox Jewish beliefs of the nursery An extra layer of complication is added when the employer’s religious beliefs motivate the dismissal of an employee who does not share them. The recent decision of Gan Menachem v de Groen highlights some of the complexities in this area as well as showing just how hard it can be for business without legal advice to comprehend the intricacies of employment legislation.
In SD (Aberdeen) v Wright the employment tribunal drew an inference that two companies were associated when a relevant director failed to give evidence to the contrary. The Employment Appeal Tribunal recently held that was acceptable.
The High Court recently considered whether a trustee in bankruptcy, who had disclaimed two freehold properties, had standing to apply to court at a later date for a vesting order in relation to those properties, or the surplus arising from their sale by a mortgagee.
Dispute Resolution: Mason and another v Godiva Mortgages Ltd. Lenders beware: are you taking proactive steps to verify the suitability of your mortgage contracts?
This case examines the extent of the duties owed by a lender to a borrower in the context of a self-certification loan and the ways in which these may be discharged. In particular, this case considers the importance of the income figure stated on an application form and how a lender may satisfy itself as to the accuracy of this figure when dealing with an intermediary.
Acas published new guidance on performance management and treating staff fairly.
Home Office Annual Report on Modern Slavery The Home Office’s annual report on modern slavery explains how the UK has responded to the threat of modern slavery over the previous 12 months and has now been published.
Whistleblowing and the personal liability of individuals and directors. This recent case of the Court of Appeal decided whether individuals and directors can be personally liable to an employee under the whistleblowing protection afforded by the Employment Rights Act for detriment including dismissal.
Dispute Resolution Update: Illegality no defence to negligence in mortgage fraud case The Court of Appeal has found that the public policy interest in ensuring that clients who employ solicitors have access to civil remedies upon breach of legal retainers was greater than allowing solicitors to rely upon the defence of illegality in cases where mortgage fraud arises. The Claimant took out a mortgage with the intention of committing mortgage fraud. The Lender sought a money judgment when the Claimant fell into arrears. The Claimant brought a Part 20 Claim seeking an indemnity against the Defendant law firm who failed to transfer a property into her name, failed to discharge an existing charge and failed to register a new legal charge. The Defendants sought, and failed, to rely on the principle of ex turpi causa non oritur action, no claims arising from a disgraceful cause.
The Court of Appeal held that a minor discrepancy between a served section 166 notice and the prescribed form was not of sufficient importance to invalidate the notice.
In the recent case of WM Morrison Supermarkets plc v Various Claimants  EWCA Civ 2339, the Court of Appeal dismissed the supermarket’s appeal and found them vicariously liable for the actions of a disgruntled employee who begrudgingly uploaded the personal and confidential information of approximately 100,000 employees on to the internet.
New Regulations relating to Tenants’ Associations are due to come into force on 1 November 2018 which landlords need to consider.
This recent decision considers a mortgagee’s duty to take reasonable care to obtain the best price reasonably obtainable when enforcing security.
Prompted by recent high profile corporate failures (like BHS) and in order to compete with insolvency regimes in Western Europe, the Government is proposing the most significant changes to the UK’s corporate insolvency framework in a long time. We take a look at some of the key changes.
The High Court has recently considered the test for fraudulent misrepresentation as a defence to a breach of contract claim.
In this recent High Court case the Court considered legal advice privilege in relation to documents provided to an auditor and whether those documents would have to be provided to the Financial Reporting Council for the purposes of an investigation.
From today (1 October 2018), new legislation has come into effect in England and Wales that affects landlords of Houses in Multiple Occupation (HMO).
The Court of Appeal has overturned a High Court ruling in which documents produced during an internal investigation were deemed to have been created prior to the anticipation of litigation and, therefore, were not found to be protected by litigation privilege. The decision has clarified the extent of the reasonable contemplation of litigation rule in providing litigation privilege protection to documents created during an internal investigation.
Borrowers and sponsors have been bringing more ‘last resort’ litigation against lenders, and the insolvency practitioners appointed by them, to challenge their actions on restructuring and enforcement of their lending. The recent case of Standish (and 8 others) v The Royal Bank of Scotland, SIG Number 2 Ltd (formerly West Register Number 2 Ltd) is another example of this and the issues that can arise.
In the recent case of Moore and another v National Westminster Bank, the Court dismissed an appeal by the bank against an award of £115,000 in favour of the respondents for breach of contract in relation to a mortgage.
In this recent case, the Court of Appeal held that non-reliance clauses contained in a lease and agreement for lease amounted to an attempt to exclude liability for misrepresentation. This meant that the clauses were subject to the reasonableness test under the Unfair Contract Terms Act 1977. The case also serves as a reminder of the key role of pre-contractual enquiries in conveyancing transactions.
In the case of Davey v Money  EWHC 766 (Ch), the Court considered whether administrators had adopted the correct approach when selling a secured property. At the same time, the judgment details a number of key principles that administrators must consider when dealing with the assets of a company.
The case of Wild Duck Limited v Smith  EWCA Civ 1471 concerned an appeal made by a Management Company against the High Court’s decision in relation to outstanding works in the common parts of a development. The High Court found that the Landlord had been entitled to step in and carry out the outstanding works in a development, the responsibility of which fell to the Management Company following the Developer’s insolvency.
In the rent case of Pimlico Plumbers Ltd and another v Smith  UKSC 29 the Supreme Court upheld the decision of the Court of Appeal to find Mr Smith had been a ‘worker’ within the meaning of section 230(3) (b) of the Employment Rights Act 1996.
In the recent case of West Bromwich Commercial Ltd v Unadkat  EWHC 469 (Comm) the Commercial Court looked at the issue of whether a collateral warranty was established which estopped the Claimant from enforcing the written terms of personal guarantees so far as they were inconsistent with the collateral warranty.
The Supreme Court recently clarified when ‘negotiating damages’ are available for breach of contract. Such damages are assessed by reference to a hypothetical negotiation between the parties as to what the Claimant could reasonably have charged for releasing the Defendant from the obligation which the defendant failed to perform.
In this recent case, the Court was asked to determine the correct interpretation of a provision that the defendant bank would not unreasonably withhold or delay its consent to the sale of a property over which it held security.
In the recent case of Lord Ltd v HSBC Bank plc  EWHC 860 (Comm) the Commercial Court looked at the issue of whether it would be just in all circumstances to allow the Defendant’s application for security for costs.
In this recent case, the Court was asked to consider whether an Order induced by fraud could be disputed on the grounds of mistake for the purposes of Land Registration Action 2002 Schedule 4 paragraph 2(a).
The High Court has recently considered whether, if a qualifying floating charge holder had not received the necessary notice of a special resolution to wind a company up in accordance with the requirements of the Insolvency Act 1986, the subsequent appointment of liquidators pursuant to that special resolution would be invalid.
The High Court has considered the validity of a notice to exercise a break option in a Lease. The notice was served by the equitable assignee of the Lease before they had been registered as the proprietor at the Land Registry.
In the recent case of Barton v Wright Hassall LLP  UKSC 12, the Supreme Court looked at the issues surrounding service of the Claim Form out of time and whether litigants in person should be offered special dispensation.
Management company acted reasonably when it refused permission to allow a pet under the Lease.
In this recent case, The High Court has struck out a liquidator’s second claim against the same defendants for failing to comply with CPR 38.7 and that the claim was a general abuse of process.
In this recently made public judgment, the Court considered an application for disclosure of the identity of the funders of litigation brought by liquidators. The Court ordered the disclosure of the identity of non-party funders to facilitate an effective application for security for costs against a non-party to be made.
In the recent case of Mundy v Trustees of the Sloane Stanley Estate  EWCA Civ 35 the Court of Appeal upheld the decision of the Upper Tribunal to find the Parthenia model of assessing relativity a failed one.
In little over a month, tens of thousands of people from the property world will descend on Cannes for MIPIM, the global property exhibition and conference event. As usual, there will be a tidal wave of prediction, analysis and crystal ball gazing. Here’s Rosling King’s analysis of the times ahead for real estate investors and lenders.
The Chancery Division of the High Court consider the liability to a seller for breach of contract and the associated damages following a failure to complete by a buyer following exchange of contracts.
In Re Olympia Securities Commercial Plc (in administration), the High Court had to interpret a number finance document terms in what was a common loan sale scenario, including; the validity of the assignment of the loan in question and the original lender’s ability to terminate the related interest rate swap agreement. The decision contains a number of interesting points for lenders, borrowers, debt purchasers and loan work-out professionals.
Following a consultation in summer 2017, aimed at tackling unfair practice in the Leasehold market, the Government have now published their response. This contains two headline proposals; firstly to ban the granting of residential long leases of new houses, and secondly for ground rent on new leases of houses and flats to be set at zero.
In the recent case of Sandra Bailey and Others v GlaxoSmithkline UK Limited  the High Court considered an application for security for costs and decided for the first time that a third party funder should be required to provide security for costs in excess of the amount of its total investment in the case.
In the case of Alfred George Sparks v Philip Nicholas Biden, the Chancery Division recently considered whether a term should be implied into an option agreement (the “Agreement”) which would stipulate a deadline by which the buyer was to sell the newly developed properties, in order to give the seller the benefit of the overage provisions contained within the option agreement.
In this recent case, the Court ruled that the absence of a document, signed by two guarantors in respect of loans to a company, meant the purported guarantee was unenforceable against either of the purported guarantors.
In this professional negligence claim, involving a refinance valuation, The Supreme Court today gave a decision on a question of principle concerning the quantum of damages. The decision will be of interest to anyone looking to address the appropriate measure of damage in a claim by a lender, against its professional valuer, where the valuation was relied upon as the basis of a loan in a refinance transaction. It will also be of interest to lenders who are considering an application to refinance.
In this recent case an unfair prejudice petition was brought by a minority shareholder. The Court ordered a financial buyout by the majority shareholder in light of its abuse of its majority powers to the detriment of the minority shareholder.
In this recent case of Watchstone Group plc v Quob Park Estate Ltd and others the court reviewed directors’ duties and the position of minority shareholders.
In a recent case, the Upper Tribunal held that an attempt by a landlord to forfeit the lease was ineffective as the landlord had not complied with sections 166 and 167 of the Commonhold and Leasehold Reform Act 2002.
The Upper Tribunal considers whether a registered proprietor who gained possession through a fraudulent transfer could be in adverse possession of the land.
This recent case considered a lender’s attempts to enforce its security where the borrower alleged representations made by the lender gave rise to a promissory estoppel. It also provides a reminder as to the law surrounding personal guarantees.
In Orchard (Developments) Holdings plc and another v National Westminster Bank plc  EWHC 2144 (QB), the Defendant applied for summary judgment. The application was made on the basis that the Claimants’ claim, in respect of the alleged mis-selling of interest rate hedging products, was statue barred.
In Osborne v Follett Stock (a firm) and another  EWHC 1811 (QB) the High Court considered, as a preliminary issue, the question of limitation in a claim against solicitors for alleged professional negligence.
The High Court affirms the application of the decision of BPE Solicitors v Hughes-Holland  UKSC 21.
In the recent case of Andric -v- Credit Suisse (UK) Ltd and another the Commercial Court considered an application by a Credit Suisse (UK) Ltd for the claim to be struck out or that they be granted summary judgment. The case again illustrates the high threshold which must be met for a claim to be struck out, or summary judgment granted.
In the case of NRAM Ltd v Evans and another, the Court of Appeal recently considered an appeal against the lower Court’s decision to allow for the rectification of title after the lender mistakenly requested the removal of their charge from the title register.
This recent case considered a challenge against a lender’s attempts to enforce its security. The case also serves as a reminder as to the approach taken by the Courts when parties attempt to re-open litigation many years after it was initially resolved.
In February 2016, we wrote about the High Court’s decision to grant summary judgment in African Export-Import Bank and others v Shebah Exploration & Production Company Ltd and others (https://tinyurl.com/y9477ch7). The decision was subsequently appealed to the Court of Appeal who had to revisit what meaning should be attributed to standard terms of business, in this case the precedent language issued by the Loan Market Association.
The Court of Appeal has reaffirmed that the duty of a solicitor is to communicate information known to the solicitor which may be material to the transaction.
In the case of The RBS Rights Issue Litigation, the Chancery Division recently considered an application for security of costs against two litigation funders who were not parties to the original claim.
In Bank of Scotland Plc v Hazel and another  All ER (D) 212 (Oct), the Queen’s Bench Division of the High Court held that an act of default by the borrowers, in relation to two loan agreements, entitled the bank to rely on its security and obtain various remedies against the borrowers.
In the recent case of Findcharm Ltd v Churchill Group Ltd, the Honourable Mr Justice Coulson dealt with an important issue relating to cost budgeting where one party had submitted an unrealistically low cost budget in order to try and gain a tactical advantage.
As property developers know all too well, the acquisition of a new site is just the first step on a long road before the disposal of the developed asset and there is usually an extensive list of issues to be addressed both pre-commencement on site and during the construction phase. Now, following a recent judgment in the High Court, property developers should make sure that complying with copyright law is prioritised on their “to do” list.
In the cases of Times Newspapers Ltd v Flood; Miller v Associated Newspapers Ltd; Frost and others v MGN Ltd the Supreme Court considered three appeals involving a challenge to an order for costs. The Supreme Court considered whether, in granting an order for costs, the paying party’s rights to freedom of expression under Article 10 of the European Convention on Human Rights had been infringed.
The High Court has upheld a decision of the County Court, in a hearing which examined whether a trustee in bankruptcy had validly disclaimed a lease. After considering the provisions of the Insolvency Act 1986 (the “Act”), the High Court agreed that a trustee in bankruptcy could not disclaim the legal interest in a lease held jointly with another person.
In the recent case of Wood v Capita Insurance Services Ltd, the Supreme Court considered the proper construction and wording of an indemnity given by the sellers in a Share Purchase Agreement.
In a landmark Supreme Court case, accountants were able to escape liability because of the way in which the lender had structured its transaction. This case serves as a warning to lenders to carefully consider the way in which any refinances are structured, lest claims against negligent professionals are unwittingly extinguished.
In November 2016, we wrote how the Insolvency (England and Wales) Rules 2016 (the “2016 Rules”) were laid before Parliament on 25 October 2016 (http://tinyurl.com/kcy2723). The 2016 Rules came into effect on 6 April 2017 and replace the Insolvency Rules 1986 (the “1986 Rules”), and apply to all future insolvency appointments, as well as applying retrospectively to existing appointments in England and Wales, subject to certain transitional provisions.
On 1 October 2017 the Pre-Action Protocol for Debt Claims (the “Protocol”) will come into force and introduce a new procedure for debt claims. The Protocol will apply to any business, including sole traders and public bodies, looking to bring a claim against a debtor who is either an individual or a sole trader.
The High Court recently decided that when a borrower changes the interest rate on a loan from a variable rate, to a fixed rate, that the bank can owe the borrower a duty of care to explain the financial implications of fixing the rate.
The introduction of Private Fund Limited Partnerships from 6 April 2017, pursuant to the Legislative Reform (Private Fund Limited Partnerships) Order 2017, will hopefully promote an increase in investor activity in the UK as some of the current burdens for UK Limited Partnership structures are alleviated.
In the recent case of Ventra Investments Ltd (in creditors voluntary liquidation) -v- Bank of Scotland plc, the Commercial Court considered an application by the Defendant, Bank of Scotland plc, to strike out a number of paragraphs in the Particulars of Claim. In the application, Bank of Scotland plc claimed that the paragraphs were immaterial to the allegation of negligent misstatement or breach of duty pleaded by the Claimant, Ventra Investments Ltd.
The Supreme Court has upheld the decision of the Court of Appeal in Gabriel v Little  EWCA Civ 1513 (22 November 2013). In reaching its decision the Supreme Court considered the application of the principle established in South Australia Asset Management Corp v York Montague Ltd  AC 191 in relation to solicitor negligence claims where the solicitor is supplying information or advice which forms one of a number of factors relevant to the client’s decision to proceed with a transaction.
Insurance Update: Supreme Court allows Insurer’s appeal against the intrinsic relationship test applied by the Court of Appeal to aggregation clauses.
The Supreme Court has allowed the appellant Insurer’s appeal against the Court of Appeal’s decision in AIG Europe Limited v OC320301 LLP and others  EWCA Civ 367, which replaced the interdependence test with an intrinsic relationship test in relation to aggregation clauses.
In the recent case of Astor Management AG v Atalaya Mining plc  EWHC 425 (Comm), the High Court provided useful clarification on when an obligation to use “all reasonable endeavours” would be enforceable and whether a duty of good faith could be implied into a contract where there was already an express obligation to use all reasonable endeavours.
The recent High Court case of Thomas & another -v- Frogmore Real Estate Partners & others has provided some useful guidance when seeking to establish a company’s Centre of Main Interests and determine the jurisdiction of insolvency proceedings in the UK.
In a landmark High Court case a firm of solicitors, who acted for a purchaser of a property, were ordered to pay damages to their client as a result of having paid money to complete a property transaction where the seller was a fraudster. Whilst the Court held that the firm had acted reasonably, it was not granted relief from liability.
In the recent case of Irish Bank Resolution Corporation Limited -v- Camden Market Holdings Corporation, the Court of Appeal tests the scope of implying a borrower-favourable term, which restricts a lender’s marketing of its loan, into standard terms granting the lender the right to transfer the loan.
Court rules that government cannot trigger Article 50 without parliamentary approval.
In the case of Gaind v Dunbar Assets Plc, the High Court recently considered an appeal against a Judgment dismissing an application to set aside a statutory demand in the sum of approximately £1.1 million, on the ground of misrepresentation.
In late December 2016, the High Court handed down judgment in Property Alliance Group Ltd v Royal Bank of Scotland plc. This is the first major case relating to the manipulation of the London Interbank Offered Rate (LIBOR) to reach trial in England and Wales. The Claimant alleged that it had been missold four interest rate derivative products, that RBS acted in bad faith and abused various (alleged) discretions and that RBS was in breach of various implied representations or terms relating to the setting of LIBOR. The Court dismissed the claim.
On 10 January 2017, the Information Commissioner’s Office (the “ICO”) issued a Monetary Penalty Notice against Royal & Sun Alliance Insurance PLC (“RSA”) for a serious contravention of the seventh data protection principle. The ICO ordered that RSA pay £150,000 as a result of the breach.
The Technology and Construction Court considered the scope of duty and recoverable loss in a professional negligence claim against property consultancy firm, McBains Cooper, who were instructed by Lloyds Bank plc to act as a project monitor to oversee the development of a church building in 2007. The Court held that McBains Cooper failed in its duty to Lloyds Bank plc to properly advise them prior to the advance of a loan in excess of £2million.
The Financial Conduct Authority recently issued a guidance consultation (GC16/6) on the fair treatment of mortgage customers in ‘payment shortfall’, or arrears. Firms are welcome to submit their comments on GC16/6 until 18 January 2017.
In BTI 2014 LLC v Sequana SA & others, the High Court considered whether the decision by a company to make a dividend payment was a breach by the directors of their fiduciary duties to the company and whether such payments could amount to a transaction defrauding creditors under the Insolvency Act 1986.
On 25 October 2016 the Insolvency (England and Wales) Rules 2016 were laid before Parliament. They are due to come into force with effect from 6 April 2017. The new rules replace the Insolvency Rules 1986 in their entirety, with the aim of modernising and simplifying the language used in the previous legislation.
In the case of P & P Property Ltd v Owen White & Catlin LLP and another, the High Court considered the circumstances in which P & P Property Ltd purchased property from a fraudster impersonating the true owner of the property. P & P Property Ltd subsequently brought a claim against the seller’s solicitors, Owen White & Catlin LLP for breach of warranty of authority, negligence, breach of trust, and breach of undertaking, and a claim for breach of warranty of authority and negligence against the estate agents who marketed the property, Crownvent Limited trading as Winkworth.
Employment Case Update: Lock v British Gas. Where is the holiday bus going?
The recent decision of the European Court of Justice in Lock v British Gas on holiday pay confirms the continuing pattern of interpretation in favour of the employee’s holiday protection.
The Commercial Court has held that a lack of a countersignature on a Letter of Commitment will not automatically render it invalid and lenders may still be bound by its terms.
High Court departs from usual test when considering negligence in respect of financial advice.
At a Case Management Conference the Chancery Division of the High Court held that a claim valued at £13million will be subject to the costs management regime and refused an order for a split trial.
On 12 August 2016 the Insurance Act 2015 came into effect and marked the biggest change to insurance law in over 100 years. This update looks at some of the key changes which everyone involved in placing insurance should be aware of.
In Mortgage Express v Countrywide Surveyors Ltd the Court considered the basis on which to award interest as damages where, had the lender not been deceived by the surveyor, the lender would not have lent the money at all. In addition, the Court considered the method of calculating statutory interest in accordance with section 35A of the Senior Courts Act 1981, specifically whether interest should be calculated at LIBOR plus 1%, as is the commercial norm, or LIBOR plus some other rate.
In Versloot Dredging BV and anr v HDI Gerling Industrie Versicherung AG and ors  UKSC 45 the Supreme Court held that the “fraudulent claims rule” does not apply to collateral lies which are immaterial to the insured’s right to recover.
In Marsden V Barclays Bank plc  EWHC 1601 (QB) the High Court granted summary judgment in favour of the Defendant bank, against the Claimant, who had commenced proceedings alleging the mis-selling of interest rate swaps.
In Finch and another v Lloyds TSB Bank Plc and others the High Court confirmed that lenders do not owe borrowers a duty to pro-actively advise customers on specific terms of a loan agreement.
The Court of Appeal has reminded lenders of the importance of ensuring that its suite of mortgage documents complement each other so as to avoid inconsistencies.
In AS Latvijas Krajbanka (in Liquidation) v Antonov  EWHC 1262 (Comm), the High Court held that the defendant was liable to the claimant bank for the bank’s losses, under Latvian law, for acting dishonestly and in breach of the duties owed to the bank.
In a recent landmark judgment, the High Court held that the seller’s solicitors were liable to the defrauded buyer, even though there was no contractual relationship between the parties.
The Chancery Division of the High Court recently held that a commercial tenant was entitled to damages after deciding that the Tenant’s right to peaceable enjoyment of their Property had been breached by the Landlord, who had acted unreasonably in exercising their right to carry out redevelopment works.
This Court of Appeal decision is potentially useful for tenants as it confirms that it is inappropriate for landlords to claim a loss for a rental void period which they may expect to endure as a result of a tenant’s breach of covenant where they have already obtained a compensation payment in respect of the breach complained of.
The Third Parties (Rights against Insurers) Act 2010 (the “2010 Act”) comes into force on 1 August 2016. The 2010 Act introduces a less complex and potentially cheaper procedure for third parties to claim directly against the insurer of an insolvent individual or corporate insured.
The latest CMBS case to be examined by the Courts has looked behind the imperfectly-worded legal documents and honoured the original intentions of the transaction parties, in a further blow to holders of ‘Class X’ notes.
The High Court recently considered the importance of solicitors’ duties when dealing with money as trustees and the need to take appropriate steps to verify parties’ identities and ensure transactions are lawful.
In Goldtrail Travel Ltd (in liquidation) v Aydin and others, the Court of Appeal dismissed an appeal relating to the appellants’ dishonest assistance to a director of the respondent company, in breach of his duty under section 175 of the Companies Act 2006, and the misapplication of the respondent company’s money.
In The Hut Group Ltd v Nobahar-Cookson and another, the Court of Appeal considered the correct interpretation of an exclusion clause which placed a contractual time limit on the buyer of a Share Purchase Agreement bringing a breach of warranty claim against the seller.
The Court of Appeal has clarified the meaning of the aggregation provision in solicitors’ PI policies.
The recent case of Barker v Baxendale Walker (a former firm) and another provides a salient reminder of the importance of establishing causation in professional negligence claims, as well as the importance of solicitors providing “general health warnings” to clients regarding the general possibility of challenge or the risks associated with the cause of action being proposed.
Mutual Energy v Starr [ 2016] applied a purposive interpretation to the meaning of “deliberate or fraudulent non-disclosure” by an insured such that it had to contain an element of dishonesty.
The recent case of BCS Corporate Acceptances Ltd and others (Applicant) v Terry and another (Respondents) is a reminder of the principles behind obtaining a freezing injunction and the fact they should not be used as an attempt to gain security over property.
On 1st April 2016 the National Minimum Wage (Amendment) Regulations 2016 will come into force, introducing the national living wage. This highly anticipated change in law, announced by the Government last year, aims to help Britain’s lowest paid workers improve their standard of living, bringing direct benefits to 2.7 million workers over the age of 25.
The Commercial Court recently considered whether, in circumstances when commercial parties (both represented by solicitors) entered into an agreement where the starting point is a standard form, this would constitute “written standard terms” in accordance with section 3 UCTA 1977, irrespective of whether the agreement was then negotiated by solicitors.
The Small Business, Enterprise and Employment Act 2015 will be implementing a new transparency measure from 6 April 2016, in which all non-exempt companies will be required to hold and file at Companies House, information of people with significant control or influence over the company – the PSC Register.
In Clydesdale Bank plc V Workman and Others, the Court of Appeal recently overturned a decision of the High Court, which held that two solicitors were guilty of dishonest assistance relating to a mortgage fraud.
“In Aldermore Bank plc v Rana -  All ER (D) 260 (Nov), the Court of Appeal considered when a remortgage transaction is deemed to have completed, giving rise to the borrower’s liability for repayment of the mortgage loan”.
In Dickinson and another v UK Acorn Finance Ltd  EWCA Civ 1194 the Court of Appeal order that it is an abuse of process to seek to litigate questions arising out of the Financial Services and Markets Act 2000 more than two years after the making of an Order for possession.
The Mercantile Court recently considered an action brought by a borrower who claimed that Barclays Bank had an advisory duty to them when it sold a swap agreement as a means of hedging the risk on an investment loan. The Court’s dismissal of this claim follows a line of recent case law in which the Courts have declined to side with borrowers seeking redress from banks following commercial agreements entered into prior to the 2008 financial crisis.
The High Court has found that the title to a freehold property disclaimed by the Crown can be re-vested in a company restored to the register.
The recent case of Swift Advances Plc v Ahmed and another demonstrates that the Court is willing to set aside prior transactions where it can be shown that the intended purpose was to defraud the creditor.
The Supreme Court has recently handed down judgment in the conjoined appeals of Beavis v ParkingEye Ltd and Cavendish Square Holdings v El Makdessi, which examines the test for what constitutes a penalty at common law, as well as considering the proper approach to a claim under the Unfair Terms in Consumer Contracts Regulations 1999.
The Court of Appeal has confirmed that, when a claimant in a professional negligence claim has concurrent causes of action in both tort and contract, the Court will apply the more restrictive contractual test for remoteness rather than the tortious test.
In Minkin v Landsberg, the Court of Appeal considered the relevant authorities, general principles and effect of limiting a solicitor’s retainer. The implication following this decision is that, in certain circumstances, lenders may be considered experienced clients and should therefore take care when drafting their letters of instruction to solicitors.
The Consumer Rights Act 2015 (“the Act”) was introduced as part of the government’s reform of consumer law and has been described as the biggest overhaul of consumer rights in a generation. The Act provides a degree of clarity in what was previously a sprawling, and complex, area of law.
The Court of Appeal has recently confirmed that LPA Receivers do not owe a duty of care to bankrupt mortgagors.
The High Court recently considered the extent of the duties owed by a director upon the onset of insolvency and the burden of proof in a liquidators’ application for summary judgment against the directors.
In a welcome decision for lenders, the Court of Appeal has confirmed that the CML Handbook does not preclude the operation of the Bowerman principle (i.e. that a solicitor must report information which may have a material bearing on the lending decision to the lender.
The FCA proposes to introduce a deadline for consumers to make PPI complaints and will also produce rules and guidance in light of the decision of the Supreme Court in Plevin –v- Paragon. This appears to be the beginning of the end for PPI claims but a few important loose ends remain untied.
The Court of Appeal recently set aside a decision at first instance to summarily dismiss a claim on the basis of limitation. The judgment provides helpful commentary on the practical issues to take into account when seeking to rely upon s 14A Limitation Act ('the Act') and the importance of looking carefully at the knowledge of the Claimant who seeks to rely upon the Act. The decision will be helpful to those who become aware of their claim, and the losses suffered, after primary contractual or tortious time limits have passed.
The High Court has held that proceeds from the sale of properties underlying the £850m Gemini (Eclipse 2006-3) CMBS issuance should be treated as principal rather than interest, meaning the class A noteholders have an entitlement to these receipts ahead of their junior counterparts.
The High Court recently considered the extent of the duty placed on banks/advisors when advising customers on making investments.
As of 1 October 2015, a number of changes have been introduced to insolvency law in the UK with more to follow on 10 October 2015 and then in April 2016. The key developments implemented in October 2015 will affect both companies and individuals.
This recent Court of Appeal decision examines the balancing exercise adopted by the Courts in deciding whether to grant relief from forfeiture.
The Commercial Court has recently made an important ruling with potentially far reaching consequences in relation to solicitor insurance coverage disputes.
A recent High Court ruling clarifies the relationship between the FCA’s and the Court’s powers in dealing with cases of market abuse, and sees the Court exercise its powers under s129 FSMA for the first time.
Restructuring and Insolvency Update: Philip Anthony Brooks and Julie Elizabeth Willetts (Joint Liquidators of Robin Hood Centre Plc) v Keiron Armstrong and Ian Walker  EWHC 2289 (Ch).
A landmark High Court ruling paves the way for further mis-selling claims by small and medium firms sold complex financial products by their banks.
This recent High Court case serves as a reminder to litigants pursuing professional negligence actions of the need to ensure that they are able to prove all constituent elements of a claim before pursuing litigation.
The Court of Appeal has recently reversed a decision that could have seen financial compensation paid to hundreds of borrowers by NRAM, on the basis of voluntary adoption of the Consumer Credit Act 1974. It comes as a blow to borrowers but represents a sensible commercial decision that will be welcomed by lenders.
In this case the Upper Tribunal (Lands Chamber) considered whether, in a claim for a new lease under the Leasehold Reform, Housing and Urban Development Act 1993 (the “Act”), the service charge provisions of the existing lease should be amended because the total percentage of the service contributions from all the tenants exceeded 100% of expenditure.
The Supreme Court on Wednesday handed down its long awaited decision as to whether a conditional fee agreement (CFA) uplift and ATE premium on a pre- April 2013 CFA are recoverable from the losing party.
The High Court has recently confirmed that a solicitor is under a duty to report material information to their client, regardless of whether the investigations leading to the discovery of that information were requested by the client or not.
In Dexia Crediop S.p.A. v Comune di Prato  EWHC 1746 (Comm) the High Court found an Italian interest rate swap governed by English law null and void for non-compliance with mandatory rules of Italian law.
In a useful judgment for lenders, the Court has recently confirmed that an e-DS1 may, in some circumstances, be set aside for mistake and the register rectified.
The Court has recently confirmed that the review of an unfair relationship under the Consumer Credit Act 1974 is a suitable issue for summary judgment.
This recent Court of Appeal decision serves as a reminder that all limbs under the Consumer Credit Act must be strictly satisfied if a lender wishes to take advantage of exemptions to regulated agreements.
In this recent swap mis-selling case, the Court confirmed the principles that will be considered in late applications to amend statements of case.
This recent decision of the Privy Council is good news for banks seeking to rely on letters of indemnity. Depending on the precise nature of the contractual arrangements between the parties and their banks, it confirms that a bank’s knowledge of their respective customer’s state of account should not preclude it from relying on a separately arranged letter of indemnity.
The High Court has confirmed that the date of the presentation of a winding-up petition against a restored company could be back-dated so that a challenge relating to an antecedent transaction, which had been out of time, could be pursued.
On 6 April 2015, the current CDM regime shall be replaced by The Construction (Design and Management) Regulations 2015. This Update provides a useful summary of the key changes which shall be introduced to the management of health, safety and welfare for almost all construction projects in Great Britain.
The Court of Appeal recently considered whether professional indemnity insurers are obliged to indemnify solicitors liable to reimburse loans made to their clients.
This auditor negligence case highlights the importance and effect of clauses disclaiming liability to third parties.
The High Court recently considered whether a firm of solicitors had an implied duty to advise their client to issue proceedings against various third parties.
In breaking news, the Government has today announced that the 1 April 2015 watershed on Insolvency practitioners’ rights to be exempted from the Jackson Reforms is delayed. The result means that Insolvency practitioners can continue to pursue litigation claims on the basis of CFA funding arrangements for the foreseeable future.
This recent case is a good example of when the Court will not regard the acts of a bank as ratifying a breach by one of its employees.
This latest solicitor negligence claim is a reminder that a solicitor’s duty of care is limited to its retainer and that professional advice should be sought prior to commencing a claim.
The most important insurance policy legislation in over 100yrs is finally happening. It radically changes the basis on which insurers can refuse to pay claims and avoid policies in their entirety. There is an 18month transitional period, but already everyone involved in placing insurance is considering its effect.
The High Court has recently dismissed a borrower’s claim that the loan facility agreement was varied through correspondence with the lender. This is welcome news for lenders and confirms that the Courts are reluctant to infer from correspondence that rights and remedies pursuant to a loan facility agreement could be varied.
The Mercantile Court recently rejected Great Lakes Reinsurance’s defence that Western Trading had no insurable interest in a property which it did not own and which had been destroyed by fire.
A recent High Court decision in which Companies House was held to owe a duty to register correct information on the Company Register, will be of interest to all those involved in registering documentation at Companies House.
This latest costs case has been welcomed by successful litigants, as the Court awarded the receiving party 90% of their approved costs budget by way of an interim payment on account of costs.
Following recent changes which extended the list of unsecured debts afforded preferential status in insolvency proceedings, this Update provides a useful reminder of how assets are distributed in a corporate insolvency.
Being the first anniversary of the widespread shocking floods last year, we have produced a new piece of film which has gone live on our website today. It looks at some key construction and insurance issues which arise for those with land, businesses or property affected by floods.
The Court has recently provided further guidance on limitation under s14A of the Limitation Act.
The Court of Appeal has confirmed that the Mitchell and Denton principles will apply to an application for extension of time for filing a notice of appeal under CPR 3.1(2) (a). The fact there is no specific sanction for breach in this case is irrelevant.
In this latest costs case, the Court confirmed that it is not necessary to use the words "and incidental to" in the Court Order to recover costs incurred pre-action.
The recent case of NRAM Plc v (1) Jeffrey Patrick McAdam (2) Ann Hartley serves as a warning to regulated firms who offer customers greater protections than they are legally entitled to. Failure to provide these protections could result in serious consequences for those lenders.
In an important decision for asset management companies and professional trustees, the Court of Appeal has provided useful guidance on the interpretation of indemnities and excess clauses in the context of professional indemnity insurance, including the extent to which rights of subrogation may exist against a co-insured.
The recent case of Dowling v Bennett Griffin is a Court of Appeal decision in relation to a claim brought against a firm of solicitors acting for the claimants in a matter where the defendants had failed to notify their professional indemnity insurers of the claim during the course of proceedings and where the insurer consequently was able to avoid the policy.
This recent case is a reminder to insureds to carefully review policy wording for potentially onerous claims handling provisions and to comply fully with any conditions precedent to ensure that cover is not compromised.
The case of Bacciottini and Cook v Gotelee Goldsmith considered the damages that were recoverable in respect of a solicitor negligence claim, in circumstances where the loss suffered by the Claimant had been eroded by the Claimant's conduct.
The case of Grace & Anor v Black Horse Limited considers whether it was appropriate for a debtor to have a default registration registered against his name under the Consumer Credit Act 1974 in circumstances where the credit agreement is found to be irredeemably unenforceable. It also briefly considers the application of s.32 of the Limitation Act 1980.
Some four months have now passed since the landmark decision of Denton v White and other appeals  EWCA Civ 906. However, recent decisions show that the Courts and litigants continue to grapple with its effect.
Breaking News: Legal Services Board declines to cut minimum PII cover.
The case of Sugar Hut Group & Ors v A J Insurance gives a useful insight into the approach to be adopted by the Courts when calculating loss of turnover for the purposes of business interruption insurance. The decision also illustrates the importance for insurance brokers to advise fully on disclosure obligations and the implications of warranties and basis of contract clauses, to minimise potential liabilities in the event of a disputed claim.
The case of JSC Mezhdunarodniy Promyshlenniy Bank and another v Pugachev will be useful to Claimants seeking cross-jurisdictional disclosure, as it emphasises the Court’s wide powers in this respect.
The long awaited Supreme Court decision in Plevin v Paragon Personal Finance Limited deals with the issue of unfair relationships in payment protection insurance mis-selling claims, concluding that the non-disclosure of commission could make the borrower-lender relationship unfair.
The recent Supreme Court ruling in AIB Group (UK) v Mark Redler & Co Solicitors provides clarification as to the correct causation test and measure of damages for breach of trust claims and will be of particular interest to lenders who may have claims for breach of trust against solicitors who acted on conveyancing transactions that have gone awry.
This recent decision of the Court of Appeal considered the application of s.14A of the Limitation Act 1980 in relation to an action against financial advisors for negligent advice in relation to investments. The decision is a reminder to litigants that the knowledge required for s.14A is not full detailed knowledge, but rather knowledge sufficient to warrant further investigation.
In this case, a valuer was held not to be negligent in circumstances where a valuation report was relied upon for a purpose that was outside the scope of the instruction. A valuation report was obtained for the purpose of a loan application. It was found not reasonable for the valuer to be liable when the landowner subsequently relied upon this valuation report when considering offers on selling the land at a later date. This case confirms that the Court will look to the purpose behind the valuation report and that reliance upon the report will generally be limited to the purpose of the valuation report.
The recent decision of Versloot Dredging BV v HDI Gerling and others, The DC Merwestone has significant market implications in the context of both marine and non-marine insurance, clearly confirming that an insured who uses a fraudulent device will forfeit an otherwise valid claim.
The recent decision in R (on Application of Bluefin Insurance Services Limited) -v- Financial Ombudsman Service provides some much needed guidance in establishing who, under the definition of ‘consumer’, can make a complaint to the Financial Ombudsman Service. It makes it clear that those who seek to pursue financial institutions via the Financial Ombudsman Service in any kind of “business capacity” are likely to be unsuccessful. The case serves as a strong reminder that the Financial Ombudsman Service is there to protect consumers and cannot be misused.
The recent decision in Caliendo and Another v Mischon de Reya (A Firm) and Another may be of interest to you. The case is a prime example of how the Courts are applying the guidance in Denton when considering whether to grant relief from sanctions.
It is clear from this case that should a lender find itself in the position of involuntary bailee of a borrower’s goods, their duty to do what is right and reasonable in all the circumstances may extend to disposal of the goods.
This case provides helpful guidance on the definition of ‘unfair relationship’ as included in the Consumer Credit Act, a term which had previously had little judicial direction in respect of its meaning and application. Further, it provides useful guidance to lenders in enforcing their rights under mortgage agreements.
The recent decision of the Employment Appeal Tribunal (EAT) Wood v Hertel (UK) Ltd & Fulton v Bear Scotland Ltd has thrown holiday pay back into the spotlight. Here employees argued that they consistently worked overtime but this was not considered when their holiday pay was calculated, meaning it was an unfair calculation of what they actually earned. The EAT ruled in their favour, judging that overtime should have been considered, but what does this mean for UK employers? Head of Employment at law firm Rosling King, Jacqueline Kendal explains.
This case concerned a claim for EUR 83,196,829 brought by Credit Suisse against Vestia for an early termination amount under an International Swaps and Derivatives Association (ISDA) Agreement. It highlights the importance in ensuring that the relevant parties to potential transactions have the capacity to enter into the type of transaction involved and shows the crucial importance of carefully negotiated provisions like the additional representations in this case, without which Credit Suisse’s claim is unlikely to have succeeded.
The High Court has considered whether a former liquidator should be held liable for misapplying company monies during the course of a liquidation where the liquidator failed to exercise their powers with reasonable skill and care.
A High Court Judge has found that the rulings in Denton and Mitchell have a “profound importance” when considering applications to set aside Default Judgments.
The High Court has recently considered whether to hear winding-up petitions brought against two companies incorporated abroad.
This appeal from a ruling on costs provides a useful example that Mitchell is not being applied as stringently by the Courts.
In this recent decision, the Court considered whether a settlement agreement between the owners of a ship and its insurers covered the insurer’s employees and agents in respect of proposed litigation against them. The decision is a reminder that those upon whom the benefit of a settlement agreement is conferred should consider carefully their claims against other parties when settling a matter with one joint tortfeasor so as not to hinder their ability to instigate proceedings against other parties.
The EAT in Fuller v United Healthcare Services Inc & Another IKEAT/0464/13/BA has upheld a jurisdictional decision of the ET which excluded a US employee from pursuing an unfair dismissal and discrimination claim under the Employment Rights Act 1996 and Equality Act 2010.
This recent decision of the Chancery Division is a welcome reminder that banks do not generally have advisory relationships with their customers, nor do they normally owe a duty of care to advise on the merits of the investments their customers may be proposing to make. In particular, it confirms that careful drafting of contract and offer documentation may successfully disclaim a bank from owing a duty of care to a customer in respect of advice given.
In this case, the Chancery Division found that the Defendant firm had failed to exercise reasonable care in advising the Claimant on planning issues during the course of a conveyancing transaction. However, the Claimant was found to bear responsibility for two-thirds of their total recoverable loss.
In this recent decision, the Commercial Court clarified the extent of insurance broker’s duties when assessing a client’s insurance cover for business interruption.
Judgment has today been handed down in the case of Titan Europe 2006-3 Plc v Colliers International (UK) Plc. In a landmark decision, in which Rosling King represented the Claimant, the Commercial Court has ordered Colliers to pay damages of €32m to Titan.
The EAT in Hall v Xerox UK Ltd UKEAT/0061/14/JOJ recently found that an employer had not discriminated against a fixed term employee where the benefit of a PHI Policy was unavailable to him.
This recent decision of the Privy Council concerns the distinction between a fraudulent insurance policy claim and a fraudulent device used to support a valid claim.
The High Court has recently provided guidance on when a professional advisor will owe a duty of care to a third party.
This recent decision of the High Court considered a solicitor's liability for breach of retainer and/or negligence in the context of a commercial property transaction and is a useful reminder of the importance of clarifying the scope of the retainer at the outset of the transaction.
The Privy Council (St. Lucia) has recently confirmed that, in some circumstances, lenders may not be limited to enforcing their security and may in fact commence personal actions against defaulting borrowers.
High Court considers shareholders’ confidentiality obligations and directors’ duty to avoid conflicts of interest.
Following the recent equal pay decision of the Employment Appeal Tribunal in Bradley v Royal Holloway and Bedford New College, University of London, we think it is worth reminding everybody that from 1 October 2014 tribunals must order an equal pay audit if the employer is found to have breached the equal pay legislation.
The Court of Appeal has recently warned that a failure to comply with a mandatory requirement of a break clause in a lease will render it invalid.
The Court has confirmed that it is not an abuse of process for a lender to pursue possession proceedings to put pressure on a borrower to pay outstanding sums, however there may be cost consequences if there is no chance of a recovery.
The Court has recently held that commercial creditor's interests will usually be given priority over a family in occupation of the property.
The Court of Appeal has recently overturned a controversial decision regarding architects’ duty of care in providing certificates.
Applying the Court of Appeal’s recent clarification on Mitchell, the Court has granted relief from sanctions where the Claimant failed to serve a new Notice of Funding under a CFA arrangement.
The Court highlights the circumstances in which banks will owe a duty of care to third parties.
The Court provides practical guidance when dealing with a claim for disrepair in possession proceedings.
The High Court recently considered the circumstances in which an invalidly executed charge may still take effect as an equitable mortgage.
The Court of Appeal recently overturned summary judgment which was made against a defendant who failed to comply with a personal guarantee.
The Court of Appeal recently considered issues of causation in a solicitor negligence claim.
A Lender’s charge is given priority over the interest claimed by an individual in actual occupation of the property by applying the principles of agency.
On 30 June 2014 the Government opened up requests for flexible working to all employees with 26 weeks’ continuous employment. Whereas previously the entitlement was confined to those with dependents any employee can now make the request for any reason. We take a look at what’s happened in the last three months.
The Court of Appeal provides much needed guidance on Mitchell, which has apparently been misapplied and misunderstood by Courts.
The Commercial Court recently held that a conclusive evidence clause in a deed amounted to an indemnity imposing a primary obligation, rather than a guarantee imposing a secondary obligation.
The Court of Appeal recently refused to make a costs capping order, as the "substantial risk" that costs would be disproportionately incurred could be adequately controlled by the detailed assessment process.
The latest raft of Mitchell decisions provide some guidance on when relief from sanctions will, or will not, be granted.
The Court has once again confirmed that refusing mediation is a high risk strategy that could lead to severe costs consequences.
Restructuring & Insolvency Update: Cash Flow Test v Balance Sheet Test: When is a company deemed to be insolvent?
The Court of Appeal recently considered the question as to when a company is deemed unable to pay its debts, with the result that it is insolvent.
The High Court recently dismissed a counterclaim for misrepresentation and economic duress in relation to the enforcement of a personal guarantee.
The High Court re-iterates the requirements for a grant of a right of way over land.
A string of recent cases provide insight into the circumstances when the Mitchell guidelines will be applied.
The Court of Appeal recently considered the duties of litigants post-settlement under a settlement agreement.
The High Court recently considered a bank’ s duty of confidentiality to its customers and when that duty is breached.
The High Court examines the meaning of 'further advance' in the context of the Land Registration Act 2002.
The Court of Appeal shows signs of softening from its hard-line approach adopted in Mitchell.
Important reminder from the Court of the requirements for adverse possession and rectification of title registers.
This recent High Court decision serves as a warning to parties who enter into Joint Venture Agreements without obtaining proper legal advice first.
The High Court has confirmed that the CML Handbook does not restrict conveyancing solicitors’ Bowerman duties.
The High Court reinforces the scope of the obligations of a mortgagee in possession to take reasonable care to sell a property at the best price reasonably obtainable.
This recent High Court case gives lenders added protection against borrowers trying to claim incapacity in order to avoid their debts.
The High Court has no intention of departing from the hard line approach adopted in Mitchell, as these latest decisions show.
This recent Commercial Court decision is welcomed by lenders, as it confirms that primacy will be given to the contractual terms of a facility agreement.
Rosling King’s Insolvency and Restructuring Group consider the recent High Court case of Re Lehman Brothers International (Europe) (in administration) and others  EWHC 704 (Ch) which impacts the ranking of creditor debts in administrations and liquidations.
The Technology and Construction Court recently confirmed that adjudication is commenced when the Notice of Adjudication is given.
This Court of Appeal case highlights the importance of checking the scope of the retainer when considering an accountants negligence claim.
The Courts are prepared to look beyond the mortgage terms and conditions when considering whether a mortgagee has acted in a reasonable manner when disposing of items that have been left in repossessed properties.
The Commercial Court has warned litigants who oppose applications for relief from sanctions that they cannot expect a free costs ride.
The Court of Appeal has recently clarified the correct approach to causation in a claim involving mis-selling of payment protection insurance in breach of regulatory requirements.
The High Court recently considered whether the Mitchell criteria applies to applications to set aside default judgment.
In a recent Mitchell decision, the High Court confirmed that the relevant breach will not be considered in isolation from other failures to comply in the same proceedings.
Restructuring and Insolvency Update: IPs’ fees to be squeezed?
New Court of Appeal case reminds Landlords that they must have strong grounds to refuse consent to assignment of a lease.
The Court of Appeal has confirmed that a lender will be commercially reasonable if it has primary regard to its own commercial interests when exercising its discretion under a guarantee.
The Court of Appeal recently considered whether a litigant can rely on an external report that contains opinion evidence.
New Case highlights the importance of dealing with mental capacity issues in proceedings properly and promptly.
A recent TCC decision has clarified limitation periods for claims brought against negligent sub-contractors and circumstances in which a failed assignment may result in a trust for the benefit of the putative assignee.
A claimant firm of headhunters has brought a successful professional negligence claim against its solicitors for misdrafting a limited liability partnership agreement.
Lender Update: Andrew Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 (“Mitchell”).
A raft of recent decisions illustrate the extent to which the High Court and Court of Appeal are prepared to depart from the hard-line approach adopted in Mitchell.
Recent appellate authority has reaffirmed the principle that liability insurance only indemnifies actual legal liability, in the absence of clear policy wording to the contrary.
The Commercial Court recently rejected Barclays’s application for summary judgment against a former partner of a US firm for a capital loan made in his name.
This recent Court of Appeal case provides leading authority in claims that concern breach of trust and relief from liability in accordance with Section 61 of the Trustee Act 1925.
This High Court decision serves as a warning to lenders not to be caught out by the provisions of Section 77A of The Consumer Credit Act 1974.
In a highly awaited decision, the Court of Appeal has overruled the decisions in Goldacre and Luminar and ruled that rent for the use of leasehold property is to be paid as an expense of an administration, but such rent will be treated as accruing from day to day.
The Court of Appeal has recently provided much-needed clarity for lenders and their insurers by confirming consumers cannot top-up compensation payments from the Financial Ombudsman Service by way of court proceedings.
This case is part of a raft of recent cases coming out the Queen's Bench Division, all highlighting the need to establish causative loss before bringing a professional negligence claim against solicitors.
The Queen’s Bench division recently considered the nature of professional negligence claims arising out of a foreign jurisdiction.
The Court of Appeal provides an important reminder of the necessary steps to take in order to preserve the obligations of a guarantor/surety.
In this recent decision, the Commercial Court considered whether an interest swap transaction was void under Italian law.
This Chancery Division case provides a useful reminder of the requirements for relying on s.14A Limitation Act 1980 when bring a professional negligence claim.
A recent High Court decision confirms the Court’s power to determine applications to cancel a unilateral notice which has been registered against a property.
The Court of Appeal has reversed the High Court’s ruling striking out a lender’s claim for break costs as part of a professional negligence valuer claim. The Trial Court will now determine whether a lender can recover the cost of breaking an interest rate hedging arrangement from a negligent valuer.
This case highlights the difficulties borrowers face when claiming undue influence to avoid repossession.
This latest case from the Queen’s Bench Division reinforces the principles of Mitchell and emphasises that litigants who fail to comply with Court rules run the risk of facing heavy costs sanctions.
The Court of Appeal shows no sign of departing from the tough line introduced by Mitchell. This latest judgment enforces the message that litigants are expected to comply with rules, practice directions and orders and that relief from sanctions will not be granted lightly.
The Court of Appeal has confirmed that once a payment guarantee under a performance bond falls due and a demand for payment is issued in good faith (even where it is subsequently found that such demand was made in error) this does not lead to a presumption that monies paid pursuant to the demand is held on constructive trust.
This judgment provides a useful reminder to lenders that even if a settlement is reached between one or more guarantors, a lender may still pursue any balance from a guarantor not party to a settlement.
The Commercial Court’s recent decision on guarantees confirms some important principles that may be of use to lenders.
This recent case looks at when a Civil Restraint Order can be made, preventing a vexatious litigant from issuing further unmeritorious applications and/or claims.
New Court of Appeal judgment considers how damages for trespass are calculated and looks at the question of whether a company can claim aggravated damages.
This case confirms the raft of recent breach of trust decisions: that a breach of trust will arise when solicitors pay away monies other than as authorised and that prima facie a claimant will be entitled to full reconstitution of the trust fund in circumstances where completion does not take place.
The Court of Appeal recently considered the correct test to apply when assessing whether a Local Authority should be held liable for damage caused to private property as a result of its failure to adopt an effective tree maintenance programme. The case serves as an important reminder of the principles considered in the Bolitho case and offers guidance on the issue of causation when looking at damage to property.
The Technology and Construction Court has dismissed an application by JV Limited for disclosure of commercially sensitive documents as being a “fishing expedition” and awarded indemnity costs to Webb Resolutions Limited after criticising JV Limited’s conduct as “an object lesson in how modern litigation should not be conducted".
The Court of Appeal has acknowledged, during an interlocutory application involving two LIBOR manipulation cases, that an individual bank cannot be said to represent the actions of other banks where LIBOR is concerned.
Lender Update: Jetivia S.A. (1) Urs Brunschweiler (2) v. Bilta (UK) Limited (In Liquidation)  EWCA Civ 968.
The Court of Appeal has restricted the impact of Stone & Rolls and has confirmed that a claim brought by a company in liquidation against its fraudulent directors will not be barred by the principle of ex turpi causa.
The Mercantile Court has confirmed that lenders may have more than one route of recovery when borrowers default under Consumer Credit Act Loan Agreements.
This recent High Court decision highlights the need for the proper drafting of agreements, to avoid future litigation over interpretation.
In the recent case of Citicorp Trustee v Barclays Bank Plc, the High Court has confirmed that there are no special principles of construction which apply to securitisation contracts.
In the recent case of Superstrike Limited v Marino Rodrigues the Court of Appeal consider whether a Landlord would be entitled to serve a notice under section 21 of the Housing Act 1988 on a Tenant who had entered into an assured shorthold tenancy before legislation required the deposit to be protected, and remained in the property on a statutory periodic tenancy which began after legislation protecting deposits had been implemented.
The Financial Conduct Authority (the “FCA”) has published its Finalised Guidance on dealing fairly with interest-only mortgage customers who risk being unable to repay their loan, which sets out what the FCA expect firms to do in order to ensure that their customers are treated fairly when faced with an inability to repay the capital sum due on their mortgage at the end of the mortgage term.
The Court of Appeal has overturned the ruling that a guarantor remains liable in a situation where the guarantee was not properly executed by all the parties. This latest judgement highlights the importance of clear and precise drafting.
This judgment of the Court of Appeal confirms that subrogation is a valid equitable remedy for lenders and demonstrates the Court’s willingness to look at the reality of a transaction to achieve it.
This case highlights how a professional may be wrong but still escape liability for negligence.
This case highlights that lenders must choose guarantors carefully and consider the issue of jurisdiction and enforceability at an early stage.
The Court of Appeal has given guidelines to the FSCS on compensation payments arising from mortgage mis-selling.
This latest Court of Appeal case is a reminder for mortgagees accepting third party payments as they could give an unauthorised tenant a right to occupy the security property.
The Bellamy case serves as a reminder to lenders to phrase guarantees in the broadest possible language.
The Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2013 came into force on 30 May 2013. The effect of the Order is to increase the “permitted development thresholds” intended to unblock the planning system with a view to promoting growth, securing sustainable development and increase investment in real estate.
The failure to advance a loan following the alleged satisfaction by the borrower of a condition precedent in a facility agreement was just one of a myriad of issues considered in the recent case of Deutsche Bank (Suisse) SA v. Khan and others.
The High Court considered the application of secondary limitation in this solicitor negligence claim.
Law of Property Act receivers have always faced uncertainty in relation to their obligations to account for VAT incurred or collected as a result of their appointment. This RK Update looks at some recent guidance issued by HMRC on an age old problem.
With 6 April fast approaching, we examine the modernisation of the security registration regime ahead of its implementation next month.
This Court of Appeal decision provides guidance for claimants seeking to rely on longer limitation periods under the Latent Damage legislation.
Following their consideration of the law on the remoteness of damage, the Court of Appeal has confirmed that a contractor may now find itself liable for losses caused by a fall in property values, where there has been a significant delay caused by its breach of contract.
The latest decision on guarantees confirms the Court’s reluctance to interfere with the exercise of a party’s contractual discretion, provided that contractual discretion is exercised for the purposes for which it was conferred.
The Appeal Court has demonstrated a willingness to be commercial and excuse mistakes when considering applications for substitution when limitation has expired.
The Court of Appeal’s latest decision in this breach of trust claim sets a benchmark for what is deemed to be "reasonable behaviour" by defendant solicitors acting on conveyancing transactions.
The Court of Appeal decision in the Standard Life case is of considerable interest to insurers and insureds alike. It limits the ability to apportion claims and allows recovery of mitigation costs.
This important judgment of Coulson J. on 20 December in Webb v e.surv sets new boundaries for mortgage lender claims against valuers, confirming margins of error and principles for contributory negligence to apply.
Support is given to the taxpayer in relation to the use of the transfer of rights and partnership provisions of the Finance Act 2003, for the avoidance of SDLT.
This significant decision of Coulson J. on a claim by a mortgage lender against a valuer sets a new precedent – it is particularly helpful on the acceptable margin of error for a mortgage valuation and in assessing why there was no contributory negligence finding.
This recent case considers the use of warranties and "basis of contract" clauses in insurance policies.
The case of AIB v Mark Redler & Co refines the assessment of recoverable loss in a breach of trust claim arising from a solicitor's duty to their mortgage lender client.
The Jackson Reforms on the recoverability of CFA uplifts and ATE premia are going ahead in April 2013. While some of the important detail remains to be seen, this case has clarified an interim measure on the increase in general damages for personal injury and clinical negligence claims.
This recent decision looks at when the Court will deviate from the usual rule under Civil Procedure Rule 36.14 in relation to the costs consequences of a Part 36 offer.
This update looks at the new criminal offence of squatting in a residential property and how this may help the property owner.
This judgment on a lender valuer negligence claim in a mortgage transaction is a good reminder to lenders that they can only make a recovery if they can show that their loss resulted from the negligent act and not any other cause.
The recent case of Leander Construction Limited v Mulalley and Company Limited considered whether a contractual obligation to proceed regularly and diligently with construction works could be implied into a construction contract.
A recent case highlights the Court’s unwillingness to correct mistakes in registrable contracts (in this instance a legal charge) by interpreting the mistake accordingly.
Lender Update: Mortgage shortfall recoveries – when does time run out?
Mortgage shortfall recoveries - time may be ticking. In WBBS v Wilkinson, the House of Lords determined that the 12yr time period in which a lender might pursue a shortfall debt from their borrower starts to run from the date of default under the mortgage. This update examines how it may affect forbearance arrangements.
Insurance policy claims for the fatal disease of mesothelioma are triggered by the date of exposure to asbestos and not the date that injury is sustained many years later, the Supreme Court has held.
Many lenders are investigating claims against their former professional advisors, some on loans which fall well outside the initial 6yr limitation period. Whilst claims can be brought outside that time period, this case is an illustration that defences are available and should encourage lenders to conduct their investigations as early as possible.
The West Tankers appeal is of interest to all those handling international insurance business. It illustrates that the English Court will uphold and enforce an arbitration award.
A recent High Court decision on the recoverability of losses following the assignment of a cause of action will be of interest to those involved in the buying and selling of debt. Once again, the Courts have not been persuaded by technical arguments which would result in a wrongdoer escaping liability.
This RK Update considers the recent case of Jet2.com Ltd v Blackpool Airport Ltd in which the High Court was yet again asked to interpret a party’s contractual obligation to use "best endeavours" and "all reasonable endeavours"
The High Court recently granted summary judgment, in two separate but related actions, in favour of a licensor of certain trade marks following protracted litigation deriving from the same trade mark licensing agreement. This latest RK Update examines the High Court Decision.
This RK Update examines the recent case of Lloyds TSB Bank Plc v Markandan & Uddin in which a firm of solicitors were found liable to a claimant bank for breach of trust caused by advancing loan monies to fraudsters who had impersonated a London branch of a regional firm of solicitors.
As the current raft of professional negligence claims against valuers continues, the recent High Court decision in Paratus AMC Limited and another v Countrywide Surveyors Limited has considered a number of important issues relevant to such claims, including the permissible margin of error, the impact of securitisation and contributory negligence.
Rosling King LLP recently acted on behalf of Norwich and Peterborough Building Society (the “Society”) in connection with its successful opposition to a second appeal by its personal guarantor (the “Guarantor”) against a Bankruptcy Order made in response to the Society’s bankruptcy petition.
A firm of solicitors were found liable to a lender for the mortgage advances after they had paid away the funds to a non-existent firm of solicitors purporting to act for the purchasers. It was found that they did so in breach of trust and in breach of their retainer.
In the current economic environment, mortgage arrears are increasing and lenders are taking action to enforce their security by taking possession of mortgaged properties. The tipping point for a lender is of course the performance of a mortgage account and whether a borrower has maintained the monthly instalments due under his mortgage.
Since the onset of the economic downturn, various claims brought against property valuers have appeared before the Courts. Most of these cases have concerned valuations of residential property. This RK Update looks at the case of Capita v Drivers Jonas, the first major professional negligence case against a valuer of commercial property to be decided since the downturn began.
Marshalling is a remedy which entitles a creditor to use assets that are secured in favour of another creditor to discharge a debt owed by the same debtor provided that a number of circumstances are met. The recent Court of Appeal decision in Szepietowski v The Serious Organised Crime Agency serves as a useful reminder of the situations in which a creditor may seek to invoke the equitable doctrine of marshalling.
Entire agreement provisions are included in all forms of commercial contracts so as to prevent a contracting party from alleging that statements and representations made during the pre-contract stage and which were are not expressly incorporated into the written agreement constitute additional terms to the parties’ legal relationship.
Most commercial and residential leases or transfers will contain an express clause which requires the tenant or seller to give “vacant possession” at the end of the term or on completion. Should they fail to do so the consequences can be costly.
Part II of the Housing Grants, Construction and Regeneration Act 1996 (the “1996 Act”) currently prescribes the payment mechanics for all construction contracts. The provisions of Part 8 of the Local Democracy, Economic Development and Construction Act 2009 (the “2009 Act”) will, however, once implemented, substantially amend the position by introducing a new statutory payment procedure governed by the service of “payment notices”, “payee default notices” and “pay less notices”. It is envisaged that these provisions will come into force on 1 October 2011.
Since 1976, it has been compulsory for solicitors in private practice to have professional indemnity insurance (“PII”). The current market-based system has been in place since 2000 and has provided a high degree of protection for firms and their clients at a comparatively low cost overall.
The latest RK Update examines HM Treasury’s announcement that it intends to bring the onward sale of residential mortgage portfolios within the scope of regulation by the Financial Services Authority.
This Case Law Update looks at the recent Court of Appeal decision in the professional negligence case of Haugesunde Kommune and another v Depfa ACS Bank.
Rosling King recently acted on behalf of Norwich and Peterborough Building Society (“the Society”) in connection with its successful opposition to an appeal by a personal guarantor (“the Guarantor”) against a Bankruptcy Order made in response to the Society’s Bankruptcy Petition.
This Case Law Update looks at the decision in Southern Pacific Securities 05-2 plc (in substitution for Southern Pacific Personal Loans Limited) –v- Walker and another in which the Supreme Court considered, for the first time, the key concept of credit.
This Case Law Update examines the Court of Appeal's decision in Helmsley Acceptances Ltd v Lambert Smith Hampton which provides comfort to lenders, servicers and issuers seeking redress from professionals who were negligent in the loan origination process.
This Case Law Update looks at the recent case of Good Harvest Partnership LLP v Centaur Services Limited where the High Court considered whether, upon an assignment of a lease, the guarantor of an original tenant can be made to enter into an Authorised Guarantee Agreement along with the original tenant.
The case of Goldsmith Williams v Travelers Insurance Company Ltd is important in the field of solicitor professional negligence. It addresses when an insurer can deprive a solicitor firm of insurance cover for a claim by exercising a dishonesty exclusion.
A look at the case of Goldacre (Offices) Limited v Nortel Networks UK Limited (in administration) which is important for landlords seeking to recover rent from companies which have gone into administration.

matches: EWCA EWCA UKSC UKSC EWCA UKSC EWCA EWCA UKSC EWCA EWCA EWCA v. EWCA v.


The Pennsylvania Department of Agriculture (“PDA”) offers this document as its statement of the policies, procedures and processes by which PDA will accept, handle and respond to requests made pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §67.101 et seq. This Document is effective June 19, 2015, and supplants an earlier Right-to-Know Law Policy that took effect January 18, 2014.
In order to facilitate access to documents of public interest and reduce the need for RTKL requests, PDA routinely makes many documents readily accessible by the public at the PDA website: www.agriculture.state.pa.us. With respect to information relating to solicitations, awards and contracts, the Department of General Services makes this information available through its website: www.emarketplace.state.pa.us. The Department of the Treasury maintains a large library of contracts – including many PDA contracts – at its State Contracts E-Library website: http://contracts.patreasury.org/search.aspx.
Be submitted in person, by U.S. Mail (to the address above), by e-mail (to RA-AG-RTK@pa.gov) or by facsimile (to 717 / 346-3301); Note: A faxed RTKL request should be sent to the fax number provided immediately above. A faxed request that is sent to that fax number outside of PDA’s normal business hours (8:00 a.m. through 4:00 p.m., Monday through Friday, excluding holidays and office closures) will not be accepted by PDA until normal business hours resume.
While verbal requests may be fulfilled by PDA, the requester cannot pursue the relief and remedies provided under the RTKL (including the right to file an appeal) unless the request is in writing.
Note: This form can be completed on-line and electronically transmitted directly to the PDA Agency Open Records Officer.
The downloadable, printable PDA Right-to-Know Request Form available through the PDA website, at www.agriculture.pa.gov.
The downloadable printable form available through the website of the Office of Open Records, at: http://openrecords.state.pa.us.
RTKL Requests are Public Record.
RTKL requests received by PDA will be considered “public record” information by PDA. PDA may make these requests available for public access through its website.
The regular business hours of the RTKL Office are 8:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays and office closures. Any RTKL request received after the close of regular business hours shall be denoted as being received by that office on the following business day.
(b) providing that record if such a written request is made and any applicable payment is made.
Each of these three actions is a "response" for purposes of the RTKL, as is PDA’s written notice to the requester: (a) granting access to a record; (b) denying access to a record; (c) partially granting and partially denying access to a record; or (d) confirming that the record sought is not in the possession, custody or control of PDA. Unless specified in the request, PDA may send written responses to requesters by United States mail, by hand (in person or by delivery service), by facsimile or, by e-mail.
Unless a longer period of time is needed and communicated to the requester by an “interim response” (as discussed in paragraph A below), the RTKL requires that PDA respond to an RTKL request within five business days. For purposes of determining the end of the five-business-day period, the day that a RTKL request is received is not counted. The first day of the five-business-day period is PDA’s next business day.
Example 1: A written RTKL request is received by PDA’s Agency Open Records Officer during normal business hours on a Monday. That date – Monday – is the date the request was received, and PDA must send its response within five business days of that date. Assuming there are no holidays or office closures within the next five business days, PDA’s response must be sent no later than the following Monday.
Example 2: Same facts as Example 1, except that the written RTKL request is e-mailed, faxed or delivered to PDA’s Agency Open Records Officer’s office after normal business hours on a Monday. For purposes of calculating the response interval, the request is not “received” until: (a) business hours resume (on Tuesday); and (b) PDA’s Agency Open Records Officer receives it. Assuming these occur on Tuesday, PDA’s response must be sent no later than the following Tuesday.
Example 3. Same facts as Example 1, but the date on which PDA’s response would ordinarily be due is a weekend day, a holiday or a day when PDA’s business offices are closed. PDA’s response must be sent on the next day that PDA’s business offices are open.
PDA must provide a final response to a RTKL request within five business days unless one or more specific conditions are satisfied and the AORO gives the requester written notice that additional time will be required. That notice is referred to as an "interim response."
The RTKL request requires redaction of a public record.
The RTKL request requires retrieval of a record from a remote location.
A response within the five-business-day period cannot be accomplished due to bona fide staffing limitations, which limitations must be specified in the interim response.
A legal review is necessary to determine whether the record requested is subject to access under the Act.
The requester has not complied with PDA’s policies regarding access to public records.
The actual or estimated fees to fulfill the RTKL request are $100 or more and the requester has not complied with a demand for prepayment of these fees.
Note: Prepayment of fees (or prepayment of estimated fees, where the actual fees have yet to be determined) totaling $100 or more is required by PDA. The time period for response shall be tolled from the time the demand for payment is made until such time as payment is actually received.
state a reasonable date – not more than 30 calendar days from the end of the five-business-day period – that a response is expected to be provided.
Note: If the date of an expected response is in excess of 30 days following the five business days allowed for under the RTKL, the request will be deemed denied unless the requester has agreed in writing to the date specified in the notice provided by PDA.
advise the requester, within 30 days, as to the date by which any responsive public records will be produced.
Failure to make the estimated payment by the date required by PDA in an interim response will result in the request being deemed withdrawn.
the requested records are not in PDA’s possession, under its custody or under its control.
If a written request is denied in whole or in part, or if the records sought are not in the possession, custody or control of PDA, PDA will issue a final written response that will include an explanation of the procedure by which the requester may appeal, if the requester chooses to do so. The written denial will also set forth the specific reasons for the denial, including a citation of supporting legal authority. If the denial is the result of a determination that that the record requested is exempt from disclosure, the specific reasons for PDA’s determination shall be included.
If PDA conducts a good faith search for responsive records and is not able to locate any such records in its possession, under its custody or in its control, the non-production of records is not a denial of access. PDA cannot “deny” access to records that are not in existence or are not in PDA’s possession, under PDA’s custody or in PDA’s control.
PDA will not deny access to a public record based solely upon the fact that portions of the record are not public records and, as a result, not subject to disclosure. PDA will redact the portions of a public record that are not public records and produce the portions that are public records.
PDA has the discretion to determine the building(s) and room(s) that will be used to provide a requester with access to PDA’s public records. The selection of buildings and rooms for access to PDA’s public records is a matter within the discretion of the AORO.
PDA will provide a public record to a requester in the medium requested if the record exists in that medium. Otherwise, the public record will be provided in the medium in which it exists. If a public record only exists in one medium, PDA is not required to convert that public record to another medium, except that if the public record is only available in an electronic form, PDA must print it out on paper if the requester so requests.
PDA is not required to create a public record that does not already exist, nor is it required to compile, maintain, format, or organize a public record in a manner in which PDA does not currently do so.
PDA may either make copies itself or, in its discretion, allow the requester to bring the necessary equipment to make its own copies. PDA may make its duplication equipment available to a requester but require that the requester operate the equipment; assign PDA staff to make the duplications; or contract for duplication services and require the requester to pay the applicable rate.
A person other than PDA or the requester, with a direct interest in the record that is subject to an appeal, has 15 days following actual knowledge of the appeal, but no later than the date the Appeals Officer issues an order, to file a written request to provide information or to appear before the Appeals Officer in support of the requester’s or PDA’s position in the appeal. The Appeals Officer may, but needs not, grant the request.
Fees Determined by the Office of Open Records.
Under the RTKL, the Office of Open Records has the authority to establish two fees for Commonwealth agencies: Duplication, 65 P.S. § 67.1307(b) and Enhanced Electronic Access (an agency may establish user fees, subject to approval by the Office of Open Records), 65 P.S. §67.1307(e).
The fees for duplication are established by the Office of Open Records, as posted on its website at http://openrecords.state.pa.us. Unless otherwise directed by statute, PDA will charge $.25 per page for duplication, but will only charge this fee when the total number of pages exceeds twenty (20). When this occurs, the requester will be charged for the first 20 pages, plus every page beyond that initial 20 pages.
PDA will charge $1 per copy for certified copies, when requested by the requester.
When a fee for duplication is also being charged, PDA will charge the actual cost for postage, facsimile/microfiche or other media, as well as for specialized documents. PDA will not charge postage fees where for postage costs of less than $1.00.
Prior to an adjudication becoming “final, binding and non-appealable,” transcripts may be requested through PDA, however the stenographer or court reporter is permitted to charge the regular fee for this service.
Following an adjudication becoming “final, binding and non-appealable,” a request for the transcript shall be treated like any other request for a record and the usual duplication fee of up to $.25 per page will be charged.
PDA will charge such other fees as were established prior to the adoption of the RTKL for complex and extensive data sets, including geographic information systems. These fees need not correspond to the total number of copies produced.
Reasonable and Necessarily Incurred Costs.
As expressly provided by 65 P.S. § 67.1307(g), PDA has the authority to charge requesters reasonable fees for necessarily incurred costs. PDA will determine and charge such fees on a case by case basis.
A fee will be assessed for all requests that require greater than 20 copies in accordance with the provisions above. Fees for complex and extensive data sets will only be waived in accordance with the provision of the RTKL at 65 P.S. § 67.1307(b)(4)(ii).
PDA will review and determine the appropriateness of any fee waiver request on a case-by-case basis. If PDA provides a non-discriminatory reason for denying a fee waiver request, there is no right to appeal that determination.
The requester must pay in advance the actual fees owed, or PDA’s estimate of the fees where the actual fees are not known, where these known or estimated fees are $100 or more. Payment must be by certified check or by ordinary check, which must first have cleared to be considered received by PDA. The demand for prepayment may specify a reasonable period of time in which the requester must make such prepayment. Failure to make a payment (whether of actual or estimated fees) by the date required by PDA in its interim response will result in the request being deemed withdrawn.
Where an estimated fee is paid by a requester and the estimated fees are subsequently calculated to have been lower than the actual fees, PDA will provide the requester a statement showing how the actual fees were calculated, and the requester will promptly pay the difference to PDA.
Where an estimated fee is paid by a requester and the estimated fees are subsequently calculated to have been higher than the actual fees, PDA will provide the requester a statement showing how the actual fees were calculated, and will promptly pay the difference to the requester.
Where fees are known or estimated to be $100 or more, these fees must be paid in order to receive access to the record requested. (See the RTKL, at 65 P.S. § 67.901). PDA will notify the Office of General Council (OGC) of any requester who has unpaid fees. OGC will maintain a listing across administrative agencies of requesters with unpaid fees. Any requester who has unpaid amounts outstanding to PDA or to any agency under the Governor’s jurisdiction, in relation to RTKL requests where production was made by any such agency, may not be granted access to records under other RTKL requests until such prior amounts due have been paid in full.