Knowledge

In Watson v University of Strathclyde, the EAT held that the inclusion of a particular member of staff on a panel to hear an appeal against a grievance amounted to a fundamental breach of contract, so that the employee who had brought the grievance was constructively dismissed.  The panel member in question was not personally involved in the grievance but was close to the subject of the grievance and had, in the past, expressed views about the subject of the complaint.

Contracts for the sale of land require to be in writing, and be signed by or on behalf of the parties to the contract.  A recently decided case in the Court of Appeal provides important clarification concerning execution of documents by companies.  The case between Roger Williams & Others and Redcard Limited & Others [2011] EWCA Civ 466 reached the Court of Appeal to settle the matter of whether a contract for the sale of land, which required to be signed by individuals and a company, had been properly executed in accordance with the legislation.  On dismissing the appeal,

The recent decision in the Scottish case of Co-operative Insurance Society Limited v Fife Council [2011] CSOH 76 has called into question the ability of Landlords to contract out of extraordinary repairs in FRI (tenant’s full repairing and insuring) commercial leases.

Commercial leases and the common law

The recent Scottish case of Morris v Rae [2011] CSIH 30 has been a timely reminder of the possibility of claiming damages for breach of warrandice, if you are evicted from all or even part of your land or buildings due to a defect or encumbrance on your title. Rights to claim, that might not have been enforced a few years ago, are now more likely, in the current economic climate, to be of greater importance, and it is useful to know what those rights are in case you find yourself in the position of receiving, or being able to make, a claim for breach of warrandice.

Generally when we purchase cars, home entertainment systems and other high value or complex goods, we do not expect there to be any faults in them, and in the unlikely event that problems do occur, we usually have a robust guarantee to call upon in order to get the problem resolved.  However, there appears to be an implicit acceptance that when you buy newly or recently constructed buildings, there will be defects and there is no guarantee that these will be resolved without significant expenditure by the owner.  Indeed, standard form construction contracts anticipate that there may be defe

The recent English case of MW Trustees Ltd and others v Telular Corporation [2011] EWHC 104 (Ch) examines the situation where a tenant does not serve a break option notice in accordance with the service provisions contained in the lease and the effect on the validity of that notice.
Background

In the case of RBS v Ashton, the Employment Appeal Tribunal (EAT) has confirmed that the test for determining whether an employer has complied with its duty to make reasonable adjustments is objective. The focus is on judging the reasonableness of the adjustment in question by considering its practical effect on the disadvantage suffered by the employee.  The reasonableness or otherwise of the employer’s thought process in determining whether or not to make a particular adjustment is irrelevant. 

The government and Ofgem have developed a regulatory framework to deliver the grid links from large offshore windfarms to the existing onshore National Grid network. This note comments on the impact of unbundling on the Offshore Transmission Owners (OFTOs) that will be appointed to carry out this role following competitive tender.

An employment tribunal has recently held that an employee on long-term sick leave and in receipt of PHI benefit was not entitled to payment for accrued but untaken statutory holiday for the duration of the sick leave on the termination of her employment (Souter v Royal College of Nursing Scotland (RCN)).
 

What are collateral warranties and why are they needed?
Collateral warranties have been a common feature of building and engineering projects for many years now, yet to many they remain a mystery.  There are many legal and commercial rationales for collateral warranties, which can be summarised as:

On 3 November 2010, the Institute of Chartered Accountants in England and Wales and the Institute of Chartered Accountants in Scotland published a revised joint guidance (TECH 02/10) on the determination of realised profits and losses for the purposes of making distributions under the Companies Act 2006 (the Act). 

On 1 September 2010 the FSA’s Document Viewing Facility (DVF) was replaced by an online facility, the National Storage Mechanism (NSM).
The NSM will store all information required to be disclosed under the Listing Rules, Disclosure and Transparency Rules and Prospectus Rules i.e. all information previously forwarded for publication on the DVF plus all regulatory announcements.

It may seem like stating the obvious that a tenant should know who its landlord is, but confusion surrounding the precise identity of the landlord has been the subject of litigation in recent years both north and south of the border.

Parent company guarantees and performance bonds are typically used in the construction and engineering industries to provide a developer with some security in the event that the contractor breaches the building or engineering contract or, in some circumstances, upon the contractor’s insolvency.
In the current economic climate, contractor default is, unfortunately, even more prevalent in the construction and engineering industries, and so the issues surrounding parent company guarantees and performance bonds are very much in focus for developers.

The majority of the provisions of the Equality Act 2010 will come into force in England, Wales and Scotland in October 2010.  Property interests are affected, although certain new provisions relating to common parts of premises will not be implemented until a later date.  The 2010 Act consolidates existing discrimination legislation, including repealing the Disability Discrimination Act 1995 in full.

Disability discrimination

While the standard of obligations imposed by a repairing clause in a lease is a hot topic when the lease is being negotiated, the dilapidations claims at the end of the lease may be seen as an opportunity for some landlords to try to seek betterment in respect of the premises which they re-claim, and can come as a shock to the tenants.  In this recessionary climate we are coming across some extravagant Schedules of Dilapidations with landlords seeking to maximise their potential and the tenants fighting tooth and nail to resist.

Leading UK law firm Shepherd and Wedderburn is advising Cairn Energy plc on the sale of a maximum of 51 per cent of Cairn India to Vedanta Resources plc for a consideration of up to US$8,480 million.
The deal will ensure Edinburgh-based Cairn Energy has the financial flexibility to pursue an active exploration programme in its leading acreage position in Greenland and future growth opportunities.
Completion is expected before the end of 2010.
Sir Bill Gammell, Chief Executive of Cairn, said:

Supreme Court hands down Star Energy v Bocardo SA judgment
 

In two recent cases, the UK courts have considered the circumstances in which overseas employees can bring claims for unfair dismissal or discrimination in the employment tribunals. In the first, the Court of Session (the Scottish equivalent of the Court of Appeal) has held that an employee working abroad on a rotational basis can bring a claim against his UK-registered employer for unfair dismissal.

The Employment Appeal Tribunal (EAT) has, in the case of Heaven v Whitbread Group plc, provided guidance on how the effective date of termination (EDT) of employment should be determined. The judgment serves as a reminder that the determination of the EDT depends on what actually happened between the parties. Their wishes or any subsequent agreement as to a different date are irrelevant.

The value of mutual hold harmless indemnities in the energy industry has been highlighted by the recent Supreme Court decision of Farstad Supply AS v Enviroco Limited and Asco UK Limited [2010] UKSC 18. In this case, the court considered the true construction of a clause contained in a charterparty agreement between Farstad Supply AS (“Farstad”) and Asco UK Limited (“Asco”).

Latent defects insurance is often presented as a better way of providing protection against defects, rather than the time and paperwork involved in procuring collateral warranties from multiple parties. There appears to be an increase in popularity for it in the current economic climate, given the potentially significant benefit of the protection continuing even if the contractor or a consultant is insolvent. However, is it really a substitute for collateral warranties? What are the pros and cons of latent defects insurance?

Over the last 12 months, we have experienced a surge in disputes about whether practical completion of a new development has occurred, and it is often nothing to do with whether the building is complete – it is more about parties seeking to escape the consequences of practical completion. Practical completion of a project is of huge commercial significance – its occurrence fundamentally changes the rights that exist not only between the parties to the Building Contract but amongst third parties, such as tenants and purchasers as well.

The feudal system of property ownership in Scotland was abolished in 2004, so that property owners can no longer bemoan many of the limitations imposed on the free enjoyment of their property by feudal “superiors”, and in particular the feuduties which a feudal superior could extract from them. 
However, the road to feudal abolition began much earlier, with the Land Tenure Reform (Scotland) Act 1974, which, amongst other things, began the process of phasing out feuduties payable to superiors, by prohibiting the creation of new feuduties.