Knowledge

On 20 November 2007, Sir David Walker published his report on disclosure and transparency in the UK private equity industry.  The report, which was commissioned by the British Venture Capital Association in February 2007, follows the consultation document published in July 2007.  It sets out various guidelines for enhancing disclosure by private equity firms (which are authorised by the FSA and invest in the UK) and their large UK portfolio companies.

To terminate a lease effectively, the landlord or tenant who wishes to bring the lease to an end must give effective notice of their intention to the other party.  Even where the lease specifies an end date, the party seeking to terminate must serve a notice to quit on the other party to bring the lease to an end.   If neither the landlord nor the tenant serves a notice to quit, the lease will be automatically extended for a further period under the principal of tacit relocation.

Effective notice required

Traditionally, one of a lawyer’s skills is using and manipulating words, but when it comes to dealing with sums, even the most talented wordsmith can falter.  All too frequently the lesson from court actions is that more care should have been taken when drafting the documentation involved, and in the case of rent review provisions in leases, extra care is important given the often complex nature of the interplay between the various components to be taken into account or disregarded when identifying what the new rent is to be.  How much simpler therefore to provide a formula for calculating

The eagerly awaited House of Lords decision in the Scottish case of Moncrieff v Jamieson has finally been delivered, in what it is fair to say is a landmark decision for Scottish property rights.  In a unanimous decision, which none the less contains some differences of opinion as to some of the detail, their Lordships have confirmed that it is possible for a servitude right to park to be implied as a necessary accessory to an express right of access, upholding the view originally expressed by the sheriff over four years earlier.
Access and parking

In criminal proceedings a suspect or an accused has a right not to incriminate himself. That right or privilege is principally seen in the context of the person’s right to remain silent, but how far does that privilege extend and can it be relied upon in disciplinary proceedings?

In its Akzo Nobel judgement, issued on 17 September 2007, the European Court of First Instance has re-affirmed the long-standing rule that EC law does not confer legal privilege protection on communications between in-house lawyers and their internal clients (For further analysis of the implications of this case please click here).

The English law relating to adverse possession was thrown into some disarray in 2005, when the European Court of Human Rights ruled that J A Pye (Oxford) Ltd were entitled to compensation from the UK Government because they had “lost” their title to an area of land in Berkshire, following possession of the land for the period of limitation for a period of 12 years by Mr and Mrs Graham, the local farmers who had originally leased the land. This had happened on the basis of English Law prior to the Land Registration Act 2002, the terms of which now make limitation more difficult.

A case before the Administrative Division of the High Court has held that conditions imposed by the Metropolitan Police (“the Met”) against an anti-war protester exceed the limits of Articles 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention on Human Rights (“the Convention”), which require conditions restricting those rights to be ‘prescribed by law’.

Having a suitable right of access is an essential part of ownership or use of land and property. It is, however, very common for land or property to be owned without having ownership of all or any of the access route to it, and the law relating to servitudes has developed over the centuries to provide a means for appropriate access rights to be obtained and enjoyed in such circumstances.

The takeover by Spanish company Iberdrola of Scottish Power plc presented unique procedural challenges to Scotland’s Commercial Court in the Court of Session, which were overcome through early constructive engagement with the court.
Court-approved schemes of arrangement under s 425 of the Companies Act 1985 have become the preferred choice for implementing agreed takeovers of public companies in recent years.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

The Companies Act 2006 is to change the way in which directors’ compensation for loss of office is regulated.  The provisions of section 312 of the Companies Act 1985 are to be replaced with the provisions of section 215 of the Companies Act 2006 with effect from October 2007.  The new provisions may result in changes in the way in which service agreements with executive directors are drafted, as well as changes in the way in which payments made by a company to a retiring director are considered and quantified.

Procuring a written resolution allows private companies to avoid the formalities of holding general meetings.  However, the requirement in the 1985 Act of unanimous consent for the passing of a written resolution and confusion as to the appropriate procedures for the circulation of, and the passing of, written resolutions has prevented some private companies from using written resolutions in place of general meetings.

There is no general common law duty to provide reasoned decisions.  However, a recent Outer House judgment has served as a reminder that the basic principles applicable to the giving of reasons have developed to such an extent that it is now expected in most circumstances.

Most golf clubs are formed as unincorporated associations.  This is the easiest, cheapest and the most informal way of forming a club.  Upon joining such a club members acquire both rights and liabilities between themselves and the other members.  It is generally the case that the liability of the individual member is limited to his entrance fee (if any) and his subscription.  Responsibility and liability for transactions and activities of the club rests with the club’s management committee.  This is a serious disadvantage of an unincorporated association and members forming part of the man

The so-called “right to roam” legislation came into force in February 2005, but it is only this month that the Scottish Courts have fully considered the competing interests of access rights and a landowner’s right to privacy and security in the high-profile case of Mrs Ann Gloag v Perth and Kinross Council and The Ramblers’ Association.

A Scotswoman’s home is her castle

It appears as though alcohol is never out of the British news, current worries about binge drinking and the myriad of health and social concerns that accompany it have long proved a discussion point on TV and in both broadsheets and tabloids.  It is then hardly a surprise that a Private Members Bill should be brought forward to regulate the labelling of alcoholic drinks.

The DTI published the Energy White Paper on 23 May 2007. The White Paper consists of 11 chapters on energy security and climate change; saving energy; heat and distributed generation; oil, gas and coal; electricity generation (including renewables, carbon capture and storage for fossil fuels, and nuclear power); research and development; transport; planning; devolved administrations; impact of the measures and the implementation process.

Last month’s edition of Open Door looked at a recent decision from the High Court in England on the remedies available to landlords under insolvency legislation in England against tenants who enter into administration.  Similarly, in the recent case of Marinus Charles Maris and Mrs Roxanne Maria Sloane-Maris v Banchory Squash Racquets Club Limited, the Court of Session in Scotland has looked at the statutory arrangements north of the border in relation to irritancy,

The Government published its consultative draft Climate Change Bill on 13 March 2007.  The deadline for responses is 12 June 2007 with a full Climate Change Bill set to be published in the Autumn. The Legislation is to be centred around 4 pillars:

The Companies Act 1985 prohibits a company from giving financial assistance for the purposes of an acquisition of its own shares or those of its holding company. 
The definition of “financial assistance” is circular and has been interpreted broadly to include a series of activities from direct loans to a purchaser by the target company, to the target company reducing or discharging a liability incurred by a purchaser, or a subsidiary of the target company guaranteeing funds lent to the purchaser (and other similar arrangements). 

From 6 April 2007, section 293 of the Companies Act 1985, setting the age limit for directors of public companies and subsidiaries of public companies at 70 years will be repealed.  Companies subject to this section may wish to check their Articles and take steps to deal with the change.

The law relating to keep open clauses has been reasonably well settled, since the decision in Highland and Universal Properties Ltd v Safeway Properties Ltd in Scotland, and the contrasting English position, determined in the case of Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.