The defect in this case concerned a lease which the seller believed had been surrendered by operation of law.  Had the seller carried out a bankruptcy search against the tenant it would have established that the tenant was in financial difficulties and the ability of the tenant to surrender the lease was constrained by the rules relating to insolvency.

This case highlights the risks of informal surrenders (as when keys are handed back) and the importance of carrying out the relevant searches.

Going forward sellers will need to consider at an early stage what, if any, defects affect (or may affect) a property. Failure to do so may, as happened in the Area Estates case, result in buyers being able to extricate themselves from purchase contracts.

This is a major expansion of the scope of the CAP Code but since the ASA has always tended to deal with complaints received rather than actively reviewing marketing communications it is not easy to tell if the implications for business will be as significant as they appear in the letter of the Code. For example, when posting details of promotional offers on Facebook will a company need to provide full terms and conditions in the posting or simply provide a link to them?

The law has for some while recognised that in certain instances this approach won’t produce an equitable outcome. In these cases damages are measured by reference to the benefit which the trespasser has gained by the use of the land in question.

In the recent case of Stadium Capital Holdings -v- St Marylebone Property Company the High Court appeared to have extended this exception by awarding damages equating to the total income earned by the defendant from unlawfully erecting a hoarding in air space over land owned by the claimant. The Court of Appeal has now decided that awarding such a high level of damages, without appropriate evidence, was wrong . The proper approach will ordinarily be to award damages equating to the “hypothetical licence fee” i.e. the amount the parties would have negotiated as a reasonable licence fee in order to permit the relevant activity.

A party accused of trespass should keep an eye on its potential liability, bearing in mind the comments made by the Court of Appeal, that where appropriate evidence is submitted, a higher level of damages than was ultimately awarded in the Stadium Capital Holdings case might be appropriate. A party considering pursuing an action for trespass will be well advised to gather as much “appropriate” evidence before bringing a claim.

Housing Associations inability to reclaim VAT is often dealt with by the disapplication by the Housing Association of the vendor’s option to tax. The supply of a site following service of the notice is exempt for VAT and this can enable Housing Associations to develop sites which would otherwise be unviable.

Where Housing Associations are unable to commit to purchase owing to the reduction in the NAHP funding or uncertainty over its availability, a developer who has been endeavouring to facilitate the disposal and development of a site on which VAT is payable is left in a difficult position. The developer may choose to purchase the site itself, reclaim any VAT and develop to “Golden Brick”. At this point the sale of the site to a Housing Association (once any funding issues have been resolved) will be deemed, for VAT purposes, to be the disposal of a dwelling or dwellings upon which VAT is not payable (or on which more accurately VAT is payable but at the rate of zero).

In this situation the developer will be incentivised to build as quickly as possible but also to persuade the Housing Association to accept the recent guidance issued by HM Revenue and Customs, that Golden Brick isn’t simply necessarily two bricks above the damp proof course (being the definition traditionally used) but rather the point at which construction of the building has progressed beyond the foundation stage. With a large building or development this might bring the completion date forward significantly and so improve the developer’s cash flow.

Getting the definition of “Golden Brick” right and considering the other options available to navigate a route through the obstacles which VAT can present when developing in conjunction with Housing Associations is and will for the foreseeable future, remain a key issue for any developers active in this field.

The redevelopment ground requires the Landlord to show that it has both a firm and settled intention to redevelop and that there is a reasonable prospect of the Landlord being able to carry out the development. It’s now clear, following the Somerfield Stores case, that the intention to redevelop doesn’t have to be formed (and therefore proved to the court) until the date of any trial.

The judgement means that Landlords now have longer to address any obstacles to redeveloping tenanted sites where Tenants seek to renew existing leases and obtaining vacant possession of those sites entails proceedings under the Landlord and Tenant Act 1954.

On the other side of the fence where Tenants are aware of development proposals being formulated by Landlords, they will need to actively pursue renewal proceedings to prevent Landlords from having an extended period in which to formulate and progress their plans.

The courts will no longer tolerate what has until now been euphemistically described as “self help”. So long as the searching spouse did not overtly break into premises, intercept original mail or retain original documents, then they would normally be able to rely on them. The rationale behind this is that it often exposed a less than honest spouse. However, in a recent case of Imerman, the Court of Appeal said that it was no longer appropriate for the Family Courts to tolerate such behaviour which would not be allowed in other divisions of the court. At the end of the day they have made a very simple rule that interception or theft of documents is wrong regardless of the context in which they are obtained.

The Court of Appeal has held that the searching spouse may be at risk of various claims by their other half if they have inappropriately obtained information. The penalties which might be imposed will depend on the severity and circumstances of the breach but the very clear message being sent out is that this is no longer a practice which will be tolerated.

The Court of Appeal have made clear that the proper course of action (if one suspects the spouse of hiding information) is to firstly apply to the court expressing one’s concerns (without letting the other half know) and to request “a search and seize order”. This would certainly up the ante in most divorce cases as the first someone may know of such an order is when a team of investigators/auditors turn up on the doorstep demanding to enter the premises and seize information and records. Many divorce lawyers have concerns about this for obvious reasons. It really will increase the temperature in cases as well as the cost if such procedures are to be invoked. Whilst this may well be the appropriate practice in commercial litigation, to provide this method into family cases worries a number of divorce lawyers.

Also much has been made in the press of this being seen as “a cheat’s charter” – allowing the more business minded spouse to take steps to avoid providing truthful information and limiting the introduction of damning evidence against them.

At Paris Smith we see the sense in the Family Courts operating to the same rules as other courts but the by-product of this could lead to a number of both odd and unjust results in many divorce cases. For example, a wife may have evidence that the husband has assets hidden abroad but would not be able to introduce that evidence unless it had been properly obtained. How can a court possibly make a fair decision on the division of the assets if a substantial chunk is being ignored simply because the method by which the information is introduced is not considered lawful?

We would welcome your comments either from your experiences or thoughts in general as to the impact this will have on cases going forward.

The UK Intellectual Property Office (IPO) has issued a further warning about this type of correspondence, where various unofficial IP services are offered, including assistance with renewals of patents and trade marks and invitations for applications into publications and registers, in return for payment of a fee.

The only offices which are able to provide legal protection for patents, designs and trade marks in the UK are the Intellectual Property Office, the European Patent Office and the Office for Harmonization in the Internal Market (OHIM).

Should you receive any suspicious looking correspondence, please contact us to confirm its authenticity.

It is therefore clear that directors must retain a good grasp of competition law and ensure that their company has adequate policies and procedures in place to prevent it from falling foul of UK and EU competition law.

The guidance makes it clear that ignorance is not an excuse and the OFT will be just as concerned with directors who ought to have known of competition law breaches as those whose conduct contributed to the breach.  In considering whether a director “ought to have known” of the breach, the OFT is likely to take into account:

• The director’s role in the company;
•  The relationship of the director’s role to those responsible for the breach;
•  The general knowledge, skill and experience possessed by the director and that which a director in his position   should possess; and/or
•  The information available to the director.

The guidance enables the OFT to accept undertakings in place of disqualification and to give immunity where a director co-operates with an OFT investigation.

The OFT has indicated that the changes are not intended to place a higher burden on particular directors but, given that the role of the director will be taken into account, it seems that directors with compliance responsibilities and those involved in sales, distribution and marketing (who naturally are more likely to be aware of anti-competitive practices) will be in a more vulnerable position.

It is acknowledged that directors are not expected to be experts in competition law and the OFT have promised to publish some guidance setting out what a director is expected to know.  In the meantime, if a director is concerned that practices within their business may be anti-competitive, specialist advice should be obtained.

The LDF offers reduced penalties to individuals with undeclared income or gains if they make full disclosure to HMRC. There may also be inheritance tax savings if assets have been inherited prior to 1999. If you have any offshore accounts in other jurisdictions you may be able to make disclosure under the LDF by transferring assets to Lichtenstein.

For further information please contact Amanda Scally at Paris Smith on 023 8048 2293.