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Litigation and things

STOP PRESS

Two pieces of hot news:

(i) on TCC costs management reforms, and

(ii) on the new TeCSA –e-disclosure Protocol

The first concerns the news the Technology and Construction Court will be conducting its own review of the £2m plus costs management exemption from the automatic costs management provisions that currently apply to cases below £2m. The plan it seems is that from about July 2013 the TCC will be undertaking a review of the cases that have gone through first Case Management Conference since 1 April 2013.  A decision then being made that may mean the TCC could opt out of the £2m or more exemption for automatic costs management and thereby apply it to all standard cases.

The second is that TeCSA has set up a Working Group's with the objective to provide TeCSA members with guidance, know-how and training on E-Disclosure to raise members’ understanding of what is required in practice to meet their E-Disclosure obligations under the CPR and how best to manage the practical and technical complexities of the process consistent with best practice and the new cost management and other rules implementing the Jackson reforms. 

A key goal in this mission is to radically reduce the disparity in terms of knowledge and experience that currently exists amongst practitioners which continues to affect the efficiency and cost-effectiveness of the litigation process and which is a continuing cause for concern for the TCC judges.

To achieve this objective the Working Group has resolved to:

·  Produce an E-Disclosure Protocol in conjunction with TECBAR and SCL, specially designed to meet the particular needs of TCC business,  for consultation with the TCC Judges this summer with a view to its incorporation into the new TCC Guide in Autumn 2013 as representing a best practice code or set of guidelines with which they will require or at least expect familiarity and compliance;

·  Produce a pro forma Disclosure Report (to be served 14 days before the first CMC) for consultation with the TCC Judges;

·  Establish and maintain a body of E-Disclosure know-how material on the TeCSA website which will be available to TCC users (and presumably TECBAR too); and

·  Establish a training programme to educate TeCSA/TECBAR members in legal, technical and practical E-Disclosure issues.  

In this vein I am delighted to invite your attention to TeCSA’s mission statement. We will soon announce more details on this very important initiative.

Save the Date - TeCSA Champagne Summer Party

Following the great success of our previous summer cocktail parties, TeCSA will be holding another jamboree this year on Wednesday 12 June 2013 at Pinsent Masons Roof Terrace at level 7, 30 Crown Place, near Liverpool Street.

 Keep it clear!

 Best wishes

 Simon Tolson

Chairman of TeCSA

See attached

Reforming the costs of civil litigation: 20th March 2013

Reforming the costs of civil litigation:  How the Jackson costs reforms will affect the TCC

20th March 2013

Star Speaker:  Mr Justice Vivian Ramsey

Location:  Royal College of Surgeons

Click here for further details.

Latest News

Energy Performance Certificate Regime changes

A number of changes to the Energy Performance Certificate (EPC) regime came into force on 9 January 2013 under the consolidated Energy Performance of Buildings (England & Wales) Regulations 2012. Most of these changes result from implementation of the 2010 EU Energy Performance of Buildings Directive.

If you intend to construct, sell or rent out a roofed construction, having walls for which energy is used to condition the indoor climate (also known as a building), then you should familiarise yourself with the requirements of the new regulations.

Display of Energy Performance Certificates

Since 9 January 2013, a new obligation applies to any building which both:

  • has a total useful floor area of more than 500m²; and
  • is frequently visited by the public.

Where an EPC has been made available in respect of the building / relevant part of the building, the EPC must be displayed in a prominent place clearly visible to members of the visiting public.

Fresh DCLG Guidance provides that a building "frequently visited by the public" means a building to which the public has an "implied" or "express" licence to enter and which is regularly visited by members of the public on a daily or near daily basis. This may well rise to uncertainty in many cases where the public have access to a building in practice.

It is not apparent from the regulations who needs to satisfy this duty. The DCLG Guidance states that the building "occupier" is responsible. There will be an ambiguity in particular for multi-let buildings. It would seem logical that it is the landlord who must display the EPC where an EPC of whole has been produced (probably in the building foyer), but there might also be requirements on individual tenants to display either the building EPC, or EPC of a demised part, in their individual premises. The safest course is likely to be for any tenant to display a copy of a valid EPC in their possession.

Where the display duty applies, there is also a duty to ensure that the EPC remains valid. This would mean that after 10 years, a new EPC would have to be prepared (if it has not already been replaced in the meantime), and that replacement EPC displayed as above.

The regulations do not appear to contain a penalty for failure to comply with this duty; we have asked for clarification from DCLG and await a response.

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Robbins v London Borough of Bexley [2012] EWHC 2257 (TCC)

This case affirmed that damage caused to your property by trees planted by a Local Authority might be recoverable. It highlights the need to notify the Authority as soon as damage is apparent so that the Authority is put on notice, which can prove to be very important in future litigation.

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UK Supreme Court decision in Prudential case

In November 2012 the Supreme Court heard an appeal against the Court of Appeal's decision in R (on the application of Prudential PLC & anor) v Special Commissioner of Income Tax & anor [2010] EWCA Civ 1094 confirming that legal professional privilege is restricted, at common law, to members of the legal professions. Various bodies including the Law Society, the Bar Council and the Institute of Chartered Accountants in England and Wales (ICAEW) were given permission to intervene in the Supreme Court. The timing of the judgment is uncertain, but we would expect it to be received in the first half of 2013.

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Jurisdiction and enforcement of judgments

Significant changes were adopted in December 2012 to the Brussels Regulation (Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) but will not take effect until 10 January 2015. The recast Regulation (Council Regulation (EU) No 1215/2012) includes provisions to improve the position of parties against whom proceedings are brought in breach of jurisdiction or arbitration agreements (addressing the difficulties caused by the Court of Justice of the European Union (CJEU) decisions in Gasser and West Tankers) and will make EU Member State judgments immediately enforceable across the EU without the need for an intermediate registration process in the enforcing state.

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