Uncertainty over the future of Conditional Fee Agreements (CFAs) and After the Event (ATE) insurance to fund litigation continues with the present government’s consultation on the civil litigation costs review undertaken by Lord Justice Jackson.
Are you being too restrictive? Going beyond what is necessary to protect legitimate business interests
Two recent cases have considered post termination restrictions in employment contracts. Whilst they do not create any new law they serve as useful reminders of the principles which the court will consider when deciding whether to uphold restrictions in employment contracts. Restrictive covenant clauses are a restraint of trade and the court is therefore keen to narrow the extent to which they are enforceable whilst balancing the legitimate interests of businesses.
How many bites at the cherry will the court allow? Discontinuance and dismissal
Discontinuance is governed by Part 38 of the Civil Procedure Rules. All that is required in most cases is for the claimant to file and serve a notice of discontinuance (although in certain circumstances the court’s permission is required). The general rule is that a claimant discontinuing its claim is liable to pay the other side’s costs although the court has discretion to make an order in different terms.
One of the key mischiefs which the Protection from Harassment Act 1997 was designed to address was stalking. However, in recent years the ambit of the Act has been drawn in ever wider terms by the court. Whilst at first glance it might appear that the Act only applies to conduct between private individuals, the court has made clear in recent cases that the Act also has implications in a commercial context. As it imposes both civil and criminal liability it is important that businesses are aware of the offences created by the Act and that steps are taken to avoid liability.
It seems hardly a week goes by without the court providing clarification on the meaning of settlement offers under Part 36 of the Civil Procedure Rules but the latest update is a change to the rule itself rather than a new interpretation by the court. The amendment applies in relation to offers to settle made on or after 1 October 2011 and has the effect of overturning the Court of Appeal decision in Carver v BAA  which has since caused some confusion.
Comply with statutory obligations or risk losing your commission
In the case of The Great Estates Group Limited (“GEG”) v Michael John Digby  GEG entered a sole agency agreement with Mr Digby for the sale of his property. The property was sold within the period of the sole agency agreement but through another agency. GEG issued proceedings to recover damages for its lost commission (amounting to nearly £60,000) but the court found both at first instance and on appeal that GEG was not in fact entitled to its commission.
Gone are the days when insurance brokers could simply pass information between insurer and their insured assuming little responsibility for the accuracy of that information. Over the last decade the duties placed on insurance brokers have developed and expanded so that, more than ever, it pays for those seeking insurance for their businesses to be familiar with the duties placed on insurance brokers particularly in circumstances where a claim is rejected by the insurer.
A recent Court of Appeal decision will be good news for surveyors. The question before the court was whether a valuer owed a duty of care to the purchaser of a buy–to-let property which had been negligently valued.
Sellers beware: instructing multiple agents can lead to more than one commission payment
Seller liability to pay more than one commission (where multiple agents are instructed) is ambiguous and often leads to litigation, as demonstrated in the recent case between Glentree Estates Limited v Holbeton Limited (2011).