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The potential impact of Brexit on the e-commerce sector

The potential impact of Brexit on the e-commerce sector Commercial analysis: Adam Richardson, barrister at Whitestone Chambers, assesses the implications for practitioners advising on the e-commerce sector, in both a withdrawal agreement scenario, and a no deal Brexit scenario.   What is the current situation? The current circumstances surrounding e-commerce regarding provisions of goods and services were harmonised under various EU Directives, but primarily the E-commerce-Directive 2000/31/EC. The purpose of the Directive is to remove obstacles to cross-border online services in the EU and provide legal certainty to businesses and citizens in cross-border online transactions. Present harmonisation has allowed easy, transparent trade between nation states within the EU. What are the potential legal implications of Brexit for the e-commerce sector under the withdrawal agreement scenario……

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Does the house always win? Not if responsibility isn’t voluntarily assumed

Does the house always win? Not if responsibility isn’t voluntarily assumed Banca Nazionale del Lavoro SPA v Playboy Club London Limited and others [2018] UKSC 43 Whilst a trial judge had found that duty of care is owed to a party’s undisclosed principle, the Court of Appeal disagreed. The issue before the Supreme Court was whether a bank was liable for a negligent credit reference to an undisclosed principal whom had relied upon it. Pursuant to their policy, Playboy Club London, (‘the Club’), requires credit references for the use of their cheque-cashing facilities at their club. However, to avoid disclosing the purpose of the reference, the Club utilises Burlington Services Ltd, (‘Burlington’) to request these references from the banks of gamblers. In October 2010, Hassan……

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Hall Fire Melts Away Frozen-Food Company’s £6.6 million Claim

In Goodlife Foods Limited v Hall Fire Protection Limited [2018] EWCA Civ 1371, the Court of Appeal held that the express alternative of insurance meant that a ‘far-reaching’ exclusion clause was reasonable pursuant to Unfair Contract Terms Act 1977. Goodlife, a frozen-food production company, purchased a fire detection and suppression system from Hall Fire a year after being provided with a quotation. Not only were Hall Fire’s T&Cs attached to both the quotation and acknowledgment of order, but also the face of the quotation drew attention to Clause 11, which read:   ‘We exclude all liability, loss, damages or expense consequential or otherwise caused to your property, goods, persons or the like, directly or indirectly resulting from our negligence or delay or failure or malfunction of……

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A striking decision? Industrial action ruled not extraordinary by European Court

The CJEU holds that compensation under Regulation 261/2004 is payable by carrier for delays or cancellations caused by its own employees’ wildcat strike 1. On the 17 April 2018, the Court of Justice of the European Union(“CJEU”) handed down judgment in the joined cases of Helga Krüsemann and Others v TUIfly GmbH (“Krüsemann”) [1,2]. 2. The applicants in the proceedings all had bookings with TUIfly for flights provided by the carrier between 3 and 8 October 2016. All those flights were cancelled or subject to delays equal to or in excess of three hours upon arrival due to an exceptionally high number of absences on grounds of illness amongst TUIflystaff, following the carrier’s notification to its staff of company restructuring plans. 3. The CJEU noted that whilst absenteeism……

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Who’s the operating carrier? Not the lessor rules the European Court

The CJEU holds that compensation under Regulation 261/2004 is not payable by the carrier who operated the flight under a wet lease   1. On 4 July 2018, the Court of Justice of the European Union (“CJEU”) handed down judgment in the case of Wirth and Others v Thomson Airways Ltd (“Wirth”)1. The case concerned who the operating air carrier was within the meaning of Article 2(b) of Regulation (EC) No. 261/2004 (“the Regulation”) in respect of a delayed flight the claimants had been carried on. 2. The claimants had confirmed bookings for a flight from Hamburg in Germany to Cancún in Mexico, bearing a flight code which referred to TUIFly. The booking confirmation stated that the bookings were issued by TUIFly, but that the……

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O’Connor v Bar Standards Board – Disciplinary proceedings. A continuous process.

Portia O’Connor won a landmark decision earlier this month when the Supreme Court unanimously decided to allow her appeal against the Bar Standards Board (BSB) and find that her claim was not time barred. This decision stems from a line of litigation starting in 2010 when the BSB Complaints Committee brought 6 disciplinary charges against Ms O’Connor.  In May 2011 the Disciplinary Tribunal found 5 out of the 6 allegations proved. Ms O’Connor appealed to the Visitors of the Inns of Court who overturned the decision. Following her appeal, in 2013 Ms O’Connor issued proceedings against the BSB alleging a violation of Article 14 of the European Convention on Human Rights read in conjunction with Article 6 ECHR, contrary to section 6 of the Human……

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The Court of Appeal’s Decision in Wood v TUI Travel plc T.A. First Choice 2017 EWCA Civ 11

The Court of Appeal was recently asked whether a couple could recover damages pursuant to the implied condition in section 4(2) of the Supply of Goods and Services Act 1982, (“the 1982 Act”), for harm suffered whilst on an all-inclusive holiday. In April 2011, Mr and Mrs Wood travelled to the Dominican Republic on holiday.  Whilst there Mr Wood suffered acute gastroenteritis and had to be hospitalised for four days.   It was accepted by His Honour Judge Worster that the couple only consumed food provided by the hotel during their stay.  He concluded that the provision of food and drink to Mr and Mrs Wood constituted the supply of good and services under the 1982 Act and awarded them £24,000 in total compensation. First Choice……

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The Final Destination? The Court of Appeal’s decision in Gahan v Emirates

The Court of Appeal holds that compensation under Regulation 261/2004 is available for delay on connecting flights which start or end outside of the EU. 1. On the 12 October 2017, the Court of Appeal delivered judgment in the joined cases of Gahan v Emirates and Buckley and ors v Emirates [2017] EWCA Civ 1530, in which both the Civil Aviation Authority and the International Air Transport Association intervened. Flying Emirates through Dubai 2. Miss Thea Gahan had booked with Emirates to travel from Manchester to Dubai (the first leg) and then from Dubai to Bangkok (the second leg). Her first leg was delayed so that she arrived in Dubai 3 hours and 56 minutes late, missing her connecting flight, and finally arrived in Bangkok……

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O’Connor v Bar Standards Board Disciplinary proceedings. A continuous process

Portia O’Connor won a landmark decision earlier this month when the Supreme Court unanimously decided to allow her appeal against the Bar Standards Board (BSB) and find that her claim was not time barred. This decision stems from a line of litigation starting in 2010 when the BSB Complaints Committee brought 6 disciplinary charges against Ms O’Connor. In May 2011 the Disciplinary Tribunal found 5 out of the 6 allegations proved. Ms O’Connor appealed to the Visitors of the Inns of Court who overturned the decision. Following her appeal, in 2013 Ms O’Connor issued proceedings against the BSB alleging a violation of Article 14 of the European Convention on Human Rights read in conjunction with Article 6 ECHR, contrary to section 6 of the Human……

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Genuine Discretion vs Absolute Contractual rights

Business contracts have become the language and form of commercial transactions. Their ubiquity is only surpassed by their functionality. They are useful for establishing one parties rights and obligations towards others as well as available remedies and dispute resolution mechanisms. Contracts can also confer powers upon a party to decide on issues that affect another party. As useful as contracts are it is not always the case that all their terms are in writing. Terms are often implied by statue, common law or other mechanism and this can impact the way the contract is performed. Therefore, it can be the case that the interpretation and performance of a contract is not governed by the wording alone. This is the case when exercising a “genuine discretion”……

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Some risk for Great Reward: Longford Capital Secure Massive Investment for Litigation Funding

Litigation funding appears set to continue its exponential growth, with litigation funder Longford Capital Management LP announcing in September of this year that it had managed to raise a $500 million fund to support its litigation portfolios. Longford Capital is a private investment company that provides funding to law firms, businesses, and individuals involved in large commercial disputes. Typically, this means claims worth between $25 million and $1 Billion. Litigation funding covers lawyer’s fees and expenses incurred during litigation, in return for a piece of the settlement/ judgment if the case is successful. If unsuccessful, the client does not owe the funder anything. This form of investment seems to be attracting investors from numerous sectors looking to take advantage of this new asset that isn’t……

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Flight makes emergency landing after wife secretly discovers husband cheating on her

For many, the design and release of “Touch ID”, a feature on all iPhones since 2013’s iPhone 5S,[1] has changed the way we access our phones and protect the private information contained on them. Rather than requiring a code, Touch ID allows phone users to unlock their device[2] by holding their fingerprint over a touch-sensitive button. Passengers on Qantas flight QR-972 from Doha to Bali may now dispute the apparent advantages[3] of such instant access, after an argument between a husband and wife caused the pilot to make an emergency landing in Chennai on Sunday, 5 November. The wife, who was allegedly intoxicated, used her sleeping husband’s fingerprint to unlock his phone and discovered incriminating messages in his inbox. She apparently became aggressive with the……

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A bitter taste in the mouth of travel providers? The Court of Appeal’s Decision in Wood v TUI Travel plc T.A. First Choice 2017 EWCA Civ 11

The Court of Appeal was recently asked whether a couple could recover damages pursuant to the implied condition in section 4(2) of the Supply of Goods and Services Act 1982, (“the 1982 Act”), for harm suffered whilst on an all-inclusive holiday. In April 2011, Mr and Mrs Wood travelled to the Dominican Republic on holiday. Whilst there Mr Wood suffered acute gastroenteritis and had to be hospitalised for four days. It was accepted by His Honour Judge Worster that the couple only consumed food provided by the hotel during their stay. He concluded that the provision of food and drink to Mr and Mrs Wood constituted the supply of good and services under the 1982 Act and awarded them £24,000 in total compensation. First Choice……

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Excessive service charges and what to do about them

Background Service charges are fees that homeowners often commit to pay under the terms of the lease they enter into when they purchase their homes.[1] They are increasingly common in share-of-freehold properties, and commonly include the costs of insurance, lighting, maintenance, cleaning and the repair of common parts such as lifts and gyms, as well as fees for the purchase, sale, sublet or alteration of a flat. They can also effect the purchase of some freehold properties. In recent years, such charges have spiralled and are often excessive, both in their amount and in exchange for the quality of service received. Research by Direct Line for Business indicates that a third of management companies hiked service charges in the years 2014 to 2016, pushing the……

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New aviation insolvency rules suggested in wake of Monarch collapse

In the early hours of the morning on 2 October 2017, Monarch Airlines flight ZB3785 from Tel Aviv to Manchester touched down. It was to be the Airlines’ last flight, just under 50 years since its first, when its Bristol 175 Britannia 300 turboprop landed in Madrid.The collapse of the company resulted in the largest ever peacetime repatriation exercise, during which the Government and the Civil Aviation Authority, (the “CAA”), brought 110,000 stranded passengers back to the UK, running 700 flights over a two-week period. Commenting on the operation, Chris Grayling, Secretary of State for Transport, said that “[t]he CAA has essentially set up one of the UK’s largest airlines to conduct it”. The Government has wasted no time in suggesting that the time has……

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Government begins crackdown on fraudulent holiday sickness claims following landmark private prosecution

Background In June 2015 and July 2016, Paul Roberts, Deborah Briton and their two children visited the ever-popular holiday destination of Mallorca, the largest of the Balearic Islands. Upon return to the UK after their 2015 holiday, Ms Briton posted on her Facebook account: “Safely home after two weeks of sun, laughter, fun and tears. Met up with all our lovely holiday friends who made our holiday fab”. She similarly posted after the 2016 holiday: “Back home after a fantastic holiday, my favourite so far”. Notwithstanding their evident enjoyment of their holidays, the couple instructed solicitors in August 2016 and claimed against the hotel for £20,000 compensation after gastroenteritis, (also known as “Spanish tummy”), allegedly ruined their holidays. The letter before claim stated that: “Our……

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The Final Destination

The Court of Appeal holds that compensation under Regulation 261/2004 is available for delay on connecting flights which start or end outside of the EU. 1. On the 12 October 2017, the Court of Appeal delivered judgment in the joined cases of Gahan v Emirates and Buckley and ors v Emirates [2017] EWCA Civ 1530, in which both the Civil Aviation Authority and the International Air Transport Association intervened. Flying Emirates through Dubai 2. Miss Thea Gahan had booked with Emirates to travel from Manchester to Dubai (the first leg) and then from Dubai to Bangkok (the second leg). Her first leg was delayed so that she arrived in Dubai 3 hours and 56 minutes late, missing her connecting flight, and finally arrived in Bangkok……

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Note On Costs

COST PRINCIPLES From the White Book and Cook on Costs CPR PARTS 44-47 PART 44 CPR – GENERAL RULES ABOUT COSTS I. SUMMARY OF PART 44(2) CPR A.THE COURT’S DISCRETION AS TO COSTS 44.2(1)- the court has a discretion as to (a) whether payable; (b) amount; and (c) when they are paid 44.2(2) – general rule is that costs follow the event, i.e. the unsuccessful party pays costs of successful party; but (b) the court may make a different order. 44.2(4) – court must have regard to all the circumstances, including: (a) the conduct of all the parties; (b) whether a party has succeeded on part of a case even if unsuccessful overall; and (c) any offer to settle which does not have Part 36……

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Pre-Action Protocol for Debt Claims

The Pre-Action Protocol for Debt Claims, (the “Protocol”), comes into force on 1st October 2017. The following article examines the concept of ‘debt’; this article focuses on the purpose, procedure and effects of the Protocol. The objective of a Pre-Action Protocol is to prescribe the conduct the court expects the parties to take prior to commencing legal proceedings. In line with Lord Jackson’s 2010 review of litigation costs, the Protocol aims to encourage early communication and exchange of information and documents between the parties so to enable them to resolve the dispute without litigation. This Protocol expounds the new procedure for a business, (the “creditor”), to follow when claiming repayment of a debt from an individual, (the “debtor”). It does not concern debts between businesses,……

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LATEST – Multi-Track Fixed Costs

Lord Justice Jackson has tabled plans for extending fixed recoverable costs. He conceded that fixing it would not be possible without reform to procedures. Having previously suggested that fixed costs could be applied to all claims up to a value of £250,000, Jackson’s latest proposals account to a significant scaling back. His report proposed finishing the job of introducing a f…

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Temple Women’s Forum Cross-Profession Networking Garden Party: Chambers’ Perspective

The Head of Chambers sponsored female members of chambers to take part in the Women’s Forum. We were delighted to attend the Temple Women’s Forum Garden Party last week. This annual event was kindly ran by the Temple Women’s Forum, an organisation set up in 2012 with the view to supporting and encouraging women practitioners and judges throughout their careers at the Bar or …

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Barrister’s wardrobe malfunction hits the headlines

Over the weekend, Whitestone Chambers newest tenant, Matthew Gillett, went viral on Twitter and made it onto the sport’s pages of the BBC website following a sartorial slip. Matthew is a Bristol City fan and season ticket holder. He pre-ordered the away shirt for the forthcoming 2017/18 season and when it arrived, all looked to be in order. However, after having worn it for a marathon training run…

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In-Flight WiFi: How Gogo achieved its dominance

In-Flight WiFi: How Gogo achieved its dominance The in-flight WiFi provider ‘Gogo’ has a reputation for poor speed and connectivity, with travelers frequently complaining of the system’s slow speed compared to its price (costing up to $60). However, with Gogo possessing 80% of the market share the consumer often has no choice but to choose it as their in-flight WiFi provid…

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RULE 44. 11 – COURT’S POWERS IN RELATION TO MISCONDUCT:

Part 44 of the Civil Procedure (Amendment) Rules 2013 (SI 2013/262) was re-enacted on 1st April 2013 and concerns the court’s powers in relation to misconduct. incur Where a party (a) fails to comply with a court rule in assessment or summary proceedings, or (b) acts unreasonably or improperly before or during proceedings the court may disallow all or part of the costs which are being assessed or order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur.

The misconduct extends to the legal representative of a party as well as to the party personally and includes both summary assessment and detailed assessment proceedings and refers to any failure to comply with the provisions of Part 47 and any direction, rule, practice direction or court order.

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The CJEU’s striking decision – Peskova examined

The CJEU’s striking decision – Pešková examined On 4 May 2017, the Court of Justice of the European Union (“CJEU”) handed down judgment in the case of Marcela Pešková, Jirí Peška -v- Travel Service A.S. (C-315/15)[1] (“Pešková”). The case concerned the central question of whether a bird strike to an aircra…

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Mobile technology and the future of construction rental

Mobile technology and the future of construction rental Leasing construction equipmentis often a costly and time-consuming process. The equipment needs to be sourced, contracts need to be drawn up and signed, and delivery needs to be arranged. Getting the best deal might involve looking up dozens of potential providers to get quotes. Those “in-the-know” in the industr…

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CASE SUMMARY: THE HIGH COURT DISCOURAGES MISUSE OF PRECEDENT R

Judgement was handed down on 12 May 2017 in Findcharm Limited v Churchill Group Limited [2017] EWHC 1108 (TCC) (available here). Parties making a tactically low Precedent R costs budget response in the hopes that the court will perform its own assessment to their advantage may instead find the court agreeing to the other party’s costs budget in full.

PRECEDENT R

Under the new Precedent R each party is required to comment on the costs budget of the other. This is designed to oblige each party to a dispute to adopt a realistic approach to the budget of the other and to help identify the real dispute between the parties as to costs.

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Saving the Environment: The Prospect of Electric Aircraft

The electric car, once only the domain of eccentric Sci-Fi movies, has now well and truly found its way into everyday consumer life. So, what’s next for the world of fuel innovation? Will we really be able to power commercial flights using just electric fuel, as we now can cars? A start-up company formed just last year believes we will. The goal of Wright Electric is to make every short-hau…

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BIRD STRIKES RULED AS “EXTRAORDINARY CIRCUMSTANCES” BY THE EUROPEAN COURT OF JUSTICE

A collision between an aircraft and a bird may now be defined as an ‘extraordinary circumstance’, according to the Court of Justice for the European Union (“the Court”) in a judgment delivered on 4 May 2017.

The ruling means that any collision with birds may exempt an air carrier from the need to pay compensation under Regulation (EC) No.261/2004 (“the Regulation”) to passengers in respect of flight cancellations or delays of over three hours.

The case concerned Ms Marcela Pešková and Mr Jirí Pešká, who encountered a long delay to their flight from Burgas (Bulgaria) to Ostrava (Czech Republic) in August 2013 with the Czech airline Travel Service. The aircraft set to complete their trip had already flown from Prague to Burgas, Burgas to Brno and from Brno to Burgas before commencing their journey.

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HOW IN-FLIGHT WI-FI WORKS

We’ve all had the same problem: you walk too far away from your Wi-Fi router and, all of a sudden, your Wi-Fi stops working. We all know that it’s simply because the router’s signal isn’t strong enough to reach you that extra few feet away. There is sadly a limit on the strength of Wi-Fi connectivity. But, if Wi-Fi is so dependent upon your proximity to a router, doesn’t it seem strange that Wi-Fi can work in an aeroplane, 35,000 feet above the ground?

So, how does this technology work? Is the answer routers in the sky? Or an invisible cable dropped down to the ground to keep you connected, as you travel at 900 km/h through the air? Close.

More and more commercial airlines are offering their passengers on-board Wi-Fi, whether free of charge or for an extra add-on fee, and they’re all using one of two ways to do it.

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A STEALTH DEATH TAX? THE LORD CHANCELLOR INCREASES PROBATE FEES

The government ignored opposition and is going ahead with the proposed probate fee increase. For estates worth over £2 million the fee could now be £20,000

WHAT IS PROBATE?

Probate describes the legal and financial processes involved in dealing with the property, money and other assets of the deceased. This normally involves the appointment of an executor who will deal with the deceased’s estate.

The government is to increase probate fees and thereby seeks to generate roughly £300m. The Joint Committee on Statutory Instruments raised concerns about the hike, in particular whether the proposed fees were proportionate.

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LORD CHANCELLOR LIABLE TO COMPENSATE FOR JUDGE’S “GROSS AND OBVIOUS IRREGULARITY”

The Court of Appeal held in a unanimous decision on 10 April 2017 in the case of LL v The Lord Chancellor [2017] EWCA Civ 237 (available here) that a claim can be brought against the Lord Chancellor following a High Court judge’s ‘gross and obvious irregularity’.

Jackson LJ, with whom King and Longmore LJJ agreed, stressed that this decision did not traverse the long-established principle of judicial immunity from suit and should not be considered ‘the thin end of the wedge’ for claims against judges as this case was ‘unusual’ and ‘exceptional’.

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AEROTOXIC SYNDROME NOT A PROPER ISSUE TO BE EXAMINED IN THE INQUEST INTO THE DEATH OF BRITISH AIRWAYS CO-PILOT

The inquest into the death of British Airways co-pilot Richard Westgate commenced on 6 April 2017 at the Salisbury Coroner’s Court.

WHAT IS AEROTOXIC SYNDROME

“Aereotoxic syndrome” is the term given to the illness caused by exposure to contaminated air in jet aircraft. The condition has not been recognised by medicine and claims of health effects were found to be unsubstantiated by the House of Lords Science and Technology Committee (The report can be found here.). Cabin air contamination is said to occur in the following way.

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CASE SUMMARY: THE SUPREME COURT CLARIFIES THE MEANING OF “REGULARLY”

Judgement was handed down in Isle of Wight Council v Platt [2017] UKSC 28 (available here). The Supreme Court provided guidance on what ‘failed to attend regularly’ meant in the context of the offence contrary to section 444(1) of the Education Act 1996.

THE FACTS

On 30 January 2015, Mr Platt, the father of a child, (‘Mary’), sent a letter to the school attended by the child requesting Mary to be absent during term time. This was for the period between 12 April and 21 April 2015. On 9 February 2015, the head teacher refused the request. Coincidentally, Mary’s mother, who had been separated from Mr Platt, had also taken Mary on holiday in February 2015, which had not been authorised by the school either.

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GLOBAL V AABAR: THE COURT OF APPEAL STATE THAT CONTRACTUAL NEGOTIATIONS SHOULD BE CLEAR AND UNEQUIVOCAL

In the recent case of Global Asset Capital Inc and another v Aabar Block S.A.R.L and others [2017] EWCA Civ 37, the Court of Appeal held that the High Court was wrong to find that following a ‘subject to contract’ offer letter, a contract was concluded during a telephone call which was inconsistent with subsequent communications.

BACKGROUND:

For the purposes of the appeal the following version of events was accepted. On 23 April 2015, the claimants sent a letter marked ‘without prejudice – subject to contract’ wherein they proposed to pay €250 million for certain rights. On 5 May 2015, the second claimant was informed by the second defendant’s CEO that a board meeting was due on 6 May 2015 where the letter would be considered. On 6 May 2015, the CEO of the second defendant telephoned the second claimant. The claimants case was, that during the call a contract had been agreed subject to two conditions.

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RULE 16.3(7) – STATEMENT OF UNDER VALUE TO BE INCLUDED IN THE CLAIM FORM?

Sir David Eady J delivered a judgment on 30 March in the case of Mohamed Ali Harrath v Stand for Peace Limited and Samuel Westrop [2017] EWHC 653 (QB) (available here) in which he held that a claimant is entitled to recover damages that exceed the statement of value included in the claim form.

The first defendant’s website described the claimant as a “convicted terrorist”, per paragraph 3 of Eady J’s judgment, those words were “plainly seriously defamatory to the claimant”. At paragraph 6, Eady J held that there “simply was no evidence to support the allegation of terrorism”.

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THE AIR ACCIDENTS INVESTIGATION BRANCH PUBLISHES REPORT ON THE SHOREHAM AIR DISASTER

The Air Accidents Investigation Branch published its report into the accident that occurred in Shoreham on 22 August 2015. The sole purpose of the investigation and the report is the prevention of accident and not apportioning blame. This is a brief summary of the key findings as set out in the report.

The normal technique for this manoeuvre was for the aircraft to enter it at 350 KIAS (Knots indicated air speed). In fact, the Hawker entered its ascent at 310 KIAS. The aircraft’s speed was varied and there was not full thrust as the aircraft was in the ascending trajectory of the manoeuvre. There is no evidence of any pre-existing mechanical defect that would have prevented the engine from responding to the pilot’s throttle inputs.

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