Author: Whitestone Chambers

Annual emissions could be cut by as much as 44% by the end of the decade as a result of the Inflation Reduction Act 2022. Analysis shows that the Inflation Reduction Act would be the most significant climate bill passed by Congress and would double the pace at which the American economy has been decarbonising. 

The Inflation Reduction Act was agreed by Senator Joe Manchin and Senate Majority Leader Chuck Schumer. Regarding the climate aspect of the Bill, President Joe Biden stated that “It addresses the climate crisis and strengthens our energy security, creating jobs manufacturing solar panels, wind turbines, and electric vehicles in America with American workers.” [1] 

Estimations of the climate effect of the Bill were conducted by Energy Innovation, Rhodium Group and the REPEAT Project predicting around a 40% drop in emissions by the end of the decade.  

[2]

The Executive Director of Strategy at Energy Innovation, Anand Gopal, stated that “I was sceptical of it when we started doing the model […] But now I’m convinced that this is a really meaningful action by the United States on climate in this decade.” [2] 

As seen by the graph below, the Bill is only the beginning of tackling Biden’s 2030 climate goal. Contributions by states, cities, companies and the Environment Protection Agency are still necessary to reach these goals. 

[2]

What the Bill does do is boost America’s influence in international climate negotiations, enabling them to encourage other countries to follow in their footsteps and rapidly decarbonise. Gopal stated that, before, the US had “very limited credibility” when it came to international climate negotiations such as the UN climate forums. The passing of the Bill means “that is going to change”. [2] 

The predicted success of the Bill comes from making clean energy cheap, as stated by Jenkins. Biden stated, “It lowers families’ energy costs by hundreds of dollars each year.” Generous subsidies will be made to spur clean electricity production while creating programs to tackle bottlenecks on deploying that electricity, such as America’s inability to build an interconnected and blackout-proof grid. [1] 

The Bill can be divided into two categories: 

1. Policies that will drive greenhouse gas pollution out of the US economy during this decade mainly through a new set of tax credit that will apply to any form of zero-carbon power production. These policies also focus on the most carbon intensive side of the economy, transportation. New electric cars, SUVs, pickups and vans will be subsidised by up to $7,500. 

2. Policies that aim to reduce emissions after 2030 mainly through focusing on the most polluted sector, the industrial sector. Incentives will underwrite new factories, encourage clean-energy manufacturing and the push to net-zero. These policies hope to turn the US into the global leader in the nascent geothermal hydrogen and carbon-removal industries. 

While it is good to recognise that these are all estimates that fail to take into account external factors such as Russia’s invasion of Ukraine, this does not undermine the impact of the Inflation Reduction Act. For example, Rhodium gave a carbon pollution cut estimate by 2030 of between 31% – 44%. Therefore, in the worst-case scenario, there will still be an estimated 31% cut and the US will still have cut a large portion of emissions from the power and transportation sectors. 

In a statement, Biden said “The House should pass [the Bill] as soon as possible and I look forward to signing it into law.” 

[1] https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/07/statement-by-president-biden-on-senate-passage-of-the-inflation-reduction-act/ 

[2] https://www.theatlantic.com/science/archive/2022/08/manchin-climate-bill-carbon-emissions-2030/671049/?utm_source=apple_news 

© 2022 Whitestone Chambers 

What is the Economic Crime (Transparency and Enforcement) Act 2022 (ECTEA)? 

The ECTEA was passed to combat economic crime through introducing transparency around the ownership of overseas legal entities that hold registered title to land or property in the UK. Transparency is achieved through the establishment of a new public Register of Overseas Entities (and their beneficial owners) to be kept at Companies House. The register will publicise who actually owns property and land in the UK. 

We are still waiting for the passing of the secondary legislation required to implement the new procedures. 

How does the ECTEA work? 

The ECTEA applies to any overseas entity: 

1. With title to registered freehold or leasehold property in the UK acquired since 1 January 1999 in England or Wales, or since 8 December 2014 in Scotland. 

2. Wishing to purchase such UK land in any part of the UK. 

3. Intending to dispose of such UK land, or which has disposed of such land since 28 February 2022. 

Overseas entities who come under this new legislation will have six months, from the implementation of the new register, to complete their registration. The start of this six-month transitional period will be determined under the anticipated secondary legislation. 

Once registered, overseas entities will not be required to renew statements in the register on an annual basis. 

Overseas entities will need to do the following information to register: 

• Details of the property involved. 
• Any registrable beneficial owner(s) of the entity or confirmation that there are no registrable beneficial owner(s). A registrable beneficial owner is defined as a person: 
  • Directly or indirectly holding 25% or more of the shares or voting rights of the overseas entity, or 
  • Who can affect or change the composition of the board of directors of the overseas entity, or 
  • Who otherwise has the right to exercise significant influence and control over the overseas entity. 
• In cases where a registrable beneficial owner is a trustee, overseas entities will need to include the identity and location of each beneficiary, settlor or grantor of the trust. Former trustees of a trust are also included. 

Failure to comply with the ECTEA can result in criminal transactions of: 

• Fines up to £2,500 a day. 
• Prison sentences of up to five years for officers of overseas entities. 

Additionally, failure to register before the end of the transitional period can result in the HM Land Registry placing a restriction on titles to land and properties registered to overseas entities. This may include restriction to an overseas entities’ ability to transfer, let or charge their interest. 

Next steps 

The ECTEA legislation can be found here: https://www.legislation.gov.uk/ukpga/2022/10/contents/enacted 

© 2022 Whitestone Chambers 

After long consideration and legal study of the potential fields of legal work available in Saudi Arabia, we envisage significant sustainable development potential in legal consultancy work. This connects to the Saudi Vision 2030 and Neom 9 projects, reflecting the Saudi government’s expenditure of nearly 2.5 trillion Euros. This vision makes our law firm confident of Saudi Market solidarity, and of  the long term strategy which moves away from any market speculation, commodity or geographical impacts. This is due to the strength of Saudi Arabia’s economic platform and strength in the long term.

EU Regulation 261/2004 entitles passengers whose flights are cancelled to compensation unless the cancellations are caused by ‘extraordinary circumstances’.

The Court of Appeal has this week clarified that strikes about pay and conditions not involving external factors, cannot amount to “extraordinary circumstances”.

At Whitestone Chambers we often represent airlines defending claims under EU Regulation 216/2004. Extraordinary circumstances normally include such things as airport closures, hurricanes, storms and air traffic control issues. Extraordinary circumstances are normally external factors outside the airline’s control, not arising in the normal course of operations.

In Civil Aviation Authority v Ryanair DAC, the court held that Ryanair must pay compensation for flights cancelled in 2018 as a result of strike action by the airline’s employees.

The Court drew a distinction between strikes about pay and conditions and a sympathy strike whose aims were wholly unrelated to the strikers’ employer’s activities.

The judge also held that a strike where staff sought to have flights ‘re-routed in response to a terrorist threat would represent “extraordinary circumstances”’. It is not very common for such strikes to happen, which is perhaps why they would be considered extraordinary.

The judge said the possibility of disagreements and even strikes in relation to pay and employment conditions is ‘inherent in running the business of an air carrier and so a strike about pay or employment conditions will not be “extraordinary circumstances” regardless of whether the employees’ demands are seen as reasonable or achievable’. ‘The fact that employees are represented by a trade union will make no difference,’ 

He added: ‘The regulation would not afford passengers the high level of protection intended if an airline could escape paying compensation on the basis that a strike which had caused a cancellation had arisen from an unreasonable demand by or on behalf of its staff.’

We do consider that the decision is rather harsh on low cost airlines who may pay pilots and cabin crew less in order to increase margins. This decision means that airlines are likely to want to avoid any strike action occurring, knowing that the Courts will make them pay for disgruntled customers’ cancelled flights. It will be cheaper to offer more money to employees to avoid strikes. In turn this may result in increased ticket prices. Beware the law of unintended consequences! We predict that this dispute will now progress to the Supreme Court on appeal.

Peter Causton

© 2022 Whitestone Chambers

The Department of Health and Social Care has published a consultation which closes on 24th of April 2022 in relation to fix recoverable costs in lower value clinical negligence claims.

They are proposing a new streamlined process for claims and limits the amount of legal costs that can be recovered for cases up to £25,000.

The reason they are doing this is that the cost of clinical negligence claims has risen and reached £2.2 billion in 2020 to 2021. Legal costs make up 27% of the total cost of clinical negligence despite the number of claims remaining relatively stable. The amounts paid out for legal costs were twice the average amount paid out in damages to claimants for lower value clinical negligence claims last year.

The proposals includes a new process designed to enable the rapid exchange of evidence so that agreement can be reached more quickly on liability and compensation to be awarded. They also propose two resolution stages within the process to include a stock take meeting between the parties and the neutral evaluation by a barrister.

Previously NHSR established a mediation scheme for clinical negligence claims with a panel of mediators. Now early neutral evaluation is proposed for low value claims and a streamlined Pre action process.

Under the proposals, clinical negligence claims will be divided into a light track and a standard track. The objective is to streamline the process to achieve an early resolution of claims. Where liability is not in dispute the claim is to be assigned to the light track. There will be two processes with defined timescales for the tracks including arrangements for sequential exchange of evidence and then two separate stages involving stock take or mandatory neutral evaluation to encourage settlement before proceedings are even issued.

These steps would be mandatory. At the stock take meeting parties would examine the strength of their positions and work towards settlement at or shortly following the meeting. This does sound very much like a joint settlement meeting. If the claim is not settled through the stock take procedure, then the claim will be referred to a barrister for neutral evaluation on the papers.

The idea is that light track cases would take no longer than 20 weeks and if further evidence is required then no longer than 34 weeks. Fixed costs would apply to both tracks allowing £6000 plus 20% of damages for the standard track and £2000 plus 10% of damages for light track cases.

Sanctions would apply if the parties failed to adhere to the time limits and the suggestion is that there will be a 50% cost reduction if the claimant delayed and a 50% uplift to damages if the defendant delays.

There would also be penalties if the claimant did not accept the evaluation recommended on quantum and proceeded with the case, rather like part 36, to incentivise parties to settle.

It is interesting that this proposal is not put forward by the MOJ but rather the Department of Health, emphasising that these proposals are about saving money and redirecting it to the NHS.

It is also interesting that early neutral evaluation will be mandatory if this process is adopted. This is in line with the proposals to make ADR compulsory put forward by the Civil Justice Council. It shows that it is not just mediation but other forms of ADR being put forward. At Whitestone Chambers we have experience in the field of clinical negligence and are likely to be putting ourselves forward to conduct these neutral evaluations as some of our barristers have arbitration experience.

PETER CAUSTON

© Whitestone Chambers 2022

At Whitestone Chambers all barristers are keen proponents of Alternative Dispute Resolution (‘ADR’) and mediation and can attend a mediation as advocate for the parties to put their positions forward strongly in negotiations or can act as mediators in disputes. Whitestone Chambers member Peter Causton, a fully qualified Civil Mediation Council Mediator who mediates civil or workplace disputes.

Last year there were significant developments as the Ministry of Justice moved towards greater compulsion to mediate. At present there is an obligation to consider mediation to resolve disputes but the penalty for unreasonably refusing to mediate is in costs at the end of a case. Several recent cases have emphasised that the Courts do expect parties to try to resolve cases through dispute resolution processes other than Court. The Master of the Rolls has expressed his support for ADR processes in well publicised comments.

At the same time, the jury is still out as to how far the Courts should go in making mediation compulsory. It is unlikely that parties in personal injury cases will be forced to mediate any time soon. In high-cost cases such as TOLATA, inheritance or contentious probate, or boundary disputes though there is a groundswell moving towards forcing litigants to at least consider ADR as part of the process and taking the “A” out of “ADR.”

The Civil Justice Council published a paper suggesting that parties could be compelled to mediate in August 2021, supported by the Master of the Rolls.

The paper sparked further debate about whether forcing people to mediate is a step too far.

In the paper it was suggested that making parties mediate does not breach their human right to a fair trial. It said that:

“ADR can no longer be treated as external, separate or indeed alternative to the court process. For our part, an order that is made requiring participation in ADR should be enforced and parties who fail to attend in breach of such an order should be sanctioned.“

The authors dismiss the argument that parties forced to use ADR will not resolve their dispute.

“Drawing together the strands, this commentary points to a number of potential concerns about the introduction of compulsory ADR. First, there is a risk it might not work, either because the parties are simply intransigent or because they do not know enough about it and are therefore unlikely to engage in the process. Second, at a more fundamental level, there is a concern that pushing more disputes into ADR undermines the value of the adjudicative system, which is the foundation on which the effectiveness any form of ADR ultimately relies.  In our view, these concerns are not decisive.”

They go on to conclude that compulsory mediation/ADR should be considered and that it would be an extremely positive development, particularly when it is low cost, saying that:

“We think that introducing further compulsory elements of ADR will be both legal and potentially an extremely positive development… We would make three specific observations:

1. Where participation in ADR occasions no expense of time or money by the parties (as with answering questions in an online process as to a party’s willingness to compromise) it is very unlikely that the compulsory nature of the system will be controversial – as long as the ADR is otherwise useful and potentially productive.
2. Judicial involvement in ENE, FDR and DRH hearings is proving highly effective and these are of course available free to the parties. Again, as long as those procedures seem appropriate for the particular type of case being considered and can be resourced within the court system, we cannot see that compulsion in an even wider range of cases will be unacceptable.
3. We think that as mediation becomes better regulated, more familiar and continues to be made available in shorter, cheaper formats we see no reason for compulsion not be considered in this context also. The free or low-cost introductory stage seems the least likely to be controversial.
4. Above all, as long as all of these techniques leave the parties free to return to the court if they wish to seek adjudicative justice (as at present they do) then we think that the greater use of compulsion is justified and should be considered”.

The report suggested that the starting point should be forms of ADR which are free or low cost.

It was also suggested that the test of unreasonable refusal to mediate established in the seminal Halsey case could be revisited or tightened up.

This was followed by the MOJ launching a Call for Evidence on Dispute Resolution from all interested parties about mandatory mediation. The Lord Chancellor, Dominic Raab also made comments supporting increased mediation in the family Courts and a free £500 mediation voucher scheme in family cases was extended.

They said that the Call for evidence is “the first step to understanding the current dispute resolution landscape, identifying what works well, what can be improved and to put this into practice. It is our ambition to promote non-adversarial dispute resolution mechanisms, so that resolving disagreements, proactively and constructively, becomes the norm.  We are keen to support people to help them get the most effective outcome and ensure they can access the most appropriate form of resolution, which may not be court.”

The outcome of the consultation is eagerly awaited in Spring 2022. It is a safe bet that there will be an increase in mandatory referral to mediation or ADR processes or an increase in judicial ENE in certain cases or a pilot of such systems. At Whitestone Chambers we are ready to embrace any changes that are introduced.

Peter Causton © 2022 Whitestone Chambers

Courts have recently decided to restrict Covid-19 as an acceptable reason for procedural failings where lawyers and law firms have failed to take reasonable steps to mitigate their shortcomings.

For example, in Day v Womble Bond Dickinson (UK) LLP [2021] EWHC 3236 (QB), the Claimant’s solicitors claimed that as a result of Covid-19, staff having been furloughed and many having been made redundant led to an increase in workload. This meant that the Claimant breached a court order by not applying to amend his Particulars of Claim by the required time (7 May 2020), and then applied for relief from sanctions and a time extension by application dated 4 September 2020.

While Deputy Master Toogood sympathised with the solicitor’s position, it was the firm’s responsibility to ensure there was adequate remaining staff to cover the work that needed to be done.

Moreover, the near 4-month delay was inexcusable and unreasonable especially as the Deputy Master noted that the Claimant’s solicitors pursued an application to the case to the Supreme Court – expressing that they were still able to work effectively. It was this lack of urgency that distinguished Day from Stanley v London Borough of Tower Hamlets [2020] EWHC 1622.

The Claimant’s solicitor contracting Covid-19 in early April 2020 was not held as a reasonable excuse for missing the deadline and delaying for 4 months.

Stage 3 of the Denton test from Denton & Ors v TH White Ltd & Ors [2014] 1 WLR 3926 was also considered: evaluate all circumstances of the case so the application is dealt with fairly. In this case, the Claimant failed to particularise his loss in the amended pleading therefore, over 9 years from the alleged negligence, the Defendant still did not know what case it had to meet. In all the circumstances Deputy Master refused the Claimant’s relief from sanctions and dismissed the claim.

The decision made by Deputy Master Toogood is in line with an earlier case during the pandemic: Boxwood Leisure Ltd v Gleeson Construction Services [2021] EWHC 947 (TCC). Here the Claimant’s solicitor made a diary error partly caused by remote working. Nevertheless, O-Farrell J held that it was still the solicitors’ responsibility to ensure deadlines were met despite the error.

Through these pandemic-related cases, it is clear that the courts have begun to harden their attitude towards procedural failures as a result of the pandemic which will most likely expose cases of solicitor negligence claims.

© 2022 Miss Mina Heung Whitestone Chambers.

Whitestone Aviation note Manchester before Heathrow or Gatwick?

In a new partnership with Fulcrum BioEnergy, supported by the UK Business Secretary Kwasi Kwarteng, Manchester Airport is set to become the UK’s first airport to have a direct supply of sustainable aviation fuel (SAF) with hopes that – by 2026 – 10% of the fuel being used for flights from Manchester will be sustainable. [1]

Fulcrum BioEnergy is a pioneer in making low-carbon and low-cost transportation fuels from household garbage and commercial waste which would have been in the landfill or incinerated otherwise.

The Memorandum of Understanding was signed between Fulcrum and Manchester Airports Groups (MAG) – the owner of Manchester Airport, London Stansted, and East Midlands. Neil Robinson, Manchester Airport Group CSR and Airspace Change Directors said: “The introduction of Sustainable Aviation Fuel is testament to the innovation we have seen, and the collaboration between airports, airlines, the Government and suppliers like Fulcrum to achieve real progress towards our goal of Net Zero for UK aviation by 2050.” [1]

Additionally, the Managing Director of Fulcrum BioEnergy, Jeff Ovens, stated: “Our partnership with MAG as an airport operator will bridge airlines and fuel suppliers and make SAF accessible and more widespread within the sector. This collaboration will also support our ambition to cementing the North West as a centre for excellence for SAF in the UK, driving forward the Prime Minister’s 10 point plan for an industrial revolution.” [2]

Fulcrum is set to develop and produce SAF at Stanlow, Cheshire’s new waste to fuels biorefinery. The SAF will then be delivered directly from Stanlow to Manchester Airport via a pipeline. This new biorefinery will be called Fulcrum NorthPoint.

100 million litres of SAF is set to be produced by Fulcrum NorthPoint per year. This can be blended 50/50 with traditional jet fuel and can be used without having to modify the aircraft engines. [2]

Aircrafts using this fuel will have 70% less Carbon footprint. [2]

The SAF partnership is part of a project to support a sustainable recovery from the pandemic to promote green skills, said to generate 1,520 jobs across Manchester as well as 6,500 jobs across the UK. Kwarteng has stated, “This partnership is a huge leap forward for the long-term competitiveness of Britain’s aerospace sector, demonstrating how, by going green, industry can create jobs and help level up across the UK.” [2]

£180 million of support is backing the sustainable aviation fuel project along with an additional £3.9 billion to support low carbon aerospace innovation. [2]

In 2016, MAG became the first airport group in the UK to be certified as carbon neutral. Therefore, their partnership with Fulcrum is another step forward towards a more sustainable future for the airline industry with the potential for other airline groups to follow in MAG’s footsteps.

The CEO of Airlines UK, Tim Alderslade, has said, “SAF is today’s technology and proof positive that UK aviation has a bright and sustainable future ahead of it on our road to net zero carbon. [The announcement of the partnership between MAG and Fulcrum] marks a key milestone, as innovation moves towards reality with airlines soon able to make use of SAF from Manchester Airport, lowering our sector’s environmental impact and showing just what can be done here in the UK.” [1]

© 2021 Whitestone Chambers

[1] https://www.itv.com/news/granada/2021-10-29/manchester-airport-first-in-uk-to-get-direct-sustainable-fuel-supply

[2] https://ukaviation.news/manchester-will-be-first-uk-airport-with-a-sustainable-jet-fuel-supply/

Whitestone I.T. Team here. Did you know that there is a brand spanking new iOS 15 iPhone feature that allows users to customise text size within individual applications on their phones that means users do not have to constantly deal with the unaccommodating text displays in some applications, as users previously had to before the iOS 15 feature?

How to access the new iOS 15 feature?

Many users do not know about this new feature as each individual needs to unlock the text size widget on their phones before use:

First, the user needs to open the Settings application then,

Second, press the Control Center button and find the Text Size option.

Next to the Text Size option, there should be a green plus sign to allow the user to add the widget to their list of active tools.

After that is completed, users are able to go to any application within their phone and open the Control Center by swiping down from the right corner of the screen (or up from the bottom of your iPhone has a Home button). There, users will find the text size icon and see the sliding scale that users can use to change the size of the text within that specific application.

Users should note that if they do not see the Control Center when using the application, they can:

(1) Open the text size icon using the Notification Center instead, or

(2) Enter Settings application again, tap Control Center and make sure the Access within apps toggle switch at the top of the screen is turned on. Once this is turned on users should be able to access the Control Center within an application.

Additional tips to note when using the new iOS 15 feature

• The system-wide text size change only spans between 80% – 135% however, for individual applications, the size can be increased up to 310% its default size.
• Changes occur independently within an individual application and across all applications. For example, if the user had previously set one application’s text size 160% larger than the default setting and then, across all applications, changed the text size 135% larger, the previous application will not match up to the 135% larger change. The user will have to then follow the steps above to change the text size within that individual application.
• Icons and buttons will not change size with the words on the screen.
• Changes may take immediate effect in some applications, but the user might need to reload other applications before seeing a difference.

We here at Whitestone Information Technology team hope that this was a useful article for all you iPhone users. More tips to come.

© 2021 Whitestone Chambers

The future is bright, no shades this time now it’s a headset. Apple’s future Virtual Reality headset, set to appear as early as 2022, claims to have a way to prevent internet bullies and trolls in the “Metaverse”. The potential safety system sees offending avatars having lowered volume and/or getting faded out, with the worst offenders disappearing completely. This rumoured headset is said to possibly be the first step towards an “Apple AR glasses” because of augmented reality’s close relation to virtual reality.

In Apple’s recent patent application appearing on the US Patent & Trademark Office website, the fading out of an avatar could be triggered based on proximity. For example, if one user’s avatar gets too close to another, their avatar will begin to fade away. The appropriate proximity will depend on the trust levels between the users like family and friends who will be allowed to get closer. There will even be a possibility to track family and friends to make it easier to interact when wanted.

Apple did note that in some cases, where getting close to another user is necessary, such as virtual boxing matches, avatars will not fade.

Moreover, each user will have a different view over the interaction between other avatars; getting too close might trigger fading for one user but not for another. Apple has also implemented moderators who will be allowed to view the scene with no adjustment and intervene only when necessary.

An alternative to the fading system is that users might be allowed to leave a shared virtual environment that is uncomfortable using an escape gesture that creates a doorway that is not visible to the other users. This will allow for a quick exit that prevents the user from being followed into another room when they navigate through the different pathways.

Apple does note that its safety system to prevent bullies and trolls is not implemented to suppress freedom of expression. Apple has said that the safety system might include an opt-in and opt-out setting to control how much the system takes care of automatically.

It is early days but it’s reassuring that in a virtual meeting space there will be an “Escape” for users who are uncomfortable or threatened. The feature is also one that will enhance this platform’s sales of VR headsets declaring cyber security built-in.

© 2021 Whitestone Chambers