When David Green QC took over from Richard Alderman as director of the Serious Fraud Office (SFO) in April this year, he inherited an organisation in crisis. Still reeling from budget cuts and speculation over its future in 2011, the SFO was fast heading for an embarrassing defeat in one of its most highly publicised cases – its criminal investigation into Vincent Tchenguiz, a high-profile businessman and one of several individuals arrested in a blaze of publicity in March last year in relation to the collapse of Kaupthing Bank hf. Continue reading “The SFO: a new director, a new beginning?”
The importance of assessing the potential regulatory risk arising from legal proceedings: lessons learned from the Anthony Verrier Decision Notice
On 16 May 2012, the Financial Services Authority (FSA) announced that it had decided to ban Anthony Verrier, a senior executive at BGC Brokers LP (BGC), from performing a controlled function in the financial services industry. The FSA banned Mr Verrier because it believes that he is not a fit and proper person due to concerns over his honesty, integrity and reputation. Mr Verrier is appealing the FSA’s decision to the Upper Tribunal. Continue reading “The importance of assessing the potential regulatory risk arising from legal proceedings: lessons learned from the Anthony Verrier Decision Notice”
Site closure and decommissioning of industrial plants
As the prolonged downturn in the Eurozone drags on, there continues to be a steady stream of site closures and rationalisation of manufacturing plants around the EU including in the UK. Many businesses are looking closely at their plants across the world for cost savings and some of those facilities will inevitably close. This article examines the key environmental factors to consider during the decommissioning and site closure process and draws on the practical experience of the authors, who have advised on a number of UK site closures, varying from a light manufacturing plant through to large chemical complexes and power stations. Continue reading “Site closure and decommissioning of industrial plants”
Endeavours covenants
Many contract negotiations reach a crisis point at which one party requires a commitment to do something the other will not give. Endeavours covenants are frequently adopted as a compromise, being seen as representing something less than an absolute commitment but also imposing an obligation to try to achieve the stated outcome, the level of effort required depending on whether the covenant is to undertake ‘best’ or only ‘reasonable’ endeavours.
Two recent decisions will require negotiators to approach endeavours clauses with increased caution: the clause may prove useless because it is void for uncertainty; or it may unexpectedly impose what amounts to an absolute obligation, in all likelihood frustrating one of the parties and giving the other an unexpected bonus. Continue reading “Endeavours covenants”
Rise of social media in India
Social media has enthused the psyche of Indians and encouraged them to become a part of the virtual community. It has revolutionised the way we communicate and is now an indispensable part of our lives, empowering us to interact in real time across borders and time zones and connect on a scale previously unimaginable. Social media is also playing a crucial role in the cross-cultural unification of the country and maintaining unique and dynamic harmony, as it has the tendency of rapidly popularising an issue and mass mobilising people towards a common cause. However, at the same time, it is also capable of creating havoc in terms of incitement of religious violence or proliferation of pornographic material etc. Therefore, in a large democracy such as India, where freedom of speech and voicing of opinions are zealously protected, social media requires special handling. This article provides an insight into the landscape of social media use in India and the emerging anti-social behavioural issues that are making news.
Deferred Prosecution Agreements and a tough new director at the SFO: is a rush to the negotiation table in order?
After many months promoting the introduction of Deferred Prosecution Agreements (DPAs) in the UK, the solicitor general, Edward Garnier QC, is close to securing his goal. With strong government backing, the support of the incoming director of the Serious Fraud Office (SFO), and, according to Mr Garnier, of the city firms and non-governmental organisations he has consulted, he is confident they will be introduced in the UK by the end of the year, following a consultation period that ends in August.
Recoveries litigation in the new regulated environment
Over the past five years lenders have suffered staggering losses on residential mortgage lending. Many lenders have sought to mitigate these losses by taking legal action against third parties – often valuers and solicitors – alleging that the losses (at least in part) were caused by the negligence of these professionals. In more extreme cases of loss, lenders have taken action against fraudulent borrowers involving injunctions and recoveries litigation extending into foreign jurisdictions.
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The law of nuisance: the Court of Appeal revisits longstanding principles
Earlier this year, the Court of Appeal handed down two important judgments on the environmental impacts of commercial enterprises on their neighbours. The first case, Coventry (t/a RDC Promotions) & anor v Lawrence & ors [2012], concerned noise from a racing circuit and the second case, Barr & ors v Biffa Waste Services Ltd [2012], concerned odours from a landfill.
Continue reading “The law of nuisance: the Court of Appeal revisits longstanding principles”
Keep the faith
Contractual parties are increasingly agreeing to commit themselves to a mutual duty of ‘good faith’, despite the apparent lack of certainty as to the meaning of such a duty. The High Court recently demonstrated the significance of such clauses and showed that a duty of good faith is a meaningful obligation with the potential for a considerably wider application than either party might have envisaged. In Compass Group and Ireland Ltd (t/a Medirest) v Mid Essex Hospital Services NHS Trust [2012], Mr Justice Cranford indicated that a duty of good faith was a material obligation, and breaching that obligation could give rise to a repudiatory breach of the contract. The effect of this decision may be to make parties think more carefully about whether they intend to owe one another a duty of good faith for the contractual term.
Protecting your intellectual property in Scotland
There is often a perception that IP disputes with any UK element need to be litigated in London, whether in the High Court or in the revamped Patents County Court. While this perception is understandable, it is not correct, as there are, in fact, many cases where there may be a Scottish option for dealing with IP disputes, which can offer commercial and tactical advantages to IP and brand owners.
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Commercially sensitive information and the nincompoop’s law
‘Freedom of Information Act. Three harmless words. I look at those words as I write them, and feel like shaking my head ‘til it drops off. You idiot. You naïve, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.’
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PIP breast implants: lessons for all?
The PIP breast implant affair will be a case study in the product liability context for many years to come. Two significant reports on the matter have been published recently. Sarah Croft of Shook, Hardy & Bacon International LLP considers the conclusions drawn and possible ramifications for future litigation and the regulation of medical devices.