Football agent successfully sues for loss of chance

The Court of Appeal has reversed a decision dismissing a claim against the defendant football agents for want of proof of causation. The claimant, also a football agent, had issued proceedings against the defendants for, among other things, inducing a professional football player to breach his oral contract with the claimant.

The claimant alleged that the defendants had excluded him from a transfer deal that he had arranged for the player and had deprived the claimant from the opportunity to receive a transfer fee. The court held that, properly analysed, the claim was for loss of a chance. The claimant was entitled to an award of damages against the defendants for loss of a chance to earn a fee under a written agency agreement with the player. The court decided not to interfere with the judge’s finding that, on the facts, the player would not have entered into a written contract with the claimant at the end of the transfer process. In the circumstances, the effect of the loss of chance approach was that the chance of the player signing a contract with the claimant fell to be evaluated as no higher than 50%.

The court remitted the matter to the judge for the purpose of assessing the relevant percentage likelihood. It also held that a settlement which the claimant had reached with the player relating to the player’s breach of contract did not prevent the claimant from pursuing the defendants. Although the settlement agreement had been drafted in wide terms, it did not make “absolutely clear” that in settling with the player, the claimant was foregoing his right to recover his remaining loss.

The decision provides a good example of the application of the complex loss of a chance principle. It would appear that at first instance issues of causation and assessment were confused. The finding that the player would not have entered into a written contract with the claimant was only relevant to the assessment of damages and not to the issue of liability. The practical significance of this being that although ultimately the claimant may only receive nominal damages from the defendants’ tort, he is unlikely to be liable for their costs, which in this case may be substantial. (McGill v The Sports and Entertainment Media Group and others [2016] EWCA Civ 1063.)

Source: Practical Law.

EPC Amendment (No. 2) Regulations 2016 make minor amendments

The Energy Performance of Buildings (England and Wales) (Amendment) (No. 2) Regulations 2016 (SI 2016/888) were made on 7 September 2016 and come into force on 1 October 2016. The Regulations make minor changes to the energy performance certificate (EPC) regime in England and Wales by amending the principal regulations, the Energy Performance of Buildings (England and Wales) Regulations 2012 (SI 2012/3118), to:

  • Update certain references overlooked in earlier amendments.
  • Allow disclosure, from the EPC register, of data used to prepare EPCs to specified persons (notably relating to the Green Deal) to assist government energy efficiency policy.
  • Amend the lists of data items from the register that may be published on a website.

The Regulations follow the Energy Performance of Buildings (England and Wales) (Amendment) Regulations 2016 (SI 2016/284), made in March 2016, which included substantive changes to the EPC regime.

Source: Practical Law

The Home Loss Payments Regulations 2016

The Home Loss Payments (Prescribed Amounts) (England) Regulations 2016 (SI 2016/789) have been made and come into force on 1 October 2016

The Regulations increase the amount of compensation payable in England under the Land Compensation Act 1973 (LCA 1973) to a person whose home is acquired by compulsory purchase. They revoke the Home Loss Payments (Prescribed Amounts) (England) Regulations 2015 (SI 2015/1514) in relation to any displacement occurring on or after 1 October 2016.

Compensation is payable to a person who is displaced from a dwelling by a compulsory purchase order (section 29, Land Compensation Act 1973 (LCA 1973)). This type of compensation is known as a “home loss payment”. The LCA 1973 provides two alternatives for establishing the amount of a home loss payment:

The home loss payment for someone who occupies a dwelling under an “owner’s interest” is calculated in accordance with section 30(1) of the LCA 1973. The payment will be 10% of the market value of the interest, but subject to both maximum and minimum limits. An “owner’s interest” is effectively an interest in the freehold of the dwelling, or in a lease with more than three years left to run.

If the home loss payment does not fall within section 30(1) of the LCA 1973, then the compensation payable will be the amount specified in section 30(2).

The Home Loss Payments (Prescribed Amounts) (England) Regulations 2016 (SI 2016/789) (Regulations) have been made and come into force in England on 1 October 2016. The Regulations revoke the Home Loss Payments (Prescribed Amounts) (England) Regulations 2015 (SI 2015/1514) in relation to any displacement occurring on or after 1 October 2016.

Under regulation 2(2) of the Regulations:

  • The maximum home loss payment under section 30(1) of the LCA 1973 is increased from £53,000 to £58,000.
  • The minimum home loss payment under section 30(1) of the LCA 1973 is increased from £5,300 to £5,800.
  • The prescribed amount of home loss payment under section 30(2) of the LCA 1973 is increased from £5,300 to £5,800.

The increases have been calculated by reference to the Office of National Statistics’ mix-adjusted house price index and reflect an increase in line with house price inflation.

Source: Practical Law / Home Loss Payments (Prescribed Amounts) (England) Regulations 2016 (SI 2016/789).

JCT announces new features of 2016 editions

The JCT has revealed some of the changes that will feature in its 2016 edition contracts. As expected, the 2016 edition will incorporate previous updates to the 2011 edition, such as those included in the JCT’s Public Sector Supplement, its CDM amendment sheets and its named specialist update. Other changes include:

  • Altering the payment provisions to reflect fair payment principles and to simplify the payment regime.
  • Catering for the Public Contracts Regulations 2015 (SI 2015/102).
  • Extending Insurance Option C so that it allows alternative solutions to the problem of obtaining existing structure insurance for a contractor.

In terms of ancillary documents, the 2016 editions will provide for a performance bond, a parent company guarantee and for sub-contractors granting third party rights under the Contracts (Rights of Third Parties) Act 1999.

Do you welcome these changes to your own set of bespoke amendments?

If you have any further questions or queries and wish to discuss these changes in more detail, then please contact  Zoe Tranter.

Whether bank discriminated against borrower in seeking possession order (County Court)

The County Court considered whether a lender’s refusal to agree to change a borrower’s mortgage from a repayment mortgage to an interest only mortgage was discriminatory. The borrower claimed that the lender’s blanket policy of not allowing a switch to an interest only mortgage breached the legislation on disability discrimination and human rights. The court dismissed the borrower’s defence in possession proceedings and held that:

Even if it was difficult for the borrower to access the service, it was not reasonable or proportionate for the lender to have allowed the borrower to switch.

Various guidance had been issued to lenders on responsible lending and switching mortgages to interest only. Although the guidance was mainly published after the lender reached its decision, it contained good practice and it was not good practice to lend on an interest only basis except in certain circumstances.

In light of the Court of Appeal’s decision in McDonald v McDonald [2014] EWCA Civ 1049 (on whether there is a defence under Article 8 of the European Convention on Human Rights for possession claims by a private landlord), the borrower could not rely on Article 8 as a defence.

The court granted an order for possession. However, noting that the Supreme Court had allowed permission to appeal in McDonald v McDonald, the court ordered a stay of the order and an extension of time for filing an appeal by either party until 28 days after the Supreme Court’s judgment. (Southern Pacific Mortgage Ltd v Green [2015] EW Misc B42 (CC).)

Key date: 1 October 2015, the threshold debt needed for creditors’ bankruptcy petitions has been increased

On 1 October 2015, the Insolvency Act 1986 (Amendment) Order 2015 (SI 2015/922) amended section 267(4) of the Insolvency Act 1986. The effect of this is that the threshold debt needed for creditors’ bankruptcy petitions (known as the bankruptcy level) increases significantly from £750 to £5,000.The service of a Statutory Demand and issue of a Bankruptcy Petition is an effective method of recovering rent arrears and other undisputed debts. However, a landlord will now have to wait until the arrears have reached a much higher level before it can pursue a tenant who is an individual in this manner, or use another method to recover rent.

Source: Insolvency Act 1986 (Amendment) Order 2015 (SI 2015/922) and Practical Law

Local authority liable for incorrect local search result (High Court)

We set out below the facts of a case that we found interesting, as discovered via Practical Law.

The facts are:

The High Court has held that a local authority (LA) was liable to a buyer (B) for an incorrect reply in a local authority search result which B relied upon when purchasing a property. The LA failed to disclose that it had been investigating whether part of the property was in fact highway maintainable at public expense. When it was found that part of the property was in fact highway maintainable at public expense the buyer suffered a loss in the value of the property. The LA were liable in tort as local authorities have a duty of care to keep the list of streets which are highways maintainable at the public expense correct and up to date. The LA was also liable for negligent misstatement.

Our comments: We have been instructed on a number of transactions where the search results have played an absolutely crucial role in the due diligence process prior to the acquisition of a site for property development. What this case highlights is that it was only through the court process that the Local Authority were taken to task. Yes the result benefited the buyer, yes, the buyer was awarded damages. But what about the time spent in litigating? How would that impact upon the “bottom line”? We always advise our clients to undertake site visits at regular intervals and update search results if an acquisition takes longer to conclude than first anticipated. Hopefully such scenarios can therefore be avoided in the future. What this case does highlight is that not even a local authority search result is fail proof. Question everything dear reader!

Measures to tackle rogue landlords and evict illegal immigrants

The Department for Communities and Local Government (DCLG) has announced that there will be:

New measures requiring landlords to conduct “right to rent” checks on their tenants’ immigration status before offering a tenancy agreement.

A new criminal offence targeted at unscrupulous landlords and agents who repeatedly fail to conduct “right to rent” checks or fail to take steps to remove illegal immigrants from their properties. Landlords may face a fine, up to five years’ imprisonment and further sanctions under the Proceeds of Crime Act 2002.

Measures in the immigration Bill to enable landlords to evict illegal immigrant tenants more easily by enabling them to end a tenancy when a person’s leave to remain in the UK ends.

The DCLG has also published a consultation on the government’s proposals for tackling rogue landlords. The proposals include blacklisting rogue landlords and letting agents, extending Rent Repayment Orders and introducing civil penalties.

The consultation ends on 27 August 2015 and applies to England only. It will be of particular interest to local authorities, letting agents and tenant groups.

VAT and construction services: guidance on when subsequent building phase is zero-rated (First-tier Tribunal)

The First-tier Tribunal has held that supplies made during the second phase of construction of a university building were made in the course of the enlargement or extension of the building built in phase one and therefore did not quality for VAT zero-rating under item 2 of Group 5 of Schedule 8 to the Value Added Tax Act 1994.

This decision does not break new ground but it is a clear and useful exposition of the principles used to differentiate between the construction of a building, services relating to which are zero-rated for the charitable sector, and the extension or enlargement of a building, services relating to which are standard rated. There are relatively few cases in this field where the taxpayer has argued successfully for zero-rating, and this is not one of them. In this case, the decisive factor appears to have been that the function and operation of the building did not change after construction of phase two; phase two essentially created more of what had been built in phase one, was used in the same way and could not be said to be integral to the development. The taxpayer’s intention (vision) for the development was of little relevance to the VAT analysis. (York University Property Company Ltd v HMRC [2015] UKFTT 225.)