The Legal 500

On 10 February 2010 a Statement of Changes to the Immigration Rules was laid before Parliament which is due to come into force on 3 March 2010.

Dilapidations in commercial premises – ten points to consider

Most landlords and their solicitors try to resist the impulse to be helpful, however, in these recessionary times when landlords are concerned to avoid empty space, there may be the temptation to take shortcuts to ensure a letting proceeds. In circumstances where it is intended that Part II of the Landlord and Tenant Act 1954 (the 1954 Act) should not apply to the tenancy, i.e. that the tenant should not have the benefit of security of tenure, then occupation before the lease has been finalised (and the appropriate ‘contracting-out’ steps taken) is a potentially dangerous step and needs to be taken only when the landlord has fully comprehended the potential consequences.

The Planning Act 2008 (the Act) introduces a new regime designed to speed up the planning and, in turn, the delivery of infrastructure projects of national significance. For transport projects, it is one of the most important pieces of legislation in recent years. The new procedure will have to be used for any third runway at Heathrow, amongst other high-profile projects.

The rising divorce rate and some well-publicised settlements running into tens of millions of pounds have focused attention on a growing issue in divorce cases: just how far can spouses go to obtain information about their partner’s financial affairs?

Uncertainty about legal outcomes adds to the temptation for well-heeled spouses to disregard their obligation to provide full and frank disclosure in divorce and ancillary proceedings. Meanwhile, the ease of copying electronic data from a partner’s laptop or accessing online bank accounts is prompting some spouses to actively hunt evidence that their estranged partner has the wherewithal to fund a sizeable settlement.

be aware

Yet those contemplating separation and divorce must tread a careful line. The boundary between harmless duplication of confidential financial information belonging to an estranged spouse and wrongful interference with their property is not very elastic. As battles intensify over assets, courts are starting to provide firmer indications of what is – and what is not – acceptable in the search for convincing evidence.

If you want your panel solicitor to‘get off the fence’, need to know when a cause of action accrues or wondered whether the judiciary live in the 21st century, the following cases from 2009 provide some really useful guidance. With professional negligence claims on the increase, whether you are giving or receiving legal advice, the cases discussed below highlight practical points for all legal advisers to be aware of.

there is no legal definition of the term ‘twilight zone’ (perhaps derived from the cult TV series, the writer would like to think), which is now widely used to describe a period of trading when a company has, or is predicted to have, insufficient cash to pay its debts as they fall due. This might be an immediate cash-flow crisis or the problem might be anticipated many months ahead.

The twilight zone continues until the company is put back on an even keel, meaning a positive cash flow and balance sheet, usually achieved by restructuring, rescue and turnaround techniques, often involving refinancing. Alternatively, the business or shares of the company might be sold. A company might come out of the twilight zone, only to dip back into it from time to time. Unfortunately, many companies in the twilight zone are incapable of rescue and have to be put into administration or liquidation. The date of the commencement of the formal insolvency procedure then triggers the vulnerable period in English law, governing claw backs in relation to preferences, transactions at undervalue, floating charges and other matters, which come under the scrutiny of the liquidator and the creditors in a winding up.

Although many definitions exist, broadly speaking ‘cloud computing’ is the outsourcing of specified IT functions via the internet (the cloud) to provide or receive services that would otherwise only be available if the end user had installed the appropriate hardware and/or software on desktops, or on local networks controlled by that organisation itself. Such services may include the use of software over the internet or remote storage of business data by a third-party provider. One benefit of this is that businesses can structure payment for these services differently (for example pay-as-you-go or on a subscription basis), rather than having to pay large sunk costs for long-term software licences, and the purchase and installation of IT infrastructure necessary to support the services locally.

On 3 December 2009, following an action brought by the European Commission under article 226 of the EC Treaty (now article 258 of the Treaty on the Functioning of the EU) the European Court of Justice (ECJ) confirmed that Germany had failed to comply with its obligations under the European regulatory framework for telecommunications (the Common Regulatory Framework (CRF)). The ECJ’s judgment in European Commission v Germany [2009] confirms that Germany acted unlawfully by adopting a national law excluding ‘new markets’ from regulation – so called ‘regulatory holidays’.

The case is a victory for the Commission, and Commissioner Reding who will be moving to take charge of the new Justice, Fundamental Rights and Citizenship portfolio, but the updated regulatory package may increase the scope for similar provisions in the future.

On Friday 27 November 2009 the new European Commission, which will begin its mandate early in 2010, was announced by Commission President José Barroso. This announcement followed a week after the appointment of Herman Van Rompuy and Catherine Ashton as the President of the European Council and the High Representative of the Union for Foreign Affairs and Security Policy respectively, the two new roles created by the Lisbon Treaty, which entered into force on 1 December 2009.