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The Future Lawyer Weekly Update – w/c 9th April 2018

The Future Lawyer Weekly Update – w/c 9th April 2018

Your round-up of the stories that you should discuss at interview this week:

Litigation/Finance

Reported by Andrew MacDonald

Herbert Smith Freehills faces legal action

The founders of United Petroleum say Herbert Smith Freehills (HSF) ‘failed entirely’ by abandoning the Australian petrol company’s $500m initial public offering (IPO). They are suing the international law firm as well as former United chairman Martin Hudson for more than $27m in damages.

Initially mediation was ordered before the Supreme Court of Victoria. This was the third time the parties attempted mediation.

Much was at stake. United’s barrister, Michael Wyles QC, said there was a ‘substantial, not merely speculative’ prospect of $500 million being raised as a result of the float.

United argues that investment banks such as Morgan Stanley and Credit Suisse were ‘ready to go’ and release the draft prospectus to analysts on October 24, 2016. However, the IPO failed because the senior legal advisor at HSF and then United chairman Martin Hudson allegedly ‘gave up’ on the IPO the day before.

United contacted HSF back in 2015 regarding a possible IPO. A deadline was given of Christmas 2016 with Morgan Stanley and Credit Suisse taking the roles of joint lead managers. Throughout the night of Saturday 22nd October 2016, a draft prospectus of the offering was circulated among those involved but the financial section remained a ‘work in progress.’

By the following Sunday a financial section was finally circulated but contained multiple errors and drafting issues. Consequentially, United petroleum chairman Martin Hudson told the co-founders that the draft IPO prospectus would not be proceeded with.

United’s co-founders asked the involved non-executive directors to resign the following Monday after they refused to sign off on the draft prospectus. HSF was told ‘not to do any work on any matters.’

United claims the HSF lawyer who was heading the float breached his duties by acting on the instructions of the United chairman to cancel the IPO, rather than in the co-founders’ best interests.

HSF is counter-suing and claims United owes the law firm approximately $600,000 in unpaid legal fees.

Read more at The Australian and the Financial Review.

Housing

Reported by Anna-Mei Harvey

First digital mortgage deed signed last week

The document was signed for a property in Rotherhithe in South-East London and lodged by Coventry Building Society and Enact Conveyancing.

The document was signed via the ‘Sign Your Mortgage Deed’ service. This has previously been used by 1.9million account holders to perform more than 5 million secure, online transactions. The service allows borrowers to sign their deed online after having their identity(ies) confirmed by the Gov.uk Verify service.

The rationale for this is to speed up the process for borrowers by avoiding use of the postal service. In the future it could also eliminate the need for a witness to be physically present. Ultimately, if the process becomes digitalised, the need for witnessing such documents could be removed all together.

What about the legal position? Section 52(1) of the Law of Property Act 1925 provides that any legal estate or interest in land is to be conveyed or created by deed. Traditionally this has been in hard copy with a wet ink signature.

E-documents produced using this service however, shall be considered deeds if they comply with the rules (See S.91(5) Land Registration Act 2002 and The Land Registration [Electronic Conveyancing] Rules 2008).

Though they are to initially be used specifically for re-mortgaging, Peter Frost, chief operating officer at Coventry Building Society said he was “excited about the potential for it to be extended to purchases in the future.”

Visit The Telegraph and Law Gazette for more.

For further information, see the Government website and read the relevant legislation, here and here.

Construction

Reported by Jutha Cheewat

Adjudication enforcement: recent judgments and their implications

Since the Housing Grants Construction and Regeneration Act 1996, many principles in regard to adjudicator’s decisions have been established. This includes the court’s strict criteria when granting a staying order under “special circumstances.”

The Technology & Construction Court has a fast track scheme that accommodates a party to reach a quicker decision by an adjudicator with the support of enforcement in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358.

Prior to the recent developments, a decision can be refused only if it was obtained without jurisdiction or if it was in breach of natural justice. In addition, under the Civil Procedure Rules (CPR Rule 83.7) the enforcement can be stayed under “special circumstances” identified by the court in Wimbledon v Vago [2005] EWHC 1086. One of the examples is when a losing party becomes insolvent.

Recent decisions showed the court’s willingness to expand the scope.

For example, in Equitix SI CHP (Wrexham) Ltd v Bester Generacion UK Ltd [2018] EWHC 177 (TCC), Justice Coulson stated that the criteria made in Wimbledon v Vago was not exhaustive. He pointed out that the principles “do not, for example, deal with the position where allegations of fraud are made, particularly in circumstances where those might affect the financial standing of the Referring Party [who is almost always the party opposing the stay].”

This means that parties may have more options when it comes to refusing decisions made by an adjudicator.

Read more here.

Criminal Law

Reported by Paige Waters

Is the criminal justice system screaming out for change?

There was a nine-week trial in which two rugby stars were acquitted on the charge of rape. The decision by the jury was unanimous.

A 19-year-old woman accused Paddy Jackson, 26, and Stuart Olding, 25, of raping her at a party which was held in Jackson’s home in Belfast. The victim was subjected to eight days of cross-examination from multiple barristers. This was then followed by the verdict of not guilty, despite the case appearing to have outstanding evidence. This caused fury amongst the public.

During the trial, WhatsApp messages belonging to the defendants were revealed. These messages were strongly degrading of women, with the defendants referring to themselves as “shaggers”, and “pumping a bird”, along with the terms “Belfast sluts” and “spit-roasting.” This raises the question as to whether the defendants have any respect towards women. Although Jackson has since apologised for the messages, this has not impacted the public’s anger as the trial caused massive fury throughout society.

Many took to social media, developing the hashtag “I believe her” which began trending. Furthermore, Facebook pages were launched with many demanding there be a change to the criminal justice system.

Many took to the Facebook page to share their own experiences of sexual violence. The creator stated that the page “is to provide an outlet for people hurt by sexual violence, a place for them to offload, to get support, rather than a response to the trial itself.”

The creator of the page believes this has empowered many women to be able to open up.

The AASVI has screamed for changes to be made to the criminal justice system and for consent education following the trial. It is in favour of the recent law passed in Iceland, which demands for the defendant to prove consent was given, rather than for the claimant to prove that it was not.

Read more here.

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