Competition analysis: In a landmark decision that agreed with the prior opinion of Advocate General Emiliou, the Court of Justice dealt a fatal blow to the expanded application of Article 22 of the EU Merger Regulation (EUMR). The Court of Justice held that the mechanism did not permit Member States to refer proposed acquisitions that fall below the national jurisdictional thresholds to the European Commission (Commission) for review. In the short term, the decision deprives the Commission of a key tool in its ability to police potentially problematic transactions, including so-called ‘killer acquisitions’. For Illumina v Grail, this decision overturns the General Court’s judgment and annuls the Commission’s decision to prohibit its US$7.1bn acquisition. It is significant because it restores certainty as to when the Commission may scrutinise deals that are beyond the scope of the EUMR and Member State merger control thresholds. Written by Timothy McIver, partner at Debevoise & Plimpton LLP.

Commercial analysis: The High Court has levelled serious criticism at the practice of undisclosed commissions given to mortgage brokers. The court held that an undisclosed commission from lender to broker (borrower to broker either was disclosed or wasn’t an issue) was not merely ‘half secret’ commission, but a secret commission or a ‘bribe’ (see para [18]). The result of having an undisclosed commission from lender to broker was to invalidate the mortgage. That is a dramatic outcome which will be of concern to the vast majority of lenders and of tactical value to a large number of litigants. The case also acts as a stark reassertion of the importance of, and the willingness of the court to recognise, fiduciary duties. The lower court had considered, but dismissed a fiduciary duty arising between a borrower and a broker. This case is a reminder that the High Court will recognise them. Written by Steven Barrett, commercial chancery barrister, at Radcliffe Chambers.

Property Disputes analysis: The Court of Appeal dismissed an appeal against the rejection of a high value claim under the tenancy deposit legislation. The appeal turned on whether a certificate containing prescribed information which (1) contained an error, and (2) was unsigned, was nonetheless sufficient to satisfy the statutory requirements within section 213 of the Housing Act 2004 (HA 2004), and the ancillary 2007 Order. The court concluded it was, by application of the Mannai principle and a purposive interpretation of the statutory requirements. This decision will be of great interest to all residential landlord and tenant practitioners. Written by Shomik Datta, barrister at Cornerstone Barristers.

It is assumed for the purposes of this Q&A that the enduring power of attorney (EPA) provided for the attorneys to act jointly and severally, since the appointment of B has taken effect. If B can act as attorney, it may not be of great importance

This Q&A considers a landlord’s ability to deal with their premises following service of a notice under section 13 of the Leasehold Reform, Housing and Urban Development Act 1993 (LRHUDA 1993). Service of a section 13 notice triggers a statutory procedure by which the tenants of flats may collectively acquire the freehold interest in their premises. The tenants’ rights arising under the notice should be protected by the registration of an agreed or unilateral notice against the freehold title (or a class C(iv) land charge if the landlord’s title is unregistered). This is expressly provided for

For the purpose of preventing the title of a transferee of registered land being questioned, a person’s right to exercise an owner’s powers in relation to a registered estate is to be taken to be free from any limitation affecting the validity of the disposition which is not reflected by an entry on the register or imposed by or under Land Registration Act 2002 (LRA 2002) see LRA 2002, s 26. Therefore, a sale by a mortgagee under

When a claimant is successful in claiming compensation as a result of an accident, the National Health Service (NHS) is entitled to recover an amount to cover the cost of the claimant's NHS hospital treatment and any ambulance costs. Recovery of these NHS charges falls to the Compensation Recovery Unit (CRU), which will in turn refund the charges to the relevant hospital or ambulance service. For more information, see Practice Note: Recovery of NHS charges. Where the injured party was involved in

The Practice Note: Payment of legacies sets out that a specific legacy is a gift of a particular property forming part of the testator’s estate. As set out in the commentary: To a debtor: Williams on Wills [30.10]: ‘[The] general principle [is that] a legatee is not entitled to receive out of the testator's estate any benefit without bringing into account money owing by him to the testator. This is in the nature of a right of set-off (see Cherry v Boultbee), and, as prima facie only money can be set off against money, the principle applies only to money

Distributions from a discretionary Will trust If settled property is distributed to beneficiaries from a discretionary Will trust within two years of the date of death on appropriate terms, section 144 of the Inheritance Tax Act 1984 (IHTA 1984) confers inheritance tax (IHT) relief so that the relevant property regime will not apply. This means that: • distributions from the trust within this two-year period are not subject to the exit charge under IHTA 1984, s 65 which would otherwise arise, and • the IHT legislation has effect as if the Will had provided that on the testator’s death the property should be held as it is held after the distribution qualifying for the relief If

Pecuniary legacies A pecuniary legacy is defined in section 55(ix) of the Administration of Estates Act 1925 (AEA 1925). It can include an annuity and other specified types of legacy, but is usually ‘a general direction by a testator for the payment of money’ within the meaning of AEA 1925, s 55(ix). There are very specific statutory and equitable rules regarding the payment of pecuniary legacies. See Practice Note: Payment of legacies. Subject to any provisions contained in the Will, a fund is retained from the deceased’s estate (if solvent) to pay pecuniary legacies in accordance with the statutory order of the application of assets under AEA 1925, s 34 and Sch 1, Pt II. The fund is set aside after the payment of such funeral, testamentary and administration expenses,

We are unable to comment on the availability of principal private residence relief (PPR) as this will depend on all the precise facts and circumstances of the case. PPR relief is a relief from capital gains tax (CGT). It is available on the gain realised on the disposal of a dwelling house or land occupied and enjoyed with the dwelling house, which is or has at any time during the period of ownership been the only or main residence of the owner. The relief is only available on disposals by individuals, trustees and personal representatives (PRs), not on disposals by companies. See Practice Note: CGT—PPR relief

IP analysis: The court held that the claimant’s earlier registered right in a three-dimensional mark was invalid because the evidence presented was insufficient to conclude the mark had acquired distinctiveness through use by the relevant date. Additionally, the court found that four out of six features, listed as essential characteristics of the shape of the device, performed a technical function. Accordingly, the mark was found to consist exclusively of the shape of goods, which is necessary to obtain a technical result. Lastly, the judge assessed whether, if the mark was not held to be invalid, there would have been trade mark infringement, and concluded that there would be no infringement based on either a likelihood of confusion or on the reputation in the claimant's mark, since it was unclear from the evidence how and why the economic behaviours of the relevant consumers might change as a result of the use of the mark by the defendant. Written by Milena Velikova, trade mark attorney at Lee & Thomspon LLP.