This Practice Note examines employment-related claims that either may or must be brought in the High Court or County Court. It gives a very high level overview of the procedure applicable to employment-related claims in the High Court and County Court under the Civil Procedure Rules 1998 (CPR) and signposts further resources available in the Dispute Resolution module which provide a full and comprehensive guide to civil procedure. It also considers: how to deal with overlapping employment tribunal and civil court claims; post-termination restrictions (restrictive covenant) claims; tortious claims (eg personal injury, negligence and stress at work); in which court the claim should be brought; judicial review proceedings; and the time limits for civil court proceedings, extending time and determining the limitation period. It then contains an overview of the main procedural steps in a claim in the civil courts: pre-action steps including the Practice Direction Pre-Action Conduct and Protocols, compliance with pre-action protocols, pre-action behaviour in non-protocol cases, how to start a claim, defendant’s action after particulars of claim are served, case management,

Pensions analysis: The High Court has approved the decision of Brass Trustees Ltd (the trustees) who were the trustees of the Biwater Retirement and Security Scheme (the Scheme), to issue petitions to wind up the Scheme’s sponsoring employers, Biwater Holdings Ltd (BHL) and Biwater International Ltd (together Biwater). In approving the decision of the trustees, the court acknowledged the trustees’ recognition of the momentous consequences of deciding to place Biwater in a liquidation process with a view to the Scheme being wound up, including Biwater staff losing their jobs and the financial impact on Scheme members. The court also recognised that it had a limited role in what it termed a ‘blessing application’, whereby trustees seek approval that the proposed exercise of their powers is lawful and does not infringe their duty to act as ordinary, reasonable and prudent trustees might act. This includes ignoring irrelevant, improper or irrational factors. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square.

The Financial Conduct Authority (FCA) has noted that, on 23 July 2024, Mr Justice Rajah in the High Court of Justice approved the Joint Special Administrators (JSAs) plan for returning client money and custody assets to WealthTek clients. This follows action taken by the FCA last year to protect clients from further harm after discovering serious regulatory and operational issues.

TMT analysis: The High Court has assessed damages in a case involving the termination of a licence to use software. The case illustrates how the court approaches the task of assessing damages in business disputes of this nature. It emphasises the importance of compliance, credible evidence, and clear differentiation of claims, offering practical lessons for lawyers handling similar cases in England and Wales. Written by Helen Hart, senior knowledge lawyer at Lewis Silkin LLP.

TMT analysis: The claimant obtained £60,000 in general damages and £37,041.61 in special damages after suing her former partner for the misuse of private information and the intentional infliction of injury. The defendant had covertly recorded intimate images of the claimant and uploaded them to the internet, apparently for financial gain. The discovery of the images caused the claimant to suffer an emotional breakdown and develop post-traumatic stress disorder (PTSD) to the point that it caused a personality change. In addition to general damages for this distress/injury, the court awarded damages for consequential financial loss, including loss flowing from her immediate termination of the relationship on discovery of the conduct (including temporary accommodation costs, an aborted holiday and money spent on furniture for the couple’s home) as well as past and future healthcare costs and the estimated cost of removing material from the internet. It is believed that this is the first reported occasion in which the court has undertaken a full assessment of damages in a revenge porn/image-based abuse claim. Written by Iain Wilson, managing partner/head of Media and Communications Law at Brett Wilson LLP.

TMT analysis: This case concerned the appropriate remedies in a harassment and libel claim brought following judgment in default. The judge ordered that the defendant should pay £25,000 in respect of the harassment claim and £75,000 (including £10,000 in aggravated damages) in respect of the defamation claim. The judge also provided helpful guidance on the application of quantification of damages principles in the context of internet harassment and defamation cases. Written by Helena Shipman, senior associate at Carter-Ruck.

Construction analysis: This case involved a complex post-termination dispute between the owner of an energy-from-waste plant, Energy Works (Hull) Ltd (EWH), and the contractor engaged to design and build the plant, MW High Tech Projects UK Ltd (M+W), with contribution claims against M+W’s sub-contractor, Outotec (USA) Inc (Outotec). The case gave rise to important questions of principle such as the enforceability of liquidated damages post-termination, a contractor’s right to suspend, causation and the assessment of damages. The Technology and Construction Court (TCC) awarded circa £119m to EWH, which consisted of liquidated damages for delay, costs of completing the works, and defect rectification costs. The court rejected M+W’s extension of time claims, and concluded that M+W did not have any right to suspend works on the basis of the alleged non-compliances in respect of EWH’s procurement and quality management of refuse-derived fuel (RDF) for the plant. In relation to the third-party proceedings, the court allowed one of M+W’s contribution claims against Outotec in respect of defects in the fuel feed system, but awarded circa US$6.8m of outstanding milestone payments and circa US$1m of wrongfully deducted recharges to Outotec (subject to abatement). Written by Mathias Cheung, barrister at Atkin Chambers.

Expert analysis: Should it matter what type of paper a debt is recorded on? Could a foreign sovereign waive its immunity in US courts for a specific debt, but then assert immunity because that debt came to US courts on a document with a particular heading? Those are the questions raised by a pending petition for certiorari in Amaplat Mauritius Ltd v Zimbabwe Mining Development Corp. According to the analysis, with input from Jeff Newton, investment manager and legal counsel at Omni Bridgeway, the DC Circuit’s strict distinction between arbitral awards and foreign judgments rejects implied waiver of immunity and creates a circuit split, potentially undermining creditors’ ability to enforce arbitration awards against sovereigns in US courts.

Planning analysis: The claimant challenged the validity of the London Borough of Newham (James Riley Point) Compulsory Purchase Order 2023, inter alia, on the basis of the rationality and lawfulness of the inspector’s approach to assessing the financial viability of the scheme. When an acquiring authority seeks to use powers under section 226 of the Town and Country Planning Act 1990 (TCPA 1990) for a compulsory purchase order, government guidance is that the decision-maker will need to consider ’the potential financial viability of the scheme’. The case explores how that element of the guidance applies to authority-led schemes, in particular, where the scheme is regarded by the council as a ’loss leader’ (essentially to encourage wider regeneration in the locality), as here. Written by Mark Westmoreland Smith, King’s Counsel at Francis Taylor Building.

Restructuring & Insolvency analysis: This High Court case (which addresses two important issues in UK company law and sanctions regulations) will be of interest to insolvency practitioners, corporate and restructuring lawyers, sanctions lawyers, and businesses and individuals which are affected by sanctions. Firstly, it clarifies the position of sole directors under the Model Articles for private limited companies. The court ruled that a sole director can validly pass board resolutions and bind the company, regardless of whether they have always been the sole director or were previously part of a multi-member board. This interpretation resolves conflicts between Article 7(2) and Article 11(2) of the Model Articles, with the court favouring Article 7(2)'s provisions. Secondly, the case examines the interaction between UK sanctions regulations and the in-court appointment of administrators. The court determined that making an administration application and order does not breach asset-freezing sanctions, even when the company is designated or controlled by a sanctioned person. While an Office of Financial Sanctions Implementation (OFSI) license is typically required for administrators to act, the court retains discretion to make immediate appointments in urgent situations. Written by Joshua Ray and Duncan Henderson, partners at CANDEY, which acted for the First and Second Applicants on this matter.

Restructuring and Insolvency analysis: Jen McCormick of Pinsent Masons LLP looks at this recent High Court case, which says that the requirement for special administrators to carry out a client money reconciliation 'immediately' after being appointed means that they must begin the process immediately, not that they must complete it straight away. The judgment clarifies Regulation 10H of the Investment Bank Special Administration Regulations 2011 and should remind prospective special administrators of the urgency and importance of the client asset reconciliation exercise.

Property analysis: A recent case clarifies that a landlord’s covenant to insure in return for mutual obligations by the tenant is an important indicator of an intention that the tenant will not be liable for insured damage. A covenant to pay insurance rent is not necessary. The tenant will also not be liable in negligence—even in the absence of an express exclusion clause.