ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note focuses on the implications for dispute resolution in the light of temporary rules introduced in the context of coronavirus (COVID-19). This Practice Note aims to assist dispute resolution practitioners seeking to understand changes to civil court processes and procedures during the coronavirus pandemic and the effect those changes and this pandemic may have on their practice and individual matters. It considers the practical implications of coronavirus on a number of key litigation procedures and concepts. This Practice Note should be read in conjunction with Practice Notes: • Coronavirus (COVID-19) civil court specific guidance—dispute resolution [Archived], which gives further guidance in relation to specific courts • SCCO guidance for detailed assessment from 1 August 2020 This Practice Note offers ‘matter-neutral’ guidance on the procedural implications of the coronavirus on dispute resolution in England and Wales. For guidance on some key substantive and ‘matter-specific’ implications of the coronavirus, see: • contract breach and termination—Coronavirus (COVID-19) and contractual obligations—checklist, Practice

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Employment analysis: A tribunal must look at the ‘real basis’ of a payment to determine whether it is made genuinely and exclusively to cover costs (ie for expenses and therefore to be excluded from holiday pay calculations) or is a performance payment (ie part of normal pay and to be included). Despite being a Northern Ireland Supreme Court decision, it was agreed that Agnew should be treated as an authoritative statement on the correct interpretation of section 23 of the Employment Rights Act 1996 (ie that the EAT in Bear Scotland was wrong to conclude that a gap of more than three months between deductions necessarily breaks a series). There is no statutory power for the employer to designate which leave days are to be treated as statutory as opposed to contractual but Agnew does not preclude the contract granting such power in a given case. However, the purported exercise of any such power cannot be relied upon to make the worker’s position in relation to a time point less favourable than it would have been had it not been exercised, according to the EAT.

Dispute Resolution analysis: This case involved an anti-suit injunction against proceedings in France, in light of an exclusive jurisdiction clause in favour of resolution in England. The defendant French company resisted the application on the grounds that such a clause was not binding under French consumer regulations. Noting this, Mr Justice Jacobs nevertheless granted the injunction on the basis that the relevant test was whether the defendant qualified as a consumer under English, not French law. Had their defence been successful, the defendant would have enjoyed greater legal protection under French law, which since 2016 has legislated in favour not just of consumers but any legal entity contracting outside the normal scope of its business. However, the judge found that since the parties’ contract was governed by English law, the validity of its exclusive jurisdiction clause must be determined with regard to English law, and, by extension, the English legal definition of a consumer. Written by Natalie Todd, partner, with assistance from Samuel Peters, paralegal, at Cooke, Young & Keidan LLP.

This week's edition of Life Sciences weekly highlights includes news that the European Commission and the Member State Coordination Group on Health Technology Assessment (HTA CG) have published new and updated guidance on the EU Health Technology Assessment Regulation, and that EFPIA has published its annual WAIT Indicator report highlighting continuing disparities in patient access to innovative medicines across Europe. Also included is news that the Commission has launched calls for evidence on industrial biotechnology and biomanufacturing, to inform the proposed Biotech Act II, and on revisions to the Tobacco Products Directive and Tobacco Advertising Directive, as well as the first quarterly report from the Commission, Heads of Medicines Agencies (HMA) and EMA tracking progress against EU clinical trial targets. Further news includes the MHRA announcing increased life sciences engagement in Wales, as well as two High Court judgments: Novo Nordisk A/S v British Telecommunications Plc concerning website blocking injunctions against sites supplying counterfeit and unlicensed prescription-only medicines (POMs), and a Merck judgment concerning confidentiality restrictions in trade mark and breach of contract litigation, among other stories.

Restructuring & Insolvency analysis: The Court of Appeal dismissed Morley’s appeal, rejecting his claim for damages against Royal Bank of Scotland (RBS) for alleged breach of duty and alleged intimidation and economic duress. Morley alleged RBS had breached its duty of reasonable skill and care in negotiating a consensual resolution where a £75m loan had expired which Morley was unable to repay in full. The Court of Appeal held that RBS owed no such duty and its only duty was the limited duty owed as mortgagee, which had not been breached. Moreover, the Court of Appeal rejected Morley’s claim that he could set aside the agreement which had been reached with RBS on grounds of intimidation and duress as Morley could not prove coercion. The case is a reminder of the difficulty of establishing claims of economic duress in commercial contexts and emphasises the limited scope of a bank’s duty once the lending contract has come to an end. Written by Paul Sinclair QC, barrister, at Fountain Court Chambers.

Pensions analysis: In Philips v National Grid, the High Court (Mr Justice Lavender) allowed an appeal against a decision of the County Court giving summary judgment for the defendant on the basis that the claimant’s claims were out of time. The claimant brought claims in June 2022 for negligence and breach of contract in respect of the defendant’s failure to provide him with an ill-health pension following his dismissal in August 2002 ‘on the grounds of capability due to ill health’, and a continuing failure to obtain a proper medical opinion as to the claimant’s ability to work. The High Court considered that it was arguable that the defendant had a duty to obtain a fresh medical opinion within a reasonable time after a request made by the claimant in 2009. This decision will be of interest to pensions practitioners, but it will also be of interest to those who advise on limitation issues and the potential impact of a continuing breach of duty on time limits. Written by Elizabeth Grace, barrister at Outer Temple Chambers.

The Pensions Regulator (TPR) has published a blogpost calling on trust-based defined contribution (DC) schemes to create a healthy competitive market where schemes drive each other on to do even better for savers. TPR stated that the focus of competition should be on genuine value, taking into account the investment returns and services received for the price paid, and not on cost alone. This follows the Financial Conduct Authority (FCA)'s consultation on a new value for money (VFM) framework for workplace pension savers which was launched on 8 August 2024. TPR believes that the consultation takes a huge step towards creating a pensions market with a 'laser-like' focus on value, which is particularly important as millions of people will largely rely on a DC occupational pension to give them a decent standard of living when they retire. TPR will be working alongside the FCA and the Department for Work and Pensions (DWP) on creating a VFM framework for contract-based schemes. To this effect, the DWP is aiming to introduce equivalent legislation for trust-based DC schemes in the upcoming Pensions Schemes Bill. TPR will continue to work with the industry to ensure that the VFM framework enables effective competition between schemes, drives better value across the whole workplace DC market, and facilitates employer choice, by reducing the number of savers with workplace pensions that deliver poor value.

Construction analysis: The Mayor’s & City of London Court granted summary enforcement of an adjudication decision relating to a termination account in favour of Providence, but stayed that judgment pending the Supreme Court’s upcoming decision on the validity of that termination in Providence Building Services Limited (Respondent) v Hexagon Housing Association Ltd (Appellant) UKSC/2024/0130. The court applied the Wimbledon v Vago principles in reaching its decision and held that, because of the interplay of the adjudication regime and the financial difficulties of the Providence, it would be inexpedient to allow the judgment to be enforced prior to the outcome of the hearing before the Supreme Court. The court took into consideration that, given that permission to appeal had been granted, Hexagon had at least an arguable case before the Supreme Court that Providence had not lawfully terminated the contract, the outcome in favour of Providence in the termination account adjudication is predicated on the validity of its contractual termination (the issue before the Supreme Court), and if Hexagon succeeds in the Supreme Court then Providence would not be in a financial position to repay the judgment.

The Migration Observatory has published commentaries on partner visas, work sponsors, and international students entering the labour market, and has also published a briefing on migrants in the labour market. Its commentary on the new income requirement for partner visas highlights that the new income threshold may lead to family separation and longer settlement routes and that income thresholds affect low earners more, including women and young people, and additionally states that this requirement is stricter than policies in other countries. The commentary on licenced visa sponsors analyses data from March 2014 to December 2023 regarding the number of sponsors, how sponsors have changed over time and the types of employers who are more likely to be sponsors. Its commentary on international students entering the labour market highlights that recent cohorts of international students are more likely to switch to work visas than in the past. The briefing on migrants in the labour market provides data on migrants' labour market integration and the jobs migrants have, including details on migrant employment rates, earnings and contract types.

Arbitration analysis: This case concerned a request for partial annulment of an arbitral award that had recognised the set-off of mutual claims under a civil works contract, based on a contractual clause, in a context where one of the parties had entered judicial reorganization proceedings in Brazil. The Brazilian Superior Court of Justice (STJ) held that arbitral tribunals lack jurisdiction to determine the set-off of pre-petition claims. Even if set-off is contractually provided for and may have occurred before the filing, only the reorganisation court may validate it. While the decision directly limits the role of arbitration in such contexts, the STJ’s reasoning also applies to judicial proceedings outside the insolvency court. Any recognition of set-off involving pre-petition credits must be made within the reorganization forum. The ruling has important implications for parties dealing with financially distressed companies in Brazil, requiring a strategic reassessment of how mutual obligations are structured and how risks are managed in light of potential insolvency. Written by Christian Lopes, partner at VLF Advogados, and Maria Eduarda Boson, associate at VLF Advogados.

Arbitration analysis: In Maxx Engineering, the Singapore High Court ordered the specific performance of an obligation to refer a dispute to mediation which was contained in a tiered dispute resolution clause in the Sub-Contract between the parties. The respondent was thus ordered to submit the dispute to a concurrent mediation process even though the arbitration process was already underway (and no stay had been applied for or granted) and even though the dispute resolution clause expressly stated that a submission to mediation was not a condition precedent to parties’ exercise of their right to refer any dispute to arbitration. This marks the first time an order for specific performance of an obligation to mediate has been made, and gives cause for litigating parties and practitioners alike to reconsider how they go about drafting and navigating the interpretation and performance of a tiered dispute resolution clause when confronted with a dispute. It also signals clearly the stance of the Singapore Courts to promote amicable resolution of disputes, which is similarly reflected in the recently enacted Rules of Court 2021. Written by Ronald JJ Wong, director, and Stuart Peter, associate, at Covenant Chambers LLC.