Construction analysis: The Technology and Construction Court (TCC) dismissed a £19m counterclaim for loss of chance on the basis that causation could not be proven on the balance of probabilities.

Principles of natural justice If an adjudicator breaches the rules of natural justice during the adjudication then the decision may be a nullity if the breach is serious. There are three well-known facets to the principle of natural justice: • no one should be a judge in their own cause • a party should be informed of the allegations against it and be given an opportunity to answer those allegations • a party is entitled to have its case heard by an unbiased and impartial tribunal In practice, a dispute concerning the first of these three facets of natural justice type is extremely unlikely to arise in a construction adjudication. If there were any sign that an adjudicator had to decide on the propriety of their own conduct, the adjudicator would most likely resign. For information on an adjudicator's resignation, see Practice Note: Resignation by the adjudicator. The courts have given guidance as to what is required for a breach of natural justice on a number of occasions. The key Court of Appeal

This Practice Note deals with breach of police bail conditions and failure to surrender to the police station or to court following release on bail from the police station. For information on police bail generally, see Practice Notes: Police bail, Applicable bail period and How to make representations for bail at the police station. Breach of pre-charge bail conditions Where a police officer has reasonable grounds for believing that conditions imposed on pre-charge bail have been breached, they can arrest the suspect without the need for a warrant. However, breach of a pre-charge bail condition is not itself a criminal offence. Once in detention, a decision must be made as to whether the suspect can be charged with the offence for which they were originally bailed or whether to re-release them on bail. Upon arrival at the police station, the PACE 1984 clock (the 24-hour detention period) continues from the last time the suspect was in custody. However, three hours are added to the clock to give the police more time to seek a charging decision

Breach of promise describes a failure to fulfil a legally enforceable promise, typically arising where a party does not perform obligations created by a contract, deed or clear undertaking relied on by another. In modern UK and Irish practice the concept is usually analysed through contract law (breach of contract) or, in some circumstances, estoppel or misrepresentation, rather than as a standalone cause of action.Historically, “breach of promise of marriage” was a recognised action, but this has been abolished in England and Wales and Northern Ireland, and is not generally available in Scotland or Ireland. Today, references to breach of promise in litigation, legal correspondence or advice usually concern:- a contractual promise (e.g. failure to pay, supply, complete a transaction or honour a settlement); or - a non‑contractual assurance giving rise to reliance-based remedies.Across England and Wales, Scotland, Northern Ireland and Ireland, key issues include: whether a legally binding promise exists, the scope of that promise, breach, causation, and the appropriate remedy (damages, specific performance, injunction or other relief). Usage is broadly consistent, but terminology in pleadings is normally “breach of contract” rather than “breach of promise”.

Breach of restraint order A breach of a restraint order issued under section 41 of the Proceeds of Crime Act 2002 (POCA 2002) constitutes a civil contempt of court, and will be treated as such (as in OB v Director of the Serious Fraud Office). However, sanctions imposed for civil contempt of court as a result of breaching such an order do not prevent a relevant law enforcement agency (usually the applicant for such restraint orders) from pursuing criminal charges, including the offence of perverting the course of justice. In R v Kenny, the court considered it ‘fanciful to suppose that a person contemplating disobedience of a restraint order act[s] on the basis that they will only be punished for contempt of court’. The warning from this authority is therefore that there should be no legitimate expectation that a breach of a restraint order will only result in a civil contempt of court. The court also emphasised in R v Kenny that, depending on the circumstances

IP analysis: This analysis considers the Court of Justice’s preliminary ruling on the question of whether a breach of a contractual licence for the use of computer software can constitute copyright infringement and accordingly whether it falls within the concept of ‘infringement of intellectual property rights’ pursuant to Directive 2004/48. The preliminary ruling considers the appropriate interpretation of Directives 2004/48 and 2009/34 in relation to this question and deals with the Directives’ compatibility with France’s national law, in particular the principle of non-cumulation which prevents a party from bringing a claim in tort where there is a claim in contract. Written by Nicole Bollard, barrister, at 3PB Barristers.

The tort of breach of statutory duty arises where a statute, which has as its main objective the imposition of a regulatory or criminal law framework, also gives rise to duties in tort.

This Practice Note considers claims for damages for breach of statutory duty. For guidance on claims for damages for a negligent breach of duty of care outside a statutory duty, see Practice Notes: • Negligence—when does a duty of care arise? • Negligence—when is the duty of care breached? • Negligence—establishing a duty of care—specific scenarios Breach of statutory duty—nature of liability A claimant who suffers loss or injury in circumstances in which the defendant has been in breach of a statutory provision may sometimes be able to claim damages in tort, even if the situation does not fall within the scope of an existing tort such as negligence. If the statute expressly provides for a claim in damages the position will normally be straightforward. Whether a claim will be available if there is no such provision is said to depend upon the intention of Parliament, which is to be ascertained by construing the statute in question. Since this intention will not be explicit, the courts

Availability of a civil remedy under statute Claims based on a breach of statutory duty are very common and reflect the amount of legislation that exists to regulate the relationships between private individuals and public bodies. Although civil liability for breach of a statutory duty in the context of work has been removed in most cases where the accident occurred on or after 1 October 2013, there remain extensive areas in which a civil remedy for breach of statutory duty is available. Not all statutory duties, however, provide a civil remedy for breach. Some statutes are brought into existence in order to modify or clarify existing common law rights of action. Examples include acts that govern the civil liability of occupiers. The common law rules that regulated the duty of an occupier to its visitor were expressly replaced by the Occupiers' Liability Act 1957 (OLA 1957), making available claims based on breaches of statutory duties. Similarly, the Highways Act 1980 (HiA 1980) provides a remedy for breach of

The duty of care The first step is to determine that a common law duty of care exists between the parties. The next stage is for the claimant to prove that the defendant has breached this duty, ie the defendant’s conduct has fallen below the standard of care required. Although expert evidence may be obtained, whether a duty of care exists is primarily a question of law. For further guidance, see Practice Notes: • Duty of care in personal injury claims • Duty of care and breach in clinical negligence claims The reasonable person test In assessing whether the defendant has breached the duty of care, the court will normally use the reasonable person test, ie what would the reasonable person have done, not done, or have foreseen, in the circumstances of this particular incident. Exactly what the court determines to be reasonable conduct will vary according to the particular circumstances. The relevant factors that the court will consider include: • the magnitude of the risk—see below • state

What is the financial promotion restriction? Under section 21 of the Financial Services and Markets Act 2000 (FSMA 2000), a person (A) must not, in the course of business, communicate an invitation or inducement (communicate includes causing a communication to be made) to engage in investment activity, the entering or offering to enter into an agreement the making or performance of which by either party constitutes a controlled activity, or the exercising of any rights conferred by a controlled investment to acquire a controlled investment. For more information about the financial promotion restriction, see Practice Note: The financial promotion regime—essentials. What are the consequences for breaching of the financial promotion restriction? Where a person breaches the financial promotion restriction, they are guilty of an offence and are liable: • on summary conviction, to imprisonment for up to six months or a fine of up to the statutory maximum or both, or • on conviction on indictment, to imprisonment for up to two years or an unlimited fine or both. For more

Breach of the peace describes actual or threatened violence, or a disturbance causing fear of such harm, and the preventive powers used to stop it.In England and Wales and Northern Ireland, it is a common law concept, not a criminal offence. Case law (R v Howell [1982] QB 416) holds that it occurs where harm is done or likely to be done to a person or, in their presence, property, or a person fears such harm from an imminent disturbance. Police and citizens may arrest without warrant to prevent a breach that is occurring, imminent or likely to be renewed; magistrates may bind over to keep the peace or be of good behaviour.In Scotland, breach of the peace is a common law offence. The test (Smith v Donnelly 2002 JC 65) requires conduct severe enough to cause alarm to ordinary people and threaten serious disturbance. Cases proceed under section 38 Criminal Justice and Licensing (Scotland) Act 2010 (threatening or abusive behaviour).In Ireland, the term is descriptive alongside statutory public order offences (Criminal Justice (Public Order) Act 1994) and peace‑bond orders; Gardaí may intervene to prevent imminent violence.Practically, it underpins protest policing and unlawful arrest claims.