Family analysis: On an appeal in respect of a decision by a circuit judge to set aside the findings of fact made by a district judge, the Court of Appeal found that the circuit judge had been both wrong and unfair in making that decision on the basis of the apparent bias of the district judge. Further that he was mistaken in stating that the test for apparent bias is whether an observer would be concerned that justice had not been seen to be done, when the correct question is whether the observer would conclude that there was a real possibility that the judge was biased. The judge’s conclusion that the district judge’s findings were infected by apparent bias was not supported by any sound reasoning. Poonam Bhari, barrister at 3PB Barristers, looks at the issues.

Restructuring & Insolvency analysis: The High Court refused to set aside a statutory demand founded on an unpaid costs order, holding that no qualifying cross-claim existed under the Insolvency (England and Wales) Rules 2016 (IR 2016), r 10.5(5)(a) where the alleged claim did not lie against all petitioning creditors. The court further declined relief under IR 2016, r 10.5(5)(d), finding no abuse of process or real risk of stifling. It emphasised that ordinary enforcement of a costs debt will not be impugned absent cogent evidence of improper purpose, and that assertions of inability to pay must be supported by financial evidence. The decision underscores the limits of the court’s discretion and the need for a fully substantiated case when invoking cross-claims or stifling arguments. Produced in partnership with Oliver Caplan, barrister at 18 St John Street Chambers.

Arbitration analysis: In CBI Constructors Pty Ltd v Chevron Australia Pty Ltd, a majority of the High Court of Australia set aside a second award through which the arbitral tribunal had allowed the repleading of issues of the respondent’s liability that had already been decided in the first phase of bifurcated proceedings. It signalled how Australian Courts understand the scope of Article 34(2)(a)(ii) of the Model Law and their preparedness to set aside procedural decisions of tribunals seated in Australia. Written by Dr Julian Wyatt, partner at Abrahams Meese Lawyers, Melbourne, Australia.

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Personal Injury analysis: How should the courts apply section 1 of the Compensation Act 2006 (ComA 2006) and the ‘social utility’ factor when considering a claim in negligence? Rachel Moore, a partner at Kennedys Law LLP, says the Court of Appeal’s judgment in Humphrey v Aegis Defence Services Ltd and another importantly outlines how ‘social utility’ is just one of the factors that can be taken into account when determining the nature and scope of any duty of care.

PI & Clinical Negligence: The claimant brought a claim in accordance with the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (‘The RTA Small Claims Protocol’). Having submitted a claim on the Official Injury Claims (OIC) Portal, the claimant sought the determination of quantum of her pain, suffering and loss of amenity, alleging that she had suffered injuries to her right leg which warranted an award not fixed by the ‘tariff’ system for whiplash injuries. In finding that the claimant had not proven the existence and causation of a non-tariff injury, the court: provided helpful assistance on how causation arguments can be raised in the RTA Small Claims Protocol; emphasised the need for claimants to meet an evidential burden in proving the existence of non-tariff injuries; and gave guidance on how ambiguities in medical evidence should be resolved. Written by David Fardy, barrister, 8DB (DAC Beachcroft).

Factors to consider before setting up a charity New charities are established for a number of reasons. Grant-making charities can be useful vehicles for managing charitable donations effectively and tax-efficiently. In some cases, feeding donations through a grant-making charity is the only way to obtain UK tax relief on donations that will be used to carry out charitable activities. For example, where the intended recipient is an overseas organisation which does not qualify for UK charitable tax reliefs, donors may consider giving through an existing UK charity whose purposes permit it to support the proposed activities. Establishing a new grant-making charity is not necessarily required. A new operating charity, on the other hand, may be established to pursue a charitable objective which is not carried out by any existing charity, or where the founder believes that there is another, more effective, way of carrying out that objective. Charities usually cost money to set up and to run. Before a new charity is established, it is therefore important to ensure that such expense will not be wasted. For

A commonhold scheme may be created: • during a new development (eg block of flats), or • where there is an existing block of flats, that operates on a leasehold basis, but both the freeholder owner and current long leaseholders (owners of leases granted for more than 21 years) agree to convert to commonhold New development with no existing unit holders Ordinarily, a developer sets up the commonhold scheme before selling off any of the ‘units’ (ie individual flats). In order to do this, the registered freehold owner of

Joint venture The term joint venture has no specific legal meaning under UK law. It is essentially a commercial arrangement between two or more parties who agree to pool their resources for the purpose of accomplishing an intended project (or other business activity) and share the resulting rewards. It describes many different types of situations that range from structural arrangements that create or change the economic control of a legal entity, such as joint venture companies or partnerships, to non-structural arrangements such as contractual joint projects and informal (undocumented) collaborations. A joint venture can be formed for one specific project, period or a continuing business relationship. Joint ventures are used in a variety of sectors. There are a variety of reasons why parties may consider forming a joint venture to pursue a project or business, such as: • they lack the necessary knowledge, expertise, technology, resources and/or funding • by sharing the requirement to provide funding, they thereby reduce the financial risk • they may be able to access new markets • they can continue

Number and identity of the partners How many partners will there be and who are they? What is the capacity of each of the partners? Individual, company, other partnership, other entity or body? Do all the partners have the necessary qualifications? Will there be salaried partners or fixed share partners? What rights and obligations will they have? Will they be party to the partnership agreement? Will it be possible for new partners to be introduced? If so, will they need to execute a deed of adherence? Will unanimous consent be needed to admit new partners? Business details What will be the business of the partnership? Is it a continuing business, or one-off project or projects? Are any regulatory consents, approvals and licences required for the proposed business? What will be the name of the partnership? Does the name conflict with an existing business name? Conduct searches at Companies House and Trade Marks Registry. Will the business require a domain name? Conduct domain name search and register. Where will the partnership carry on business? Are the

Choosing the joint venture vehicle A joint venture is not recognised under English law as a distinct legal concept. It is essentially a commercial arrangement between two or more parties who agree to pool their resources for the purpose of accomplishing an intended project (or other business activity). It describes many different types of situations that range from structural arrangements that create or change the economic control of a legal entity, such as joint venture companies or partnerships, to non-structural arrangements such as contractual joint projects and informal (undocumented) collaborations. A joint venture can be formed for one specific project, period or a continuing business relationship.  Parties wishing to enter into a joint venture have a number of choices of structure available to them. The choice of structure depends on the circumstances of the parties. The most common structures used are a: • corporate joint venture—establishing a separate limited company of which each party is a shareholder • joint venture partnership—establishing a new partnership, or • contractual or commercial joint venture—setting out all the details of

This checklist sets out the key issues to consider when setting up a limited liability partnership (LLP). It considers the relevant legal, regulatory and practical issues. Number and identity of the members How many members will there be and who are they? A member cannot be an undischarged bankrupt or person disqualified from being either a member of a limited liability partnership (LLP) or a company director. What is the capacity of each of the members? Individual, company, other entity or body? In respect of: • individuals, provide: ◦ names and any former name(s) used for business purposes in the past 20 years ◦ usual residential address (and any exemption from its disclosure to credit reference agencies under CA 2006, s 243 as applicable to LLPs) ◦ service address (which may also be the LLP's registered office) ◦ country or state of residence, and ◦ date of birth • corporations, provide: ◦ name (and any firm name) ◦ registered or principal office, and ◦ registration number (if a UK company) or legal