As a general rule where a party refers merely to the existence of a document rather than its contents, that would not be sufficient to constitute waiver of privilege at any stage either prior to or during litigation. Where proceedings have not started or there is an open correspondence between the parties during the litigation, parties will often refer to counsel or solicitor’s advice on the merits of a particular point taken by either side to a dispute. It is sometimes suggested that reference to the substance of an advice which falls short of provision of the same would constitute waiver, either express or implied. It is the view of this

Construction analysis: The Technology and Construction Court (TCC), in an interlocutory matter, held that survey reports, commissioned unilaterally by one party to assist in settlement negotiations, were not subject to without prejudice privilege and should have been disclosed in the court proceedings, and could therefore be relied upon at trial.

Overriding interests are interests which are binding on an estate in land that is registered at HM Land Registry, even though they do not appear on the register. They fall into two limited categories—those that override the first registration of land and those that override a registered disposition of Schedules 1 and 3 to the Land Registration Act 2002 (LRA 2002). The grant of a legal charge is a disposition that is compulsorily registerable under LRA 2002, s 27(2)(f) (in other words, after registration, it will be a ‘registered disposition’). LRA 2002, Sch 3 sets out the limited list of interests that override a registered disposition and therefore bind the disponee (in this

Restructuring & Insolvency analysis: This judgment considers when a creditors’ voluntary liquidation may be converted into a compulsory liquidation, and the standards expected of liquidators when conducting a sale of a distressed company’s assets. The court ordered compulsory winding up where concerns about the liquidator’s independence and conduct of the sales process required an investigation that was both independent and seen to be independent. The decision highlights the need for liquidators to investigate potentially competing valuations and bids, conduct transparent and impartial sales processes, and maintain genuine neutrality in winding up proceedings. A failure to do so may result in costs being disallowed against the estate and the liquidator being held personally liable for costs. Produced in partnership with Alex Akin of Keidan Harrison LLP.

Definition of part-time worker The definition of part-time worker is found in the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, which states that a worker is a part-time worker if (s)he: • is paid wholly or in part by reference to the time (s)he works, and • is not identifiable as a full-time worker, having regard to the custom and practice of the employer in relation to workers employed by the worker's employer under the same type of contract '…same type of contract' in this context means that two compared individuals must, for example, both be employed as employees (who are not apprentices), or both be employed as apprentices, or both have contracts conferring worker status; conversely an apprentice, for example, is not on the 'same type of contract' as an ordinary employee. This issue is discussed further in Practice Note: Part-time workers under the heading Part-time worker defined. For

Dispute Resolution analysis: The Court of Appeal has clarified when a decision on a ‘GLO issue’ will bind parties on the group register, and when the court will exercise its discretion to ‘order otherwise’ under CPR 19.23(1). As a general rule, determination of a GLO issue will bind all other parties on the group register at the relevant time. The court needs a strong reason to depart from that general rule. The principles of res judicata found in issue estoppel provide a helpful guide to when the court can depart from the general rule and ‘order otherwise’. Written by Harriet Campbell, senior knowledge lawyer at Penningtons Manches Cooper LLP.

Where the objects of a company are contained in its memorandum they are deemed to form part of its articles of association by virtue of section 28 of Companies Act 2006 (CA 2006). If a company amends its articles it must send to the registrar a copy of the amended articles not later than 15 days after the amendment takes effect, see CA 2006, s 26. Section 31 of CA 2006 makes clear that any amendment

Practice Note: Striking out and unless orders provides guidance on: • the power of employment tribunals to strike out all or part of a claim, and also on • the circumstances in which unless orders may be used Further information, see Commentary: Harvey PI[656]–[663.04]: Claim not actively pursued. A tribunal has no general jurisdiction to strike out or dismiss a claim: its only power to do so is contained in the procedural mechanisms set out in the ET Rules. The power to strike out is set out in Rule 37 of the ET Rules. Rule 37(1) sets out five grounds that may justify a strike out at (a) to (e). Where the only issue is the claimant’s fitness to pursue a claim (as opposed to concerns about the lack of merit of the claim and/or concerns about the inappropriate way in which it is being pursued), the only two of those five that will be

The Finance Act 2020 permits HMRC to issue joint and several liability notices to make directors and other persons involved in tax avoidance, tax evasion or phoenixism jointly and severally liable for the tax liabilities of a company. Such notices may apply to directors or shadow directors where the company is subject to, or there is a ‘serious possibility’ of it being subject to, an insolvency procedure, including administration, voluntary arrangements and liquidation. Joint and several liability may apply in the following three cases:

Family analysis: Richard Jones, barrister at 1GC Family Law, and Helen Fitzsimons, solicitor at Helen Fitzsimons Family Law, examine the Family Division's decision that it was in the best interests of a child to reside with his father, on the basis that the mother had alienated the child from the father and that transferring the child’s residence to the father was the only way he would be able to have a meaningful relationship with both parents.

Arbitration analysis: Infrastructure Services v Spain is a rare case where the courts have had reason to consider the procedure by which a respondent to an application for permission to appeal may contend that conditions should be attached to the grant of permission. That issue arose in the context of an ICSID arbitration award by which the Kingdom of Spain had been held liable for a substantial amount of money to the claimants. Spain sought and obtained permission to appeal an order of the English Courts registering the Award as a judgment of the High Court. The claimants subsequently sought an order requiring Spain to secure their claim in full as a condition of the right to pursue the appeal. The two issues for the Court of Appeal were, firstly, whether that application was open to the claimants, or whether the application had already been made and rejected by the Court of Appeal judge who had granted permission to appeal, and, secondly, whether any conditions should be imposed. The court held that the application was open to the claimants but that there was no compelling reason justifying the attachment of conditions to the appeal. Written by Paul Toms, barrister at Quadrant Chambers.

Contaminated land regime The contaminated land regime places a statutory duty on local authorities to identify 'contaminated land' in their area and to secure remediation. See Practice Note: Contaminated land—local authority duty to inspect land If a site is investigated or designated as contaminated land, the local authority will look first for any Class A 'causers' or 'knowing permitters'. If no Class A persons can be found, the current Class B owner or occupier will be liable. See Practice Note: Contaminated land—who may be liable? The local authority will try to find as many Class A persons as possible. See Practice Note: Contaminated land—identifying Class A and B appropriate persons. This could include the following: • the original polluter(s) • subsequent occupiers if deemed causers or knowing permitters • neighbouring site operators if there has been migration of contaminants • the developer • the current