Getting documents: early specific disclosure

by Hardwick Legal | Feb 14, 2017 | Purpose Built (LexisNexis)

In Bullring Limited Partnership v Laing O’Rourke Midlands Limited [2016] EWHC 3092 (TCC), the Technology and Construction Court ordered specific disclosure (before the defence had been served) of several categories of documents. Simon Hargeaves QC of Keating Chambers, who acted for the defendant/applicant, considers the decision and the benefits of obtaining early specific disclosure during proceedings.

What are the practical implications of this case?

There are several ways to get documents from the other side:

• contractual rights (eg injunction, agency and specific performance)
• procedural rights (pre-action disclosure, disclosure in aid of another dispute resolution process, early (specific) disclosure, standard disclosure and third party disclosure)

In this case the court defined the test to be applied for early specific disclosure; ie applying for specific disclosure during proceedings but ahead of the usual time for disclosure.

Early specific disclosure is underused. It should be given some consideration as the jurisdiction and test are simple, lots of proceedings are stayed after protective claim forms, documents are often required to plead defences satisfactorily and there is no costs penalty like for pre-action disclosure.

What was the background?

The defendant had been requesting documents which only the claimant had and which the defendant needed in order to plead its defences. Specifically, the documents were:

• maintenance records, which went to a liability defence to the defects claim (i.e. the maintenance records would show whether maintenance, or a lack of maintenance, caused or contributed to the defects)
• historic complaints and investigations, which went to a limitation defence (i.e. when physical damage first occurred (primary limitation in negligence) and when the ‘date of knowledge’ (second limitation in negligence, under s14A of the Limitation Act 1980).

These requests had been going on for 18 months. The claim was a very stale one, issued at the very end of the limitation period. The claimant had made use of an agreed standstill, and then a stay after protective proceedings were issued, in order to improve the presentation of its case. The defendant had not been afforded the same opportunity to improve its own case, due to the claimant’s refusal to provide the documents.

What did the court decide?

The court had the jurisdiction to order disclosure under CPR 31.12, which provides that ‘The court may make an order for specific disclosure or specific inspection’.

The court formulated the test for whether disclosure should be given as:

Taking into account the overriding objective and the respective consequences of making or not making the order, whether, in all the circumstances of the case, the applicant has demonstrated that there is a proper basis for early disclosure as opposed to disclosure after close of pleadings.”

It added that:

for a proper basis to be identified, there does need to be something important or significant which can be achieved by ordering early disclosure.”

The court decided that the defendant was entitled to early disclosure of the categories of documents requested, for reasons including the following:

• it was not an exercise that would have to be done twice. It was just being done early, and any costs would be modest
• it would not be a difficult task
• the exercise of collecting the documents ought to have been done many years ago
• now was a good opportunity in the proceedings for the disclosure work to be done (due to a pause in the proceedings for other reasons)
• the documents would narrow the issues in dispute
• it would allow the defendant an equivalent benefit to the lengthy period of evidence gathering enjoyed by the claimant

This article originally appeared on Lexis®PSL. Subscribers can enjoy earlier access and a full-range of related guidance. Click here for a free trial.

Source: LexisNexis Purpose Built
Getting documents: early specific disclosure

New labour legislation in the United Arab Emirates

by Hardwick Legal | Feb 9, 2017 | Purpose Built (LexisNexis)

Luke Tapp and Andrea Hewitt-Sims of Pinsent Masons explore key changes announced recently by the Ministry of Human Resources and Emiratisation (MOHRE), which will have a positive impact on employees in the UAE.  The changes impact:

• salary protection
• Emiratisation, and
• employee accommodation

It is important for UAE based companies, senior managers and HR professionals to be aware of these important developments and how they may impact on the management of their workforce.

Wage protection

The payment of salary within the UAE has been regulated and monitored by the authorities for several years following the introduction of the Wage Protection System (WPS) in 2009. The WPS is an electronic salary transfer system that requires all companies to pay employees via banks, UAE Exchange or registered financial institutions. Developed by the Central Bank of the UAE, the system allows the MOHRE to create a database that records wage payments in the private sector to guarantee the full and timely payment of agreed wages. The WPS applies to all institutions registered with the MOHRE across all sectors and industries.

The WPS had an extremely positive impact in respect of the regularity and timing of salary payments within the UAE.  However, where employers based within the UAE have failed to comply with the WPS, although there has been business interruption, there has historically been no associated financial penalty.  Therefore some companies have failed to comply with the WPS for long periods of time without accruing any punitive penalties.

The MOHRE has sought to tackle this by introducing a punitive Wage Protection Decree, Ministerial Decree No (739) of 2016, which reinforces the statutory obligation on employers to pay their employees on time and in full and introduces possible financial penalties.  The Decree was introduced in October 2016. The key provisions of the Decree are:

1. The Decree applies to all organisations which are registered onto the WPS. Such companies must pay wages within ten days of the registered payday in the WPS.
2. In respect of companies with over 100 employees:
   1. where such companies fail to adhere to the ten day timeframe, the MOHRE will stop granting any additional work permits with effect from the 16th day of the delay.
   2. if wages are not paid within one month of the registered payday, the MOHRE will inform the judicial authorities, which will take “all necessary punitive measures against the company”.
   3. if wages are not paid within 60 days of the registered payday, the company will be fined AED 5,000 per employee, up to a maximum of AED 50,000 if the delay affects multiple workers.
3. In respect of companies employing less than 100 employees, it shall be treated in the same way as a larger company and subject to the same penalties where:
   1. the company breaches the requirements of the Decree twice within one year; or
   2. the company fails to pay within 60 days of the registered payday.

The introduction of this Decree adds further regulation to the provisions of the WPS and better protection to employees.  It provides the MOHRE with greater authority to enforce its provisions.

Emiratisation

The UAE Labour Law (Federal Law No. 8 of 1980, as amended) provides that employment is the right of UAE nationals and that non-nationals should only be employed if there is no suitably qualified UAE national available. A number of Ministerial decrees and regulations set out the UAE’s Emiratisation programme which has been in place for over ten years. This programme includes, for example, the requirement that companies employing more than 100 employees must appoint an Emirati or GCC national public relations officer. Further, companies should contact the National Human Resource Development and Employment Authority (Tanmia) who will nominate UAE nationals for the role of secretary, and a UAE national must be employed as HR manager.

While these latter requirements, in relation to the employment of secretaries and the appointment of HR manager, may not be rigidly enforced, the fact remains that practice may change at any time and businesses can derive benefits from compliance with the Emiratisation programme. The three new provisions recently announced by the MOHRE confirm the UAE’s ongoing commitment to encourage Emiratisation within the UAE private sector.  Increasing the number of local nationals employed within the private sector continues to be an important theme for all of the governments of the GCC countries.  Within the UAE in particular, the MOHRE remains committed to encouraging Emiratisation in a positive and inclusive manner.

The three new requirements which UAE businesses must adhere to with effect from 1 January 2017 are:

• Data Processing Officers – Ministerial Resolution No. 710 of 2016 requires all organisations employing 1,000 or more employees to register on the MOHRE’s online platform (Tas’heel) to obtain work permits for employees. Businesses must declare that they are an employer and register every staff member. The platform can only be accessed by UAE nationals.  The Resolution also places an obligation on employers to engage two UAE nationals in the position of Data Process Officer.

Organisations which fail to comply with the Resolution may lose their sponsorship privileges and be unable to obtain new work permits.  The MOHRE may also apply additional administrative and financial penalties.

• Health and Safety Officer – Ministerial Resolution No. 711 of 2016 requires all companies operating in the construction or industrial sector which employ 500 or more employees to employ a UAE national in the position of occupational health and safety officer. The employee should implement and monitor employee health and safety practices.

Organisations who do not comply with the Resolution will not be able to obtain new work permits until an Emirati is appointed to the role.  The MOHRE may also impose additional sanctions.

• Changes to Company Classifications – Ministerial Resolution No. 740 of 2016 builds on the existing Emiratisation framework in the UAE. The present framework provides incentives for organisations to engage UAE nationals within their businesses and grades organisations into one of three categories depending on how effective their Emiratisation policies are. Organisations within a higher category may avail of a number of benefits including paying lower MOHRE and immigration fees, exemption from depositing bank guarantees for employees and finding it easier to obtain visas. 

The new Resolution amends the existing categories by introducing additional sub-categories to enable organisations to improve their rating by applying certain enhanced Emiratisation requirements.

In light of these changes, businesses should in the first instance assess staff population and if the required 500 or 1,000 person threshold is met, complete the necessary registration and appoint or employ a UAE national to the required role.

It should also be noted that the Emiratisation requirements both existing and newly introduced do not currently apply in the UAE’s free zones.

Employee accommodation

The introduction of Ministerial Resolution No. 591 of 2016 applies to employees earning less than AED 2,000 per month (Low Income Employees). Employers who employee more than 50 Low Income Employees must provide such employees with accommodation at the employer’s cost.

The Resolution took full effect from 1 January 2017 and compliance is expected to be monitored closely by the MOHRE.  It is important for employers who engage Low Income Employees to ensure they have suitable employee accommodation available for their employees.

The scope of the Resolution may expand in future as Local authorities have discretion to apply the Resolution to employers with fewer than 50 Low Income Employees or to employees earning above the AED 2,000 threshold. This demonstrates the importance the UAE government places on protection of employees, particularly those on low incomes.

Going forward

The introduction of these new provisions demonstrates the importance of wage protection, Emiratisation, and employee accommodation to the UAE government.  These are key areas of labour management which the MOHRE and the UAE government wish to focus on, protect and improve.  It is important for contractors and employers to be aware of the emphasis which the local authorities are placing on labour management and Emiratisation and of course, it is essential for companies to understand how the above Regulations may impact on their business.

It is an exciting time to be growing business and engaging employees in the UAE and the development of the statutory framework around key issues such as Emiratisation, wage protection and employee accommodation is a positive development for business growth and commercial activity within the region.

Source: LexisNexis Purpose Built
New labour legislation in the United Arab Emirates

President Trump and the future of the Paris Agreement

by Hardwick Legal | Feb 7, 2017 | Purpose Built (LexisNexis)

What are the implications of Trump’s presidency for climate change? Sebastien Korwin, a senior legal and policy advisor at Climate Law and Policy, warns that President Trump’s declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change.

What environmental issues will Donald Trump prioritise in the early days of his Presidency and what is likely to be the impact of these?

Throughout his election campaign Donald Trump made a number of statements that provided clues on the steps his administration could take with regard to the environment and, more specifically, environmental legislation. In a televised address outlining his policy plans for his first 100 days in office, he pledged to cancel funding for climate change programmes, vowed to revive the coal industry and lift restrictions on drilling for fossil fuels on federal lands to encourage an increase in shale, oil and natural gas production. Myron Ebell, a key member of Trump’s transition team, also outlined some of Trump’s plans for the US Environmental Protection Agency (EPA), which include limiting the regulation of power plants and revising the rules on developing crucial ecosystems such as wetlands.

Trump’s cabinet nominations support this general position, with picks that include Rex Tillerson, CEO of ExxonMobil for Secretary of State, Rick Perry for Department of Energy and Ryan Zinke, who has questioned the extent of humanity’s role in causing climate change, for Department of the Interior. His proposed attorney general, senator Jeff Sessions has come under scrutiny for failing to disclose that he leases land to an oil company. Scott Pruitt, Trump’s pick for administrator of the EPA (a key sub-cabinet position), has actually been involved in 14 lawsuits against the EPA while attorney general of Oklahoma, including an attempt to revoke the Clean Power Plan.

Since his inauguration on 20 January 2017, President Trump has issued his ‘America First Energy Plan’, which among other things, commits to eliminating Obama’s 2013 Climate Action Plan. He has also recently signed executive orders to ‘facilitate the expeditious review’ of the permit application for the Keystone XL and Dakota Access pipelines, which had previously been put on hold by the Obama administration following major public protests.

The Trump administration has also taken some drastic measures at the EPA, including:

• the recent statement by Doug Ericksen, the communications director for Donald Trump’s transition team at the EPA, that all future studies or data from scientists at the EPA must undergo review by political appointees before they can be released to the public
• the imposition of a media blackout
• a temporary suspension of all new business at the department, including the provision of grants (such as those that support environmental testing and innovation projects) and contracts (such as hazardous waste handling and drinking water quality testing)

This apparent trend of prioritising commercial (in particular fossil fuel) interests over environmental regulation is a major causesfor concern, not only in terms of CO2 emissions, but also for the US environment as a whole. For instance, seven million gallons of crude oil were spilled in more than 1,000 pipeline leaks between 2010 and 2015 alone. The watering down of environmental regulations and the limits being placed on the EPA are only likely to increase these occurrences.

What would the US’s withdrawal mean for the Paris Agreement in general? Could it have a domino effect?

During his campaign, Donald Trump made statements that climate change is not happening or is a hoax perpetrated by China. His declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change. It has since been reported that President Trump is preparing to sign two executive orders, one to drastically reduce the US’s role in the United Nations and the other, entitled ‘Moratorium on New Multilateral Treaties’, calls for a review of all current and pending multilateral treaties and to consider which ones the US should leave. The scope of the order is intended to include all multilateral treaties that are not ‘directly related to national security, extradition or international trade’, which will likely include the Paris Agreement.

It is unlikely however, that even the withdrawal of the US would spell the end for the Paris Agreement. During the 22nd United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) held in Marrakesh in November 2016, the Chinese vice-foreign minister, Liu Zhenmin made it clear that a US withdrawal would not deter China from supporting either the climate negotiations nor the implementation of the Paris Agreement.

While the withdrawal of US support (in particular, funding to poor and vulnerable countries to mitigate and adapt to climate change), would hinder efforts to implement the Paris Agreement, the willingness of major players such as China and the EU to collaborate to drive coordinated climate action forward means that it will not suffice to kill the Paris Agreement entirely, nor is it likely to cause a domino effect of withdrawals.

How realistic is this withdrawal and is it likely to face congressional opposition?

President Trump has recently stated that he now has an ‘open mind’ with regard to US involvement in the Paris Agreement and Secretary of State, Rex Tillerson told the Senate Committee on Foreign Relations during his confirmation hearing that the US should ‘maintain its seat at the table’ in the climate negotiations. He also said that the threat of global warming is real, that it ‘requires a global response’ and that ‘no one country is going to solve this on its own’.

Following the November 2016 elections, the Republican Party now has majorities in both the Congress and Senate, and has publicly declared its opposition to the Paris Agreement. The degree of congressional opposition to an attempt by the Trump administration to withdraw from the Paris Agreement would therefore depend on the Democrats. It has been argued that leaving the Paris Agreement will be simple because it hasn’t been ratified by the Senate, though in reality it may not be so simple.

The Paris Agreement officially entered into force on 4 November 2016, which according to its Article 28 means that any party seeking to withdraw from it must wait three years following its entry into force to communicate their intention to withdraw. Even then the withdrawal would only take effect one year after that (for a total of four years). It has however, been argued that the US could simply withdraw from the United Nations Framework Convention on Climate Change (UNFCCC) altogether, which would only take one year according to Article 25. As the UNFCCC is the framework agreement, withdrawing from the Convention would also result in withdrawal from the Paris Agreement.

Could the UK, buoyed by its commitment to pursue a hard Brexit, follow suit?

In July 2016, the Prime Minister Theresa May abolished the Department of Energy and Climate Change (DECC) and merged it with the Department for Business, Innovation and Skills (BIS) to form the new Department for Business, Energy and Industrial Strategy, causing concern that action on climate change may be moved down the list of government priorities.

However, the UK government ratified the Paris Agreement on 18 November 2016, suggesting that Mrs May’s government intends to continue playing a role in the multilateral negotiations. Nick Hurd, Minister of State for Climate Change and Industry, was quoted as saying that ‘The UK is ratifying the historic Paris Agreement so that we can help to accelerate global action on climate change’ and that the government would ‘use this positive momentum to grow the UK low-carbon sector’ (at COP 22). It is therefore unlikely that Brexit would lead to the UK withdrawing from the Paris Agreement. On the contrary, continued diplomatic engagement in the UNFCCC would cement the UK’s position as a sovereign player, separate from the EU.

Could a UK/US trade deal prove harmful to the environment, ie if it results in fewer restrictions and regulations being placed on UK/US products and services?

There is no short or simple answer to this question, however, looking at the negotiations of relevant trade deals, including the Transatlantic Trade and Investment Partnership (TTIP), can provide insights as to why commentators are concerned. Following a leak by Greenpeace of 13 chapters of the draft TTIP, it emerged that significant areas of EU legislation have been identified by negotiators as ‘technical barriers to trade’ to be removed, including on:

• energy efficiency labels
• public procurement policies
• the regulation of unconventional fossil fuel extraction
• the regulation of toxic chemicals

It is likely that UK/US free trade negotiations would lead to similar conclusions by US negotiators and could also lead to them calling for these ‘technical barriers to trade’ to be removed.

Under World Trade Organization rules, states have the right to take measures to protect ‘human, animal and plant life or health’ or for the ‘conservation of exhaustible natural resources’ without these being considered breaches of free-trade rules. However, the US in all its free trade negotiations (including the North American Free Trade Agreement (NAFTA), TTIP, Trans-Pacific Partnership as well as its bilateral trade agreements) has insisted on the inclusion of Investor-State-Dispute-Settlement (ISDS) clauses, which grant foreign investors (ie US companies) the right to sue states if they believe that laws or measures of or any partner are likely to damaged their investments and reduce their expected profit. Recently these clauses have been called upon by investors facing environmental regulation around the world, resulting in huge legal costs for states. An example is the US Lone Pine energy company using the NAFTA ISDS provisions to sue the provincial government of Quebec for approximately $120m because it suspended shale gas mining pending an environmental study in response to community concerns (see Lone Pine Resources Inc v Government of Canada, ICSID Case No UNCT/15/2). It is likely that such clauses would be included in any future US/UK, thus potentially undermining any future UK environmental legislation.

Sebastien Korwin is an environmental lawyer working on international environmental policy and law in the areas of climate change, biodiversity, forest governance, REDD+ and human rights.

Climate Law and Policy (CLP) is an independent advisory organisation that helps design, implement and sustain environmental governance advancements.

Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Source: LexisNexis Purpose Built
President Trump and the future of the Paris Agreement

How to: Vacant possession strategy for redevelopment

by Hardwick Legal | Feb 3, 2017 | Purpose Built (LexisNexis)

All you need to know about vacant possession strategy for redevelopment – covering the types of occupation and issues a developer may encounter when considering the viability of a potential redevelopment site.

Vacant possession strategy for redevelopment: balancing interests and timings - download your free to access practice note.

A site that is ripe for redevelopment can also be laden with different interests, with varying degrees of legal protection. Landlords that are looking to redevelop must consider the nature of any interests, and the mechanisms and timings for terminating them, well before any redevelopment is due to commence.

This practice note, produced in partnership with Jill Carey of Taylor Wessing LLP and part of our new LexisPSL Property Disputes module, considers the types of occupiers and interests in place, from commercial leases to long-term residents and licensees, and how these interests might be terminated. As timing is critical to redevelopment, we also explains the timing of serving notices and taking action to recover possession, and the importance of ensuring that the developer deals with all the interests on the site, not just the immediate subject.

• What problems/issues may a developer encounter when trying to recover vacant possession of a property or site?
• Provides a guide to the most common issues relating to occupation and what owners/landlords need to be aware of
• Details the notices to be served and the steps to be taken to bring each type of occupation to an end
• Sets out the potential impact of these issues on timing and costs of redevelopment

Download your free copy.

Before it’s here, it’s on Lexis®PSL. Click here to take a free trial.

Lexis®PSL Property Disputes is an online practical guidance product for customers dealing with property litigation matters which provides a range of procedural and substantive guidance set out in topics which reflect how disputes are approached in practice, both in terms of the underlying issues as well as the different stages of proceedings.

LexisPSL Property Disputes contains brand new content as well as existing content from both LexisPSL Property and LexisPSL Dispute Resolution.

This new module has been created based on customer feedback that those working in the area of property disputes would like all of the information they require together in one place. It is a one-stop-shop for property disputes legislation, cases, current awareness, commentary, practical guidance, checklists, and precedents. This expert content is split into a wide range of intuitive topics and sub-topics which can be easily searched and navigated.

Source: LexisNexis Purpose Built
How to: Vacant possession strategy for redevelopment