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28 Days Later – The Public Procurement Version
Wednesday 18th July 2018

In a “post-Carillion” world, the subject of payment terms for sub-contractors has come to the fore again.

As avid readers of public procurement law blogs and legislation will know, the Public Contracts Regulations 2015 (“the Regulations”) require that payment of undisputed invoices must be made within 30 days by contracting authorities, and they must pass this obligation down to the tier one contractor.

Although the Regulations came into force in 2015, Network Rail have recently become notable as the first major contracting authority to introduce teeth to payment clauses for their contractors.

Network Rail’s new Terms and Conditions will require all tier one contractors to pay suppliers within 28 days of work and all cash retention policies will be abolished. Most importantly, Network Rail’s new terms mean contractors will face the consequences of being in breach of contract if they fail to comply. Previously, it was only a voluntary framework in place with minimal checks on contractors.

Although the penalties have not yet been decided by Network Rail it is an important step in the right direction towards ensuring that contractors who do not treat their sub-contractors fairly will face penalties. The plans also include a function to allow the tier two contractors to report directly to Network Rail if a tier one contractor is not complying with the payment terms.

Network Rail aren’t the only ones backing up their talk with tangible actions, Build UK and CECA have also proposed abolishing retentions on construction matters by 2023 and Peter Aldous MP has proposed a bill in Parliament that would see a retentions deposit scheme established.

These developments are of interest to contracting authorities because Network Rail has shown how this obligation in the Regulations can have teeth and be beneficial and not just be a “tick box” exercise. It should also be of interest to the private sector who can use Network Rail’s lead in pushing for good payment terms for sub-contractors. If you are a tier one supplier though – be aware this obligation may be coming your way.

If you would like to speak to a Procurement Law expert about your, please contact a member of our team


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Brexit White Paper Release: An employment perspective
Wednesday 18th July 2018

The Prime Minister released the Government’s formal proposal regarding the UK’s Brexit position on 12 July 2018. To say the proposal received a “mixed response” would be slightly disingenuous. The proposal is described as “the worst of both worlds” and “dead” by Justine Greening and Sir Bernard Jenkin respectively, but what does it mean for UK employment law?

What was anticipated?

Legal professionals did not predict a wholesale overhaul of the existing framework of employment law following Brexit. EU-derived legislation such as the Working Time Regulations and TUPE have enshrined a body of law which most of the electorate within the UK has come to revere.

That said, a number of slight concerns have been raised within the legal community since 2016 regarding TUPE harmonisation of terms, collective consultation during the redundancy process, alongside some of the protections detailed under the Working Time Regulations. There is some debate as to whether pruning the UK’s employment law regime is necessary or desirable following Brexit.

Elsewhere, the mood has not been so calm. Commentators, media outlets, politicians, experts and trade unions alike have been decrying the “bonfire of workers’ rights” which would engulf EU-derived worker protection if Brexit were to pass. Following publication of the Government’s white paper last week, such sensationalism seems, at first glance, to be slightly wide of the mark.

What will change?

As it stands, not much. The white paper confirms that: existing workers’ rights enjoyed under EU law will continue to be available in UK law on the day of withdrawal. Ultimately, the Government’s stance on this issue is that: the UK proposes that the UK and the EU commit to the non-regression of labour standards.

The white paper reminds readers that the UK is already a leader in workers’ rights protection. The Government seemingly holds employment rights in the same esteem as existing consumer and environmental standards; none of which shall be compromised following Brexit.

There is to be no bonfire in the foreseeable future if the Prime Minister gets her way. However, given the backlash to the Government’s white paper, the likely amendments suggested by Parliament and pending EU consideration of the eventual offer, it is unlikely that the proposal in its current form will represent the final arrangement.

What’s next?

Former Cabinet Minister Justine Greening called for a second referendum in light of publication of the white paper. Such a call is likely to fall on deaf ears – the appetite for a second referendum is currently mild at best, given that the public are generally polling at the same percentages that they were in 2016 on this issue.

Of course another possibility is that the Government might fail. These are extremely turbulent times, a leadership challenge against Mrs May is not out of the question and could lead to even more uncertainty.

The Government is highly unlikely to materially repeal workers’ rights on Brexit, regardless of the manner in which the UK leaves the EU. It is promising to see that the Government’s opening position ensures protection of employment law. It is not in the interest of the EU to attempt to negotiate on this position.

For a brief moment, at least, the fog has lifted on the future of UK employment law. But for how long? According to a recent Independent article concerns have been raised in a letter sent  by a number of organisations supporting disabled people to the International Trade Secretary that the Trade Bill “lets ministers change a wide range of laws- including the Equality Act- without scrutiny, in order to implement international trade agreements.” While the focus of the letter is on disabled people’s rights, in particular their access to public transport, as we all know, the Equality Act contains anti- discrimination in employment legislation so it remains to be seen whether there could, in fact, be changes to employment rights after all.  Once again, it’s a case of wait and see.

For more information on the topic please contact Adrian Horne or a member of the Employment team

 


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GPhC consultation

Tuesday 17th July 2018

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The General Pharmaceutical Council (“GPhC”) has circulated a consultation paper setting out proposals for developing its approach to regulating registered pharmacies. The consultation proposes a number of significant changes to the inspection of and reporting on registered pharmacies with a view to ensuring safe and effective service delivery and achieving “assurance and improvement”.

The GPhC has outlined three clear goals that it hopes to achieve through the implementation of its new regulatory approach:

  1. provide greater assurance to patients and the public and the pharmacy sector that registered pharmacies are meeting standards;
  2. further drive continuous improvement in the quality of services and care for the public; and
  3. ensure the GPhC keeps pace with ongoing developments in pharmacy.

The main changes proposed by the GPhC are:

  • there will be three types of inspections: routine, intelligence-led and themed;
  • as a general rule, pharmacy inspections will now be unannounced, as opposed to the current model where pharmacies receive 4-6 weeks’ notice;
  • pharmacies will receive one of two possible outcomes following inspection: ‘met’ or ‘not met’;
  • inspection reports will include 26 standards that will be marked on the following scale, ‘not met’, ‘met’, ‘good practice’ and ‘excellent practice’. All of these standards will need to be at least ‘met’ in order to receive the overall ‘met’ rating; and
  • inspection reports will now be published and made available on its website with the intention that such reports will be treated as a ‘hub for learning’.

The GPhC wants to be ‘agile and responsive’ in the way in which it carries out inspections and has proposed three new types of inspection. It plans to continue to routinely inspect every registered pharmacy in Great Britain and will be more responsive to intelligence received and information held on those pharmacies considered to be more ‘high risk’.

  1. Routine Inspections

Routine inspections will continue to be carried out on every pharmacy. The GPhC plans to use risk indicators in order to prioritise the pharmacies that will be inspected first. The pharmacy’s previous inspection rating, new management or a change in the level and complexity of services provided may all be relevant to its decision. Such routine inspections will be unannounced.

  1. Intelligence-led Inspections

This category of inspections has been introduced in order to respond to risks or concerns that have been raised with the GPhC. It hopes that it will be better able to use the information it receives from other sources with the hope of tracking the patterns and trends that create problems for pharmacies. Again, these visits will, as a general rule, be unannounced.

  1. Themed Inspections

This is a new type of inspection that the GPhC is planning to introduce. The proposal for these inspections is to visit a selection of pharmacies to focus on specific themes or issues. An example of a “theme” which the GPhC may focus on is risk management around supplying medicines online, or services provided to a care home.

The themed inspections are likely to involve the inspection of a number of pharmacies and the GPhC expects that these inspections will need to scheduled, as an exception to the new rule. The reports will not focus on individual pharmacy but rather the trends across a certain type of pharmacy, based on the relevant “theme”.

It will be interesting to see how this works in practice and how useful these reports will be in ensuring assurance and improvement.

Business owners are most likely to be concerned about the GPhC’s move towards publishing all of its inspection reports online, open for anyone to read. The GPhC wants the inspection process to be open and transparent and views the publishing of the reports as an important tool to assure the public that pharmacies are meeting the correct standards. The GPhC also hopes that this will “provide the sector with a rich source of information to inform policy makers and drive continuous improvement”.

The GPhC sees this change as an opportunity for the pharmacy sector as a whole to learn from each other and improve. Much like CQC registration already entails for other healthcare businesses, a summary report will be published that is intended to be the primary source of information to the public. The summary report will contain a link to the full report which is considered to be most useful for the pharmacy’s owner and superintendent but will still be accessible to the public. Following consultation, the GPhC will also publish any improvement action plan that is required following an inspection. It has been confirmed that these reports will not contain any commercially sensitive or patient identifiable information and pharmacies will have the ability to correct any factual inaccuracies in a report before it is published.

The reports will be uploaded to the GPhC’s website to ensure they can easily be accessed to allow people to learn and improve. The website will include a dedicated “Knowledge Hub”, which will comprise, amongst other things, notable exception standards. It is expected that examples of both excellent and unacceptable practises will be available on this site.

Responses to the consultation are due by 9th August 2018.

As seen and published on the Independent Community Pharmacist for more information on the topic, please contact Richard Hough

 


Dr Bawa-Garba

Tuesday 17th July 2018

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A recent High Court decision involving a practising healthcare professional has led to a Government review of the application of the law surrounding malpractice by healthcare professionals.

In 2011, Dr Hadiza Bawa-Garba treated 6 year old Jack Adcock at Leicester Royal Infirmary. During a 13 hour double shift and contending with various system failures at the hospital, the junior paediatric doctor made a number of mistakes in relation to Jack’s treatment, which ultimately led to his death. In November 2015, Dr Bawa-Garba was convicted of gross negligence manslaughter and received a suspended two year prison sentence.

In addition to the criminal trial, the General Medical Council (GMC) inevitably brought fitness to practise proceedings against Dr Bawa-Garba and, in February 2017, the Medical Practitioner Tribunal Service (MPTS) imposed a 12 month suspension, deciding that it would not be appropriate to remove the doctor from its register.

However, the GMC appealed the tribunal’s decision and, on 25 January 2018, the High Court overturned the MPTS’s decision, ruling that Dr Bawa-Garba must be removed from the GMC register – a judgment which has caused a great deal of concern amongst healthcare professionals generally.

This case serves as a stark reminder that individual healthcare professionals may personally face criminal liability if they make mistakes, and it appears at times that little consideration is given by the regulators or the courts to the inevitable stress of working in an environment that is straining under operational and/or financial pressures. In fact, in upholding the GMC’s appeal to have Dr Bawa-Garba struck off the register, the High Court considered that the MPTS had given too much consideration to the doctor’s working environment, and that the tribunal should have respected the verdict of the jury in the criminal trial.

Worryingly, many reports stated that Dr Bawa-Garba’s written reflections in her e-portfolio were used as evidence against her in the proceedings. As those pharmacists who undertake regular CPD may well be aware, the reflective process of CPD is intended to encourage healthcare professionals to learn from their mistakes and to help identify where improvements can be made in practise. But if these records are used by those who sit in judgement on them in disciplinary (or even criminal) proceedings, it will inevitably foster a culture of concealing errors and deficiencies in practise.

Dr Bawa-Garba’s defence team has clarified that such reports were misleading and that her e-portfolio was not used as evidence. However, the issue at hand is one of perception within the profession, rather than legal technicalities.

The widespread coverage of this case illustrates the sense of unfairness felt by healthcare professionals, who have so far collectively raised £366,289 in a crowdfunding petition to help her fund an appeal of the High Court’s decision.

In response, the Government has announced a rapid review into the application of gross negligence manslaughter in healthcare, to be led by Jeremy Hunt’s senior clinical advisor, Professor Sir Norman Williams. The GMC’s Chair, Professor Sir Terence Stephenson, has also announced that the GMC will conduct its own review to look at the wider issues around medical manslaughter, including the consistency applied and the role that reflection should take in such investigations.

Whilst the GMC and the Government’s respective responses to this matter are welcome, it is unclear whether these reviews will actually help individual practitioners to know where they stand in terms of mistakes and liability.

There have been suggestions that the Government may look to create a statutory offence for gross negligence manslaughter rather than relying on the common law offence, which has developed over the years through the courts; this may create more certainty but it would likely take several years to come to fruition.

In addition, the Government may seek to avoid any indication that prosecutors should give greater weight to the demanding environment in which healthcare professionals often work, as this could be construed as an acknowledgement that the NHS is currently under such pressure that the safety of patients is inherently being put at risk.

GPhC’s chief executive, Duncan Rudkin, has announced that the GPhC will actively engage with Professor Williams’ rapid review, acknowledging the concerns that Dr Bawa-Garba’s case has brought to light. In an effort to reassure pharmacy professionals, the GPhC has made it clear that it will not ask registrants to record the content of peer discussions in the reflective process of CPD, but rather to record how such discussions have benefited their practise.

Mr Rudkin expressed that professional development records should not include identifying details of patients, which should alleviate some concerns over the records being used as evidence in disciplinary matters where a patient has suffered harm. Further, he stressed that only the most serious of cases are likely to lead to a GPhC’s fitness to practise investigation, stating that a “single dispensing error would only be taken forward if there were other aggravating factors”.

The GPhC’s standpoint on these matters certainly appears to be more reassuring than the GMC’s unrelenting pursuit of Dr Bawa-Garba, but pharmacy professionals will undoubtedly be eager to follow the development of the GMC’s and Government’s reviews.

As seen and published on the Independent Community Pharmacist for more information on the topic, please contact Richard Hough


Corporate Finance Executive

Job Title
Corporate Finance Executive
Apply by Date
Friday 3rd August 2018
Department/Location
Corporate Finance/Liverpool
Status
Permanent/full-time

Direct application URL : https://brabnersllp.peoplehr.net/Pages/JobBoard/Opening.aspx?v=720e2e38-e47d-43c4-8a6c-031def79cee3

Brabners Private Client and Dispute Resolution teams play significant role in uncovering of Southport Care Home Fraud

Monday 16th July 2018

Following the longest criminal trial ever to be heard in the Liverpool Crown Court David Barton, the former operator of Barton Park Nursing Home in Southport, has today been sentenced to 21 years for multiple theft and fraud convictions.

Mr Barton committed various offences against the elderly and the vulnerable and the isolated.

Brabners represented one of the residents of Barton Park Nursing Home, Katie Willey, and following her death Duncan Bailey, the Head of our Private Client Team, was appointed as executor of her estate. At that time of Mrs Willey’s death she had lived at Barton Park for around 2 years with her husband, Gordon, who suffered from dementia.  They had already paid over £1,000,000 to Barton Park.

Not satisfied with what he had received from Mr and Mrs Willey over 2 years Mr Barton then made sensational claims when Mrs Willey died.  Unbelievably, he claimed to have reached a verbal agreement with Katie Willey in the week before her death.  He claimed that she had agreed to give to him and his companies the vast majority of her and her husband’s substantial wealth which included a valuable classic car collection.  In return they were to receive continuing lifetime care at Barton Park. 

Mr Barton’s’ claims were in excess of £10,000,000 and included nursing care and accommodation fees of £8,500 per week and claims for additional services of around £39,000 per week .  Those additional services were said to include Gordon Willey being taken for drives in Mr Barton’s fleet of high performance sports cars.   Mr Barton aggressively pursued these claims against Mrs Willey’s estate.

Simon Morris in Brabners’ dispute resolution team forensically investigated Mr Barton’s’ claims and discovered that that the accounting records and chronology that Mr Barton relied on to support his claims were an intricate web of inaccuracies and brazen untruths.  Many invoices produced purported to be from people who denied creating the invoices or charging the invoiced amounts. David Barton and at least one member of his staff at Barton Park Nursing Home isolated residents and Mr and Mrs Willey had no meaningful contact with their family or friends once they moved into Barton Park.

Our discoveries were provided to the Merseyside Economic Fraud team and Mr Barton and others were arrested.

Mr Barton continued to press his claims and a spokesman for Barton Park publicised that  “The vicious and malicious allegations against the owners have been raised vindictively to damage the family and their good name and are designed to gain a tactical advantage in an ongoing dispute over unpaid fees which are the subject of legal proceedings. The owners will clear their name and seek damages against those who have made these ridiculous and totally unfounded allegations.”

Brabners then sought out witnesses who knew how Mr Barton operated and secured their assistance in defending his claims.  Mr Barton’s response was to pursue utterly baseless claims against a witness.  For the witness who had bravely volunteered to do the right thing that claim could have meant ruin and loss of their home.  To protect the witness Brabners acted for her in defending those claims at risk on fees and defeated them at trial.  In dismissing those shameful claims His Honour Judge Bird gave judgment that:

“it was clear that he [Mr Barton] had come to court to advance his own self-interest. His evidence was littered with exaggeration and unsubstantiated assertions”.

His evidence was described as ‘incredible’

Eventually, many prosecutions were brought against Mr Barton and the staff from Barton Park.

As a result, Mr Barton, Barton Parks’ general manager, Rosemary Booth, and the bookkeeper, Kiria Hughes, have been convicted of conspiracy to defraud.  Mr Barton was convicted of 5 fraud offences, three counts of theft, one of false accounting and one of transferring criminal property. The offences relate to Barton Park residents over 18 years and their property valued in the millions both before and after their deaths. Mr Barton would become his resident’s next of kin, obtain powers of attorney and become executors and beneficiary of their wills so that he could access their money and their property.

In handing down judgment Judge Steven Everett said that Mr Barton is “one of the most unpleasant people, one of the most dishonest people, one could ever meet”.

8 years of Mr Barton’s 21 year sentence relate to offences against Mr and Mrs Willey.

Reacting to the sentencing, Duncan Bailey, head of our private client team and executor of Mrs Willey’s estate, said:

 “Mr Barton’s 18-year history of cruelty and greed has ruined lives and this sentencing is no more than he deserves.   Today’s announcement is the culmination of five years of hard work from the executors and Simon Morris of our dispute resolution team, to vigorously defend spurious claim and uncover a litany of despicable crimes. That Mr Barton will never be in a position to exploit anyone in this way again is justification for this tireless effort”

Our team of Private Client solicitors is one of the largest in the North West. We provide in-depth care and knowledge and unparalleled breadth of coverage through a Partner-led service.  For more information please visit https://www.brabners.com/practices/private-client

For more information on claims relating to estates and new enquiries please visit willsandprobateclaims.brabners.com.

The sleep-in saga continues: Court of Appeal overturns Mencap case decision
Friday 13th July 2018

The Court of Appeal has this morning ruled that only time spent awake and working during a ‘sleep-in’ shift will count as work time for the purposes of National Minimum Wage.
 

This judgment overrules a previous tribunal decision compelling care providers to fund six years’ back pay for overnight carers, costing approximately £400 million.
 

Overnight carers had previously been paid a flat fee of approximately £30 in accordance with governmental guidance until last year when the Employment Appeal Tribunal ruled that care workers should be paid the National Minimum Wage for every hour of a ‘sleep-in’ shift.


Charities employing overnight carers had argued that the £400 million back pay was unaffordable and could push the care sector towards the brink of collapse.


Whilst today’s judgment will come as a relief to care providers across the country, including many charities operating in the care sector, it will inevitably leave many employees feeling aggrieved.


Unions have criticised the judgment, Unison claiming that it is a “mistake” that would enforce “pittance pay” on care workers.


Unison has advised that it is considering an appeal to the Supreme Court so it may well be the case that the saga continues and it will be interesting to see what impact, if any, it has on HMRC’s Social Care Compliance Scheme (SCCS).

 

 


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ICO investigation into Facebook, Cambridge Analytica and political campaigns
Wednesday 11th July 2018

A progress report published yesterday by Information Commissioner Elizabeth Denham provides insight into the ICO’s investigation of the Facebook/Cambridge Analytica scandal and the use of data analytics in political campaigns.

US social media giant Facebook has been issued by the ICO with a notice of intent to issue a fine of £500,000, for failing to take sufficient measures to safeguard users’ data and for its lack of transparency around the “harvesting” of personal data by third parties.

The notice follows the widely reported scandal involving, amongst others, data analytics outfit Cambridge Analytica, whose parent company SCL Elections Ltd also faces criminal sanctions for its failure to comply with a prior enforcement notice.

Facebook is under investigation for breaches of the Data Protection Act 1998 arising out of its failure to enforce its own policies on how user data may be collected and processed by other organisations. This led to an estimated 87 million users’ personal information being collected through a psychometric analysis app developed by Cambridge University academics, such data supposedly having then been used to psychologically profile and influence constituents in elections around the world.

Whilst a £500k fine would represent the maximum that the ICO may impose, and the largest fine issued to date by the ICO for data protection breaches, it is a fraction of the amount that Facebook could have been fined had the breaches occurred under the new GDPR regime, which came into force on 25 May this year.

According to The Guardian, if imposed, this fine would equate to a mere five and a half minutes’ worth of revenue for Facebook (based on figures from Q1 2018) – a sanction branded as “unacceptable” by privacy campaigners. Had the GDPR been in force at the time of the suspected breaches, Facebook could have been hit with a fine in excess of £1 billion based on 4% of its worldwide annual turnover, although we are yet to see the extent to which supervisory authorities will make use of the new maximum penalties under the EU Regulation.

The progress report also highlights warnings that have been issued to the UK’s 11 main political parties concerning their practices, including purchasing marketing lists without conducting due diligence on the legality of how that data was obtained, failing to provide fair processing information to data subjects and engaging third parties to undertake potentially unlawful analysis and profiling of individuals.

With widespread concerns that the data harvested from Facebook has been used in attempts to sway election results – including on both sides of the Brexit referendum in the UK and in President Trump’s election campaign in the US – by spreading misleading information to targeted individuals, this investigation illustrates the far-reaching impact that data protection breaches, by large data-led organisations such as Facebook, can have.


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Brabners gives GlaxoSmithKline a headache over trade mark dispute

Wednesday 11th July 2018

A family-run business has defeated global drugs giant GlaxoSmithKline in a dispute over an over-the-counter painkiller in a case advised on by our IP team.

Family-run Apollo Generics Limited applied to register its brand ZANAMOL, which is used in relation to pain relieving medication and nutritional supplements, as a UK trade mark in October 2016. This move was opposed by pharmaceutical giant GlaxoSmithKline Consumer Healthcare (UK) IP Limited on the grounds that it was too similar in name and class specification to PANADOL, which is one of the biggest selling brands of paracetamol-based pain relief in the UK. 

GlaxoSmithKline argued that a likelihood of confusion existed between the marks ZANAMOL and PANADOL. But the UK Intellectual Property Office has now ruled in favour of Apollo Generics.

It stated that neither pharmaceutical or healthcare professionals, nor members of the public, would be confused between the marks and said within its judgement: “I cannot see any reasons why the marks are likely to be indirectly confused. Pharmacists and other health professionals are used to differentiating between many similar words, such as ‘hyper’ and ‘hypo’ to give one example. In this case where the beginnings of the marks are different, there is no likelihood of a professional being confused between the two marks.”

Headquartered in Liverpool, Apollo Generics develops and sells prescription pharmaceuticals and over-the-counter medicines to clients including small independent pharmacies, the NHS and regional hospital trusts. Since it was founded in 2006, the business has expanded internationally and now exports to more than 20 countries worldwide.

Hayley Morgan, Chartered Trade Mark Attorney at Brabners, represented Apollo Generics in the dispute. She said: “There are thousands of small and medium-sized businesses right across the UK that would see the might of a multinational such as GSK and not dispute a trade mark challenge, but this judgement shows that small firms have a route to defend themselves in the face of a dispute with a multibillion pound business. Intellectual property is one of the most valuable assets a business can own and it must be protected. This represents a huge win for the Apollo team.”

Richard Rawlinson, managing director of Apollo Generics, added: “We pride ourselves on being an independent, family-run business as it gives us the flexibility to innovate and respond to customer needs quickly and efficiently, and this case shows that while multinational businesses may throw their weight around, smaller businesses can use the IPO to defend themselves. We know how strong our brand and product offering is, and we will always give our competitors a headache if it means protecting our business.”

Off the rails!
Tuesday 10th July 2018

Last week there was an interesting decision in the Court of Appeal to uphold the law of nuisance for private homeowners against railway operators, and the ripples may be felt across the transport sector.

In February 2017, Mr Williams and his neighbour, Mr Waistell brought claims for private nuisance against Network Rail, who own and manage most of the rail track in England, Scotland and Wales. For over 50 years there had been Japanese knotweed growing on a railway embankment reaching high over the bungalows inhabited by the claimants, and Network Rail had known about it.

Japanese knotweed has roots which grow up to 3m deep and 7m in every direction, and is incredibly difficult to eradicate. It was brought to Britain by the Victorians because they thought it looked jolly, but they lost control of it just like in the little shop of horrors and it spread across the entire country. It can seriously damage building foundations, making it a red flag to anyone who is considering investing in a property (and a nightmare for anyone desperate to sell).

When the roots of the plant crept over the boundary and threatened Williams’s and Waistell’s personal paradises, they brought claims in Cardiff County Court for private nuisance on the grounds of encroachment, asserting that Network Rail was liable as the occupier of the land emitting the nuisance, also that it constituted an interference with the quiet enjoyment of their land by reducing its amenity value.

The ruling

The Court originally found in the homeowners’ favour. There was however no evidence that physical damage had been done to the property at that time, so it was decided the claim could not be made out under the encroachment ground. It was, however found that there had been loss of amenity in the land since the homeowners’ could not sell their land at market value if they wished – this constituted a diminution of the asset value. The homeowners’ therefore were awarded damages for loss of quiet enjoyment and in order to fund a treatment package for the knotweed, as well as a small amount for diminution of the building’s value.

On appeal

Network Rail appealed and on Tuesday last week (3 July) the Court of Appeal again found in the homeowners’ favour. It was held, however that the Court in the first instance had erred in its approach. Nuisance is not an action that should be used to protect property as an investment or an asset, but instead to protect the land owner, particularly in their enjoyment of the land. The original Court had approached the tort as a claim for pure economic loss, which was incorrect and a radical reformulation of its purpose and scope. There was no requirement for physical damage to the property, as the risk of future physical damage imposed an immediate burden on the landowners in terms of increased difficulty to develop the land and therefore diminished the utility and amenity of the property. Finally, the heads of nuisance, namely encroachment, interference and physical injury were ‘merely examples’ of violations of property rights, and were elastic terms, which did not always reflect the changing social conditions.

What now?

The impact of this ruling has potential to ‘open the floodgates’ to a wave of new claims in private nuisance. At the same time, it raises the bar for rail and other similar service operators, imposing an obligation to take better care of their land, or else be prepared to pay up. This is a clear statement from the Court that the law of nuisance will be upheld with regard to private landowners. That said, the exact legal scope of this precedent is not yet known, in particular as to whether this is an indicator for tram and highway operators also to heed. There are almost 20,000 kilometres of rail track in the UK and a further 8 light rail and tram systems in operation, not to mention roads and highways. The potential financial burden could be felt across the entire transport sector.

For the BBC news article, see below:

https://www.bbc.co.uk/news/uk-wales-south-east-wales-44697972

Case citations: Williams v Network Rail Infrastructure Ltd; aka Waistell v Network Rail Infrastructure Ltd

(Case analyses available on westlaw):

Court of Appeal – 3 July 2018:                                     [2018] EWCA Civ 1514

County Court (Cardiff) – 2 February 2017:             Unreported

For more information on the topic please contact a member of our Litigation team or Howard Hartley directly. 


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