News in brief – 15.03.2018

Beware of bogus ACL email

The ACL is aware that some members have received emails purportedly from the ACL about an ‘invoice’. The sender address is clearly not genuine and the recipient is asked to click on a link to access the invoice, rather than an attached PDF.

This is not genuine and the link should not be clicked on.

 

Payment made after part 36 offer “reduced the offer”, says CA

A payment made after a part 36 offer reduced the amount of the offer, the Court of Appeal has ruled.

In Gamal v Synergy Lifestyle Ltd [2018] EWCA Civ 210, the claimant claimed over £150,000 for construction work carried out to a house occupied by the defendant. However, the circuit judge at first instance found that the invoice was fraudulent, with the pair conspiring to enable the defendant to obtain money from a trust fund.

The defendant made a part 36 offer of £15,000 and subsequently paid the claimant £10,000. The judge held that this had reduced the offer to £5,000, which was important because the defendant had been awarded just under £15,000.

The Court of Appeal dismissed the defendant’s appeal, considering in detail its decision in Littlestone v Macleish [2016] EWCA Civ 127. In Macleish, it held that a part payment made by the defendant following an admission of liability had been made as part payment of the part 36 offer, meaning the payment and the offer should not be aggregated.

In the current case, Lord Justice Flaux said: “I consider that the reasoning in Macleish is equally applicable to any payment on account of a claim as it is to an ‘admissions payment’. The second payment of £10,000 in this case was not simply some unattributed payment but, as was common ground and as the judge found, a payment for the works and thus on account of the works or on account of the claim…

“Where such a payment is made, there is a presumption of law that it is also on account of the earlier part 36.”

 

Jackson moves on

Following his retirement from the Court of Appeal last week, Sir Rupert Jackson has returned to his old chambers, 4 New Square, as an arbitrator and adjudicator.

He has also been appointed, along with seven other judges and senior lawyers from the UK, to be justices of the new Commercial Court in Kazakhstan as part of a modernisation programme involving the Astana International Financial Centre (AIFC), with a view to making it the leading financial centre in Central Asia.

Lord Woolf, formerly Lord Chief Justice, has been appointed chief justice of the new court. Sir Rupert has been appointed alongside Sir Robin Jacob, Sir Stephen Richards, Sir Jack Beatson, Lord Faulks QC and Andrew Spink QC as a justices of the court to hear first instance cases in the principal first tier-court and to sit when required in the appeal court. The judicial team is completed by Tom Montagu-Smith QC and Patricia Edwards, who will sit as judges in the small claims court applying a fast-track procedure.

The court opened in early 2018 and the judges will go to Kazakhstan for five main visits a year. All have been sworn in at a ceremony, with the oaths resembling those they have sworn in the UK.

Sir Rupert joined 4 New Square in 1973 and took silk in 1987. He was head of chambers between 1994 and 1996. At the Bar, Sir Rupert was best known for his work in professional liability and construction and engineering.

He is president of the Professional Negligence Bar Association and of the Society of Construction Law.

 

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15 Mar 2018

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