How deep is the “pool of facts in which it is permissible to fish for the basis of the new cause of action” if a party wishes to benefit from the ‘relation back’ doctrine when calculating limitation periods? The Court of Appeal gives guidance on the meaning of “the same or substantially the same facts” for the purpose of CPR r 17.4(2).

Imagine this: a contractor undertakes to perform certain works by a specified date, and agrees to pay liquidated damages (LDs) if it does not complete by that date (subject to any entitlement to an extension of time). The contractor, through its own fault, is late and does not complete by the specified date. In fact, the contractor is very late and, in the end, the employer terminates the contract before the works are completed (as it is entitled to do under the contract).

• The Court of Appeal has given guidance to insolvent companies about whether to commence an adjudication.
• There is an important distinction to be drawn between a company in a CVA and one in liquidation.
• Parties need to be careful when making general reservations to an adjudicator's jurisdiction.

What's it about?

The Court of Appeal has recently considered two appeals in which the interplay between the construction adjudication process and the insolvency regime was considered; Bresco Electrical Services Limited (in liquidation) v Michael J Lonsdale (Electrical) Limited (see my blog of 28 September 2018 on the TCC decision) and Cannon Corporate Limited v Primus Build Limited.

In a decision to be welcomed by ratepayers, the Court of Appeal in Rossendale Borough Council and others v. Hurstwood Properties (A) Limited and others [2019] EWCA Civ 364 has confirmed that certain types of mitigation schemes are not sufficient to pierce the corporate veil and transfer liability for business rates to the beneficiaries of those schemes.

Liability for business rates

The Court of Appeal decision in Triple Point Technology Inc v PTT Public Company Ltd turns on the wording of that particular contract, but was, in part, unexpected.

This decision does not reflect the generally held view (prior to this case) that liquidated damages will be recoverable until the point of termination at least.

Background

On 26 February 2019, HMRC launched a consultation entitled “Protecting your tax in insolvency”, on the government’s proposal to make HMRC a secondary preferential creditor for taxes paid by employees and customers (the new powers are contained in the proposed Finance Bill 2019-20).

With the gradual opening of energy supply markets allowing new energy providers to challenge the established providers and bring increased competition to the market, the last two decades have seen an increase in smaller energy providers entering the market and sharing a growing customer base. But what happens to the customers when an energy provider becomes insolvent?

When dealing with a debtor or a tenant that has fallen behind with its payment obligations, one of the most cost effective ways of a creditor/landlord reducing its exposure against that entity will be to take advantage of a “self-help” remedy, such as taking possession of the entity’s assets and selling them in repayment of the sums owed.

However, when the entity is the subject of insolvency proceedings, the availability of the various self-help remedies varies depending on:

Regulation 7(1) of TUPE usually makes a dismissal automatically unfair if it is for a reason connected with the business transfer. But what if the reason for the dismissal is actually good old personal dislike and the transfer is just the context in which it surfaced?