As another eventful year comes to a close - and we wait for the results of the UK general election later this week which will of course have significant implications for English litigation insofar as it determines the question of when or whether the UK will leave the EU - we take this opportunity to look back at what 2019 has had in store from the perspective of the commercial litigator. In this post, we look at key developments relating to a range of topics including jurisdiction (and the impact of Brexit), privilege, contract law, settlement and various aspects of court procedure.
- Jurisdiction, choice of law and enforcement
- Privilege
- Without prejudice
- Disclosure
- Contract
- Class actions
- Costs and funding
- Part 36, settlement and ADR
- Witness evidence
- Other
Jurisdiction, choice of law and enforcement
The most significant question in the area of conflicts of laws over the past year has been the continuing uncertainty over Brexit and how it will affect jurisdiction and enforcement of judgments as between the UK and the EU27. (It is clear that Brexit will have little impact as regards choice of law.)
What happens next will of course depend to a large extent on the outcome of the general election later this week. If the UK leaves the EU on 31 January 2020 on the terms of the draft withdrawal agreement dated 19 October 2019, the current rules on both jurisdiction and enforcement will apply where proceedings are commenced before the end of the agreed transition period (ie the end of December 2020, unless extended). What comes after that will depend on what, if anything, is agreed during that period.
If there is a no-deal Brexit on 31 January 2020, the UK's accession to the 2005 Hague Convention on Choice of Courts Agreements will take effect from 1 February 2020. In that case, if an exclusive English jurisdiction clause is agreed after that date, it should generally be given effect by EU27 courts and judgments given pursuant to it should be enforceable throughout the EU27. The same is likely to be true where an exclusive English jurisdiction clause was entered into pre-Brexit (and after 1 October 2015 when the Hague Convention took effect for the UK as an EU Member State) but this is less certain. If the Hague Convention does not apply, and no other agreement is reached, then each country in the EU27 will apply its own domestic rules to questions of jurisdiction and enforcement. For more detail see this blog post: A no-deal Brexit: The implications for disputes. Although that was written with an eye to a potential no-deal Brexit on 31 October 2019, it applies equally if there is a no-deal Brexit on 31 January or indeed some later date.
We have also published a decision tree on enforcement of English judgments in the EU27 post-Brexit, which is intended to act as a quick reference guide to help determine which rules will apply post-Brexit – whether the current rules in the recast Brussels Regulation, or the 2005 Hague Convention on Choice of Court Agreements, or the local rules in each EU27 country. You can click here to access the decision tree, which has been updated in light of the various extensions to the Brexit deadline.
Apart from Brexit, interesting developments in relation to jurisdiction, choice of law and enforcement include:
- A Court of Appeal decision in January which gave guidance on how to apply the test for establishing the English court's jurisdiction at common law where there is a dispute over the facts relevant to jurisdiction (see Court of Appeal gives guidance on how to apply jurisdiction test laid down by Supreme Court). This seeks to interpret each limb of the threefold test for determining whether there is a "good arguable case" that a relevant jurisdictional gateway applies, as established by the Supreme Court in 2018 - though it may be said that neither the Supreme Court's threefold test nor the Court of Appeal's interpretation of it is straightforward to apply in practice.
- A Court of Appeal judgment in May which considered the proper interpretation of competing jurisdiction clauses (see Court of Appeal finds ISDA jurisdiction clause trumps competing clause in related contract). The decision reinforces the view that jurisdiction clauses within standard form ISDA documentation will not readily be displaced by contrary jurisdiction clauses in related contracts.
- The Hague Conference on Private International Law's adoption in July of the final text of a new treaty on enforcement of judgments: the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, or the 2019 Hague Judgments Convention (see New Hague Judgments Convention: finally adopted but may be some years before impact is felt). The new Convention goes much further than the 2005 Hague Convention, particularly in that it is not limited to judgments based on exclusive jurisdiction clauses. However, it will only apply between those countries that ratify it and bring it into force, and so it is likely to be some considerable time before it has any significant impact.
- A Court of Appeal decision in October which found that the jurisdiction rules in the Brussels regime allow a defendant to be sued in a co-defendant’s domicile even if the sole object of the proceedings against the “anchor” defendant was to bring the foreign-domiciled defendant within the jurisdiction (see Court of Appeal holds that UK anchor defendants can be sued for the sole purpose of establishing jurisdiction against foreign co-defendants). The decision is also important on the question of whether EU jurisdictional rules can be applied by analogy, or “reflexively”, to circumstances falling outside their scope, in particular where the relevant connection is with a non-EU country. This is a point which is of particular interest in the context of a no deal Brexit scenario. The court held that such reflexive application is possible under the Lugano Convention, in contrast to a High Court decision in July which held that there is no such power under the recast Brussels Regulation (see High Court finds there is no power to stay English proceedings to give effect to exclusive jurisdiction clause in favour of non-EU court unless proceedings were commenced first in the foreign court).
After a flurry of decisions relating to legal professional privilege in 2018, most of which were unhelpful from the perspective of those seeking to benefit from the protection of privilege, this past year has seen fewer significant cases on the subject. And the decisions that have come out in 2019 have generally tended toward upholding privilege - so that is good news for those concerned at what has seemed a gradual erosion of privilege under English law in recent years.
In a decision in January, the High Court dismissed an application for disclosure of documents containing a party's underlying instructions to a law firm regarding the holding and transfer of escrow monies (see High Court upholds claim to privilege in respect of underlying instructions to law firm relating to escrow monies). It rejected an argument that the instructions were not confidential, or that privilege had been waived, because the client had authorised the law firm to state what instructions it had been given. The decision also illustrates that legal advice privilege is not limited to requests for legal advice or the provision of advice, but will include the entire continuum of communications between solicitor and client relating to a transaction, provided that they are directly related to the performance of the solicitor's professional duty as legal adviser.
A decision in February demonstrated that, although confidentiality is a prerequisite to a claim for privilege, the courts may take quite a robust view as to when privileged material has (or has not) entered the public domain so as to lose the requisite quality of confidentiality (see High Court restrains claimants from using defendant’s privileged material obtained from third parties in unknown circumstances).
A decision in April showed that privilege may apply where a lawyer has a business advisory role, alongside his legal role, so long as the court is satisfied that the communications for which privilege is claimed satisfy the test of having been made in a relevant legal context. It will, however, be necessary to satisfy the court that such communications were distinguished from those that took place in a non-legal context, which will not be privileged (see Disclosure Pilot: High Court clarifies transitional operation and considers privilege claims).
And in October the Court of Appeal confirmed that the documents of a dissolved company remain privileged, regardless of whether there is anyone who can assert the company’s privilege. The decision establishes that, once a privileged communication comes into existence, that privilege is absolute and remains intact unless and until it is waived by a person entitled to do so (see Court of Appeal confirms “once privileged, always privileged” unless privilege is waived – even if there is no longer anyone who can assert the privilege). At least so far as legal advice privilege is concerned. The position may be different for litigation privilege (see Court of Appeal rejects claim to without prejudice or litigation privilege in communications incorporated into settlement agreement).
There is also an outstanding appeal against one of the unhelpful decisions we reported on in last year's yearbook, the High Court decision in September 2018 which suggests that a regulated entity cannot refuse to provide its client's privileged documents to its regulator in response to a demand under the regulator's statutory powers (see Privilege no defence to notice requiring production of client’s privileged documents to regulator). The Court of Appeal is due to hear the appeal at the end of January 2020.
This year has seen two interesting High Court decisions on the circumstances in which without prejudice communications will be admissible in relation to questions of costs.
- In the first, in April, the court held that by describing the conduct of prior "without prejudice" negotiations in correspondence marked “without prejudice save as to costs”, the parties had agreed to vary the status of those negotiations so that both parties could deploy evidence about them in future arguments about costs (see High Court finds parties agreed to vary application of “without prejudice” rule in subsequent “without prejudice save as to costs” correspondence).
- Then in July, the court held that, although correspondence which was expressly marked “without prejudice” was not admissible on questions of costs, correspondence which was only impliedly without prejudice was admissible for that purpose (see High Court finds impliedly “without prejudice” correspondence admissible on questions of costs).
The main development relating to disclosure this year has been the disclosure pilot in the Business and Property Courts which began on 1 January 2019. The pilot is due to run to the end of 2020 and may well lead to wider reforms to disclosure (see Article published – Pilot of new disclosure rules: A change for the better?) The pilot rules require the parties to agree a list of issues for disclosure, and the court may order that disclosure will proceed on a different basis (or "disclosure model") for different issues. So, for example there may a requirement to disclose only the documents relied on in relation to some issues, but full search-based disclosure (akin to old-style standard disclosure) for others.
The aim of the disclosure pilot is to rein in disclosure and save costs. Anecdoctal evidence suggests that the pilot is resulting in greater use of request-based disclosure in commercial cases, more akin to the approach typically adopted in international arbitration, and the use of varied models for disclosure for different issues in the case. It is not clear, however, whether the pilot is leading to a reduction in disclosure overall (it appears that in some cases the narrower disclosure models are being applied to issues where there are unlikely to be many relevant documents anyway) and, even if it is limiting disclosure to some extent, whether it is saving costs given the additional complexities involved in the pilot.
A survey has recently been carried out on behalf of the disclosure working group to collect views as to the operation of the pilot and whether it is meeting its aims. For those who would like more detail on how the pilot is working in practice, you can access our webinar from November: The Disclosure Pilot – 10 months on: how is PD51U working in practice?
There has been relatively little case law on the pilot so far. Some examples include: a decision in April in which the Chancellor of the High Court clarified that the pilot applies to all proceedings in the Business and Property Courts regardless of when they began, though it does not disturb the effect of disclosure orders made pre-pilot, and also emphasised the culture change intended to be introduced by the pilot (see Disclosure Pilot: High Court clarifies transitional operation and considers privilege claims); and a decision in June which clarified the test for varying disclosure orders and encouraged use of disclosure guidance hearings (see Disclosure pilot: High Court clarifies test for varying disclosure orders and encourages use of disclosure guidance hearings).
Aside from the disclosure pilot, interesting developments this year include various High Court decisions illustrating the court's broad powers to order disclosure even where documents are subject to confidentiality obligations in favour of third parties or where disclosure may put a party at risk of criminal sanctions under foreign law (see High Court orders Tesco to disclose SFO documents in s.90A FSMA shareholder class action and Court of Appeal upholds disclosure order despite risk of prosecution in Iran). But, in contrast, the courts tend to take a strict approach when considering whether to grant permission for disclosed documents and witness statements in English court proceedings to be used for some collateral purpose, including to comply with foreign law obligations (see High Court refuses permission for collateral use of disclosed documents and witness statements to respond to US grand jury subpoena).
In a decision in February, the Supreme Court held that a binding agreement had been reached between a property seller and an estate agent, despite the parties not having specified the circumstances in which the agreed rate of commission would fall due (see Supreme Court overturns decision finding contract incomplete and declining to imply term). The court disagreed with the Court of Appeal's view that the court could not imply a term in order to transform an incomplete bargain into a legally binding contract.
Also in February, the High Court rejected an argument that the European Medicines Agency’s (EMA’s) lease of premises at Canary Wharf would be frustrated as a result of the UK’s withdrawal from the EU (see High Court finds European Medicines Agency lease not frustrated by Brexit). The EMA did not pursue its intended appeal against the decision following a settlement with the landlord. The decision illustrates the uphill struggle likely to face a party seeking to establish that its contracts are frustrated as a result of Brexit, but it leaves open the possibility of establishing frustration where a party can show that Brexit will deprive it of all or substantially all of the benefit of a contract, or mean that it will simply not get what it bargained for.
In a somewhat controversial decision in March, the Court of Appeal held that a clause providing for liquidated damages for delay did not apply where the contractor failed to complete the work (see Court of Appeal finds clause imposing liquidated damages for delay did not apply where work was never completed). Ultimately, as the court emphasised, the application of such a clause to particular circumstances that arise will depend on the wording of the clause itself. The Supreme Court has recently granted permission to appeal against the decision.
Another Court of Appeal decision in March illustrated the strict operation of the common law rule against relying on evidence of pre-contractual negotiations to interpret contracts. The court can take into account pre-contractual material for the limited purpose of understanding the genesis and commercial aim of the transaction as a whole, but not a particular contractual provision (see Court of Appeal reiterates limited scope for reference to pre-contractual material when interpreting contracts).
In July, the Court of Appeal handed down an important judgment clarifying the test for rectifying a contractual document on grounds of common mistake, on which there had been conflicting authority. Unless there is a prior concluded contract, the claimant must prove that the document failed to give effect to a common intention shared by the parties and the parties understood one another to share that intention, the test being a subjective one (see Court of Appeal clarifies test for rectifying terms of written contract for common mistake).
Also this year we have updated and relaunched our popular series of contract disputes practical guides, each with an associated webinar. These are designed to provide clients with practical guidance on some key issues that feature in disputes relating to commercial contracts under English law. Click here to access the first four editions in the updated series (on contract formation, interpretation, pre-contractual statements and good faith obligations), as well as subsequent editions from the original series.
Class actions continue to be an important part of the litigation landscape in England and Wales, increasing steadily in prominence. As this blog post is being written, the preliminary issues hearing in the VW NOx Emissions Group Litigation is underway in the High Court. That has been described as the largest group action to come before the English courts, with some 91,000 claimants.
This year we have published further editions of our series of webinars on class actions in England and Wales, in particular editions on shareholder class actions and on insurance issues in class actions. Click here to access the series. The year saw significant developments in many areas, including shareholder actions, data breach, competition and so-called "class action tourism", each of which is considered briefly below.
Shareholder class actions
In November, the High Court handed down its long-awaited judgment in the Lloyds/HBOS litigation, in which Herbert Smith Freehills acted for the successful defendants to the action. This was the first judgment in a shareholder class action in England & Wales. It provides clarity on some of the most important battlegrounds which arise in shareholder class actions as well as guidance for listed companies and their directors on various key aspects of capital markets and M&A transactions. A briefing is available here, or you can access our December webinar: Class actions in England and Wales: Shareholder actions - The Lloyds/HBOS litigation.
The Lloyds/HBOS decision followed hot on the heels of the first ever Australian judgment in a securities class action, which was handed down in October. A briefing on the Australian decision is available here.
Also in October, the English High Court dismissed Tesco's strike out application in the group litigation brought by its shareholders relating to false and misleading statements regarding its commercial income and trading profits in 2014. The decision is significant in relation to the circumstances in which an issuer may be liable to holders of intermediated securities under section 90A of the Financial Services and Markets Act 2000 (see High Court refuses Tesco’s strike out application in s.90A FSMA group shareholder action).
Data breach class actions
In October, the Court of Appeal held that an action for alleged data breaches using the CPR 19.6 representative action procedure could go ahead, overturning the High Court’s decision which had refused permission to serve the proceedings on the defendant in the US (see Court of Appeal finds claim for damages for loss of control of data can proceed as representative action under CPR 19.6). The decision is significant in finding that damages can be awarded to compensate for an individual’s loss of control of personal data, without the need to establish financial loss or distress, and in establishing that claims for data breaches may be able to proceed on what is effectively an “opt-out” basis under CPR 19.6 which makes it very much easier for claimants to get a financially viable claim off the ground. The decision is, however, unlikely to open the floodgates; it is implicit in the decision that the CPR 19.6 procedure could not have been used if the claimants were seeking damages for financial loss or distress, as these will vary depending on personal circumstances.
Also this year the Supreme Court gave permission to appeal against the Court of Appeal's October 2018 decision in the Morrisons case, in which the company was found to be vicariously liable for the actions of a rogue employee who had unlawfully disclosed the personal information of the 5,500 employees who are the claimants in the case (see Court of Appeal confirms Morrisons vicariously liable for employee's deliberate actions in first successful UK class action for data breach). The Supreme Court is expected to consider important issues relating to the application of the common law doctrine of vicarious liability in the data protection context.
Competition class actions
In April, the Court of Appeal overturned the Competition Appeal Tribunal’s (CAT) refusal to certify the high-profile collective action claim against MasterCard. The claim seeks around £14 billion in damages and the proposed class is estimated to include some 42.6 million people. The Court of Appeal remitted the case back to the CAT for a re-hearing, potentially granting the claim a new lease on life (see Court of Appeal overturns CAT’s refusal to certify the MasterCard collective action claim).
However, the Supreme Court has since granted MasterCard permission to appeal against the decision. The appeal is expected to clarify important issues relating to the “opt-out” regime for competition law cases in the CAT, which was introduced from October 2015 but has seen relatively few claims issued. Applications for collective proceedings orders in three other cases (against, respectively, truck manufacturers, rail companies, and banks involved in the spot foreign exchange market) are stayed pending the outcome of the MasterCard appeal.
Class action tourism
The term “class action tourism” refers to the practice of foreign claimants bringing class actions in (typically) the UK courts against a UK-based parent company, as well as a local operating subsidiary, in relation to alleged breaches in the local jurisdiction. The claimants seek to establish the jurisdiction of the English courts by alleging a breach of a direct duty of care on the part of the UK-based company, who is sued as anchor defendant, and bringing in the foreign subsidiary as a necessary or proper party to that claim.
The Supreme Court's decision in the Case of Vedanta v Lungowe in April (linked here) may have given some encouragement to such actions, as it found that it was arguable that the parent company owed the Zambian claimants a direct duty of care in relation to the alleged acts and omissions of its Zambian subsidiary in operating a copper mine in Zambia. The Supreme Court would nevertheless have refused jurisdiction over the claim against the subsidiary, on the basis that the parent company had agreed to submit to the jurisdiction of the Zambian courts and the dispute was overwhelmingly Zambian in focus and nature, so that Zambia was (prima facie) the appropriate forum. However, the court considered that there was a real risk that substantial justice could not be obtained in Zambia, and therefore the claims will proceed in England.
The Supreme Court has also given permission to appeal against the Court of Appeal's February 2018 ruling that the English court did not have jurisdiction to hear claims brought by large groups of individuals against UK-based Royal Dutch Shell and its Nigerian subsidiary relating to alleged pollution from pipelines and associated infrastructure in Nigeria, as the claimants could not demonstrate a properly arguable case that Royal Dutch Shell owed a duty of care to those affected (see Court of Appeal confirms English Court lacks jurisdiction over claims against UK domiciled parent company in relation to acts of subsidiary abroad).
In October, proposals for reform of the much-criticised regulations governing Damages-Based Agreements (or DBAs), prepared by Rachael Mulheron of Queen Mary University of London and Nick Bacon QC, were published to the broad welcome of the profession (see Redrafted DBA Regulations: a promising basis for reform published in November on Practical Law’s dispute resolution blog). The proposals address many of the key problems with the current Regulations. The drafters are preparing a supplementary report in light of feedback received, which is expected to be published early in 2020. It will then be for the Ministry of Justice to consider the proposals and consult on any changes.
A High Court decision in April considered the application of the so-called Arkin cap, which (when applied) limits the funder’s liability for adverse costs to the amount of the funding provided to the claimant. The court found that this is not a rule to be applied automatically in every case involving commercial funders. Instead, the court retains a broad discretion to decide the extent to which the funder should be liable for adverse costs (see High Court declines to apply so-called Arkin cap to restrict funder’s liability for adverse costs).
Moves toward fixed recoverable costs for lower value commercial cases have also continued this year, with a government consultation published in March (the response to which is awaited) on proposals for an extended fast track where all claims up to £100,000 would be subject to a regime of fixed recoverable costs (see Government consults on introducing fixed recoverable costs for claims up to £100,000). Further, a voluntary two-year pilot of a capped costs regime commenced in-mid January for cases valued at between £100,000 and £250,000. This is running in the London Circuit Commercial Court and the business and property courts in Manchester and Leeds (see Capped costs pilot to start 14 January for claims up to £250,000).
Part 36 offers, settlement and ADR
In August, the United Nations Convention on International Settlement Agreements Resulting from Mediation, commonly known as the Singapore Convention, was signed by 46 countries (see The new Singapore Convention: some practical issues to consider now published in September on Practical Law’s dispute resolution blog). The Convention will come into force six months after at least three signatory states have formally ratified it. Its aim is to establish an international regime for the enforcement of settlement agreements reached through mediation, broadly akin to the 1958 New York Convention for the enforcement of arbitral awards.
Also in August, the Court of Appeal held that the court has power to order an early neutral evaluation by a judge even where one or more parties do not consent to that course (see Court of Appeal orders early neutral evaluation despite party objection). The Court of Appeal did not address the question of whether the court should revisit the question of compulsory mediation, some 15 years after the Court of Appeal’s 2004 decision in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 which found that the court may strongly encourage parties to engage in mediation but may not compel unwilling parties to do so. The Court of Appeal did however comment that “the court’s engagement with mediation has progressed significantly since Halsey was decided”.
There have also been a number of interesting decisions relating to Part 36 offers to settle:
- A Court of Appeal decision in May which confirmed that a defendant could be treated as having made a claimant’s Part 36 offer in respect of its counterclaim, even though the counterclaim had not yet been pleaded (see Court of Appeal finds offer relating to unpleaded counterclaim was valid under Part 36). The court reached its conclusion despite a previous Court of Appeal decision (considered here, and referred to in our Litigator's Yearbook for 2018) which had found that an offer was not valid under Part 36 where it related only to a proposed claim by amendment. It seems likely that this previous decision will be applied quite narrowly in future.
- A High Court decision in June which found that the margin by which a party beats its own Part 36 offer (or fails to beat an opponent's Part 36 offer) is not a relevant factor in determining whether it would be unjust to award the offeror the Part 36 costs consequences in full (see Margin by which party beat own Part 36 offer not relevant in determining costs consequences).
- A Court of Appeal decision in October which confirmed that the court has jurisdiction to order an interim payment on account of costs where a Part 36 offer has been accepted within the relevant offer period, overturning the High Court’s decision that there was no such jurisdiction (see Court of Appeal confirms jurisdiction to award claimant interim payment on account of costs where Part 36 offer accepted within relevant period).
The biggest development this year in relation to witness evidence is the report of the witness evidence working group on the use of factual witness evidence in trials before the Business and Property Courts, which was published last week (see Witness evidence working group: proposals for improvement but no radical change).
The report does not propose radical change but makes a number of recommendations for improvement, including measures to reinforce compliance with current rules such as developing an authoritative statement of best practice, beefing up the statement of truth, and introducing a solicitors’ certificate of compliance, as well as greater use of costs sanctions and judicial criticism where there is non-compliance. There is also a recommendation aimed at encouraging the use of examination-in-chief on specific issues/topics where appropriate – an option which is available currently but is rarely used. Perhaps the most controversial recommendation relates to the potential introduction of a pre-trial statement of facts setting out a party’s factual case, in addition to witness statements - though the recommendation is merely that individual courts should give further consideration to the potential introduction of such a statement.
The recommendations have been endorsed in principle by the Board of the Business and Property Courts. The working group will conduct further work in the coming months to include further consideration of the detailed substance, form and timing of any changes.
In a decision in March, the Supreme Court has resolved the previous uncertainty as to the test for setting aside judgment on the grounds that it was obtained by fraud. Overturning the Court of Appeal’s decision, it confirmed that there is no need to demonstrate that the evidence of fraud could not have been obtained with reasonable diligence at the time of the earlier trial (see Supreme Court clarifies test for setting aside judgment for fraud).
In April, a number of changes to the Civil Procedure Rules came into effect with the intention of reinforcing the principle of open justice and clarifying how it operates in the civil courts. The amendments include emphasising the general rule that hearings are to be held in public, and clarifying the test for when a court may direct a private hearing or party/witness anonymisation (see Open justice: rule changes to increase transparency in the civil courts published in March on Practical Law’s dispute resolution blog).
In July, the Court of Appeal upheld a decision that there was no good reason to validate service retrospectively where the claimant’s solicitors had purported to serve proceedings on the defendant’s solicitors shortly before the claim form expired without first confirming that the solicitors were instructed to accept service (see Court of Appeal confirms no duty on solicitor to warn opponent of error in serving claim form). It disagreed with the Master's view that the defendant’s solicitors were in breach of a duty to the court to help further the overriding objective, and had engaged in “technical game playing”, by not drawing the error to the claimant’s attention.
Also in July, the Supreme Court held that there is no limit to the court’s discretion to grant non-party access to court documents in accordance with the guiding principle that justice must be done in the open (see Supreme Court clarifies broad scope of court’s discretion to grant non-party access to court documents). The court disagreed with the Court of Appeal’s decision that there was no inherent jurisdiction to permit non-parties to obtain trial bundles generally, or documents merely referred to in skeleton arguments/written submissions, or in witness statements/experts’ reports, or in open court.
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Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.