In Cruz City 1 Mauritius Holdings v Unitech Ltd the Commercial Court recently considered whether it had jurisdiction to grant a freezing order to assist in the enforcement of an arbitration award against subsidiaries of the first defendant, which were incorporated outside the jurisdiction and had no assets or other presence in England.
A recent High Court judgment clarifies the application of the 'wills and succession' exclusion under Article 1(2) of the EU Brussels I Regulation. It confirms that a dispute arising in the context of a succession or inheritance situation will not necessarily fall within the Article 1(2) exclusion; rather, the court will consider the principal legal and factual issues of the claim in determining its jurisdiction.
The High Court has held that 'additional representations' in a Schedule to the International Swaps and Derivatives Association Master Agreement relating to a counterparty's ability to enter into derivative transactions were enforceable warranties. The court held that breach of these warranties led to a contractual estoppel. This novel application of contractual estoppel is an important precedent for finance lawyers and banking litigators.
In Energy Venture Partners Ltd v Malabu Oil and Gas Ltd the Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages. Its endorsement of these criteria provides helpful guidance for applicants seeking such fortification.
In Northrop Grumman Mission Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd (No 2) the High Court found that the defendant had been unreasonable in its refusal to mediate. However, as it had made a without prejudice save as to costs offer that the claimant had failed to improve at trial, the usual rules on costs applied. The defendant was awarded costs on the standard basis with no reduction.
In Rochester Resources Limited v Lebedev the Commercial Court rejected an application for an injunction restraining New York court proceedings in favour of arbitration. This case is a reminder of the importance of carefully and precisely drafting agreements to arbitrate.
In Unaoil Ltd v Leighton Offshore Pte Ltd the Commercial Court considered whether a liquidated damages clause was an unenforceable penalty following a reduction of the contract price by amendment. The case shows that where a contract is amended in a relevant respect, it is important that any liquidated damages clauses be revisited and, if appropriate, adjusted commensurately.
The High Court, in its recent judgment in Brett v The Solicitors Regulatory Authority, has upheld the findings of the Solicitors Disciplinary Tribunal in relation to a solicitor's breach of the duty not to mislead the court and to act with integrity. The lord chief justice warned that solicitors found to have misled the court could receive "exemplary and deterrent" punishment.
The recent Supreme Court decision in FHR European Ventures LLP v Cedar Capital Partners LLC concerned the enforcement rights which are available in the English courts to the principals of fiduciary agents where those agents have made unauthorised profits from secret commissions or bribes. The nature of the rights which arise in this situation is a subject with a considerable history of debate.
Following recent Supreme Court decisions, the principles governing contractual interpretation under English law are reasonably well established. As a recent Court of Appeal case demonstrates, the difficulty comes in applying them to particular factual situations. The court's decision clarifies that commercial considerations should infuse any discussion of contractual interpretation.
The Court of Appeal has delivered an important judgment on the meaning of a company's 'central administration' under the EU Brussels I Regulation. The decision confirms that it is not permissible for claimants to pursue within the European Union extra-EU subsidiaries of EU-domiciled groups.
In Baturina v Chistyakov the claimant – reportedly Russia's richest female oligarch – challenged a ruling that her claim against the defendant should be stayed in favour of the Russian courts. The Court of Appeal considered whether the stay should be set aside. This case illustrates the complexities that can arise in making claims based on the reflective loss principle, which is a relatively unclear and developing area of English law.
Under English law, legal professional privilege permits a civil litigant or a defendant in criminal proceedings to withhold from the other side documents subject to the privilege. Although privilege is a well-established concept, its boundaries are sometimes difficult to determine in practice. A recent High Court judgment provides insight into the so-called 'fraud exception' to privilege.
Generally under English law, once a limitation period has expired it is not possible to bring a new claim that is out of time. However, in certain circumstances the courts may grant permission for a statement of case to be amended to introduce a new cause of action which would otherwise be time barred. A recent Court of Appeal decision provides a useful reminder of the threshold that must be met in order to gain such permission.
In a recent judgment the Court of Appeal found compelling reasons to require the defendant to pay the judgment sum and other amounts into court as a condition of its pursuit of an application for permission to appeal. The case serves as a reminder of the issues that the court will consider when determining whether to impose conditions on a party before considering an application for permission to appeal a first-instance decision.
In the latest instalment in the long-running dispute between the Tchenguiz brothers and the Serious Fraud Office, the High Court considered the claimants' rights to use documents disclosed in English proceedings in concurrent proceedings in Guernsey. The court confirmed the high bar that must be met when applying for permission to use documents for purposes other than the proceedings in which they were disclosed.
The Commercial Court recently dampened the Fiat car group's hopes of receiving a loss-of-profits pay-out from Lotus by dismissing its application for summary judgment on a claim for repudiatory breach of contract. In doing so, the Commercial Court confirmed that when assessing damages, a defendant will be required to fulfil only the minimum contractual obligations and a claimant will not get more than it bargained for.
In Garritt-Critchley the High Court ordered the defendants to pay the claimants' costs on an indemnity basis after a continuing and unreasonable failure to engage with mediation before then accepting a Part 36 offer late following trial. The case clearly demonstrates the importance that the court places on engaging in mediation, which extends to the communications relating to the process.
The Court of Appeal recently considered whether a dentist's actual and threatened breach of a term in his contract with his practice principal, which required monthly payments for use of the practice, was a repudiation of the contract. The decision reinforces that a party claiming repudiation by the actual or threatened breach of an innominate term must adduce clear evidence of the actual and anticipated effects of the breach.
In proceedings with multiple defendants in which the claimant had obtained default judgment against Defendant A, Defendant B (which had statutory joint liability for A's actions) was not bound by an issue estoppel raised by the default judgment against A. Further, B was entitled (notwithstanding substantial delay on its part) to set aside the default judgment which had been obtained against A.
The Court of Appeal recently considered a claim for compensation under a cross-undertaking in damages by respondents to a wrongfully obtained freezing injunction. In doing so, the court gave useful guidance on how the level of such compensation should be determined and the principles governing the process.
In Starbev GP Ltd v Interbrew Central European Holding BV claimant Starbev and defendant Interbrew Central European Holding – a subsidiary of Anheuser Busch InBev – sought declaratory relief from the High Court for various issues relating primarily to points of contractual construction arising from the sale of the latter's business to the former. The court's judgment provides a masterclass on contractual interpretation.
The Supreme Court decision in Clyde & Co v Bates van Winkelhof has provided welcome clarification of the scope of whistleblowing protection for partners and members of limited liability partnerships (LLPs). The question for determination was whether the claimant LLP member could be considered a 'worker' under the Employment Rights Act. If so, the claimant could claim protection from detriment.
A recent case before the Commercial Court confirms that the powers granted under Section 68 of the Arbitration Act will be exercised sparingly by the courts. A challenge under Section 68 must meet a high hurdle and the vast majority of applications fail. Applicants may be tempted to use Section 68 as a way of indirectly challenging the court's findings of fact, but this is a wholly inappropriate approach.
The Supreme Court – reversing the Court of Appeal's decision – recently upheld the Competition Appeals Tribunal's finding that the limitation period for bringing a follow-on damages claim under Section 47A of the Competition Act cannot be extended against a non-appealing addressee by virtue of appeals by other addressees of a European Commission decision.
A recent interim decision in the Serious Fraud Office's (SFO) continuing battle with the Tchenguiz brothers has confirmed the court's position in relation to the use in legal proceedings of privileged documents that were mistakenly disclosed during the course of the proceedings. More broadly, the case illustrates the difficulty for the SFO to pursue its stated objective – investigating fraud, bribery and corruption – with limited resources.
The Commercial Court recently considered whether it had jurisdiction over a claim against a firm of German lawyers. The case offers an interesting clarification of the rules for jurisdiction over tort claims when the damage pertains to the loss of a contractual right. It may also be a sign that the court is increasingly willing to expand the application of Article 5(3) of the EU Brussels Regulation for the establishment of jurisdiction.
In the recent Vitol Bahrain EC v Nasdec General Trading decision the Commercial Court reaffirmed the need for caution when considering whether to bring foreign defendants within the jurisdiction of the English courts. The judgment illustrates the limitations of the necessary and proper party head of jurisdiction and the English court's reluctance to extend its jurisdiction to claims to which it has no territorial connection.
The Supreme Court's decision in Clyde & Co v Bates van Winkelhof is eagerly awaited by partnerships, limited liability partnerships (LLPs) and those who advise them. The appeal concerned two preliminary points of importance: the scope of whistleblowing protection for partners and members of LLPs, and whether such protection can extend to an individual who principally works outside the United Kingdom.
In Bailey v Angove's Pty Limited the Court of Appeal overturned a decision of the High Court, and so permitted the liquidator of an insolvent agent to recover funds due to it from end customers despite the agency having been terminated. Moreover, the court's findings on constructive trust represent a significant narrowing of the availability of that argument for creditors faced with an insolvency.
The Court of Appeal recently determined that an 18th-century masterpiece by Sir Joshua Reynolds was an item of 'plant or machinery' and a 'wasting asset', no different from other trade equipment such as tables, chairs and cars. As a result, the gain in value realised on its sale was exempt from capital gains tax. While this decision seems counterintuitive, it rests on a close analysis of the relevant legislation.
The High Court has allowed an appeal of a decision on a defendant's liability for costs following its acceptance of the claimant's offer under Part 36 of the Civil Procedure Rules. The High Court's ruling confirms that in cases involving multiple defendants, an individual defendant may, on acceptance of a Part 36 offer, be liable for non-specific common costs in addition to the costs attributable to the proceedings against it.
A recent Court of Appeal decision has provided welcome clarification on the way to dissolve a traditional partnership where one party has repeatedly breached the partnership agreement. However, practitioners are likely to be more interested in the judge's obiter comments regarding the place of repudiation, affirmation and the 'last-straw' doctrine in partnership law.
Three recent High Court decisions illustrate the continued trend towards firm rulings relating to relief from sanctions, following the much-publicised changes in April 2013 and the seminal case of Mitchell v News Group Newspapers Ltd. Relief was denied in all three cases. This firm approach may materially change the course of proceedings where rules and orders are not respected by parties.
The Court of Appeal recently considered the application of the EU Rome II Regulation on the law applicable to non-contractual obligations. In particular, it examined the extent to which Rome II imports foreign law and procedure into the English courts in cases where that regulation applies, and the scope and meaning of 'law' in that context.
The Supreme Court recently considered whether a party could be liable for a negligent pre-contractual misrepresentation in circumstances where the party to which the representation was originally made was not the ultimate contracting party. The result followed from a proper appreciation of the continuing nature of representations and a careful analysis of the facts.
A recent case illustrates the high threshold that claimants must overcome in order to resist an inquiry into damages following the discharge of a wrongly obtained injunction. The court had to consider whether the defendants' damages claim would fall within the rules on reflective loss – that is, where a loss claimed by a shareholder is merely reflective of a loss suffered by the company, which is not recoverable.
A recent Commercial Court case reinforces the importance of providing for a governing law in contracts and the need to make this expressly clear should the parties wish that an arbitration agreement be governed by a different law from the law of the seat. Careful consideration of the dispute resolution provisions in a contract at the drafting stage is likely to be a more efficient use of time and money than a satellite dispute.
High Court proceedings are governed by the overriding objective of enabling the court to deal with cases justly and at proportionate cost. In appropriate circumstances, this will involve directing that a trial be split on the issues of liability and quantum. However, in a recent case the judge ruled against a split trial, despite the claimant's assertion that costs of around £1 million in expert evidence might be saved by this course of action.
The Supreme Court has allowed an appeal to alter mirror wills, signed by the wrong testators, so that the intended heir may inherit. Lord Neuberger held that the wills should be rectified on the basis that a 'clerical error' had occurred. The judgment has extended the scope of rectification of a will and brought the approach to interpreting a will further into line with the courts' approach to contractual interpretation.
In what is believed to be the first decision on the issue, the High Court has decided that a claimant may serve an individual defendant who is a director of a UK company at any address shown as his or her current address in the Companies House register, despite the director claiming to be resident outside the jurisdiction. The court held that this service method operates as a parallel code to the Civil Procedure Rules.
In a recent High Court case the claimant successfully challenged the defendant's claim to withhold inspection of two categories of document on the grounds of litigation privilege. The case is a useful articulation of the relevant principles governing litigation privilege and a helpful reminder of how difficult it is to protect pre-litigation fact-finding exercises from being disclosed during the course of litigation.
The Court of Appeal recently upheld a High Court decision to strike out a second claim brought against joint tortfeasors that were not parties to an earlier claim which had been compromised by a settlement agreement. The case is a stark reminder to claimants that are the victims of a jointly committed tort to bear the rule on release of joint tortfeasors in mind when compromising their claim.
The Court of Appeal recently upheld the High Court's decision in Makdessi v Cavendish Square Holdings BV allowing committal proceedings for contempt of court to be brought against Mr Makdessi for making false statements in his pleadings. This judgment is an important reminder to individuals that they must read statements of case in full before signing the statement of truth.
The High Court recently considered the nature and extent of the duty of care owed by a securities lending agent when managing a client's portfolio. The judgment, which is likely to have implications for the securities lending industry, underscores the need for securities lending agents to act fairly when communicating with their clients.
The High Court recently ordered a Texas-based claimant to pay security for costs. While such applications are common, this decision is of particular interest as the court departed from a previous High Court decision which had sought to establish an exception to the Court of Appeal precedent that foreign residence in a country not covered by the Brussels/Lugano regime is insufficient to justify the exercise of powers to order security for costs.
The Supreme Court has delivered an important decision on the application of Articles 27 and 28 of EU Regulation 44/2001 in the English courts. The decision has once again emphasised the importance that the English courts in particular attribute to contractual jurisdiction clauses and their willingness to give them wide effect.
The High Court recently considered a preliminary issue regarding service of proceedings in a breach of warranty claim. In holding that proceedings had been validly served, the court made a number of interesting comments, particularly in relation to the service provisions in the Civil Procedure Rules and notice generally. The case underlines the importance of clearly specifying how documents are to be served and notice given.
The court's discretion to stay proceedings in a recent case under Article 28(1) of the Brussels Regulation was triggered by the existence of prior proceedings in another EU member state, which the court concluded was a 'related action' under the regulation. The court refused to exercise this discretion, holding that the existence of an exclusive jurisdiction clause in favour of the English court was a significant factor against the grant of a stay.
A recent Court of Appeal decision has extended the guidelines set out in Halsey v Milton Keynes General NHS Trust concerning whether an unreasonable refusal to engage in alternative dispute resolution (ADR) justifies the imposition of a costs penalty. The court held that failure to respond to repeated invitations to participate in ADR is inherently unreasonable and should attract a costs penalty.
The High Court recently considered the factors relevant to an application for relief under amended Civil Procedure Rule 3.9. The court concluded that doing justice between the parties remained of overriding importance, notwithstanding the purpose of the 2013 Jackson reforms to encourage strict compliance with rules, orders and directions. The decision represents an unexpected departure from the hard-line approach on compliance failures.
The High Court recently considered the extent to which pleadings can be amended to introduce new claims out of time. The decision is a useful insight into the process that the court must undertake in considering whether it is appropriate to allow the introduction of a new cause of action after expiration of the limitation period.
The Court of Appeal recently handed down judgment in Credit Suisse AG v Arabian Aircraft & Equipment Leasing Co EC. The case yielded a number of noteworthy findings, both at first instance and on appeal. The judgment provides a salutary lesson to litigants that omissions in the pleadings can have serious consequences, and that the court will (or at least should) confine its consideration to the pleaded cases.
The High Court decision in Proton Energy Group SA v Orlen Lietuva is a warning to all litigators to choose their expert witnesses wisely. Both parties in the case were criticised for their choice of expert witnesses, but for very different reasons. Ultimately, the case provides a dual lesson of the dangers of both not knowing the expert well enough and knowing the expert too well.
The Court of Appeal recently considered whether a contract contained a general duty of good faith or a duty limited to two specified purposes. The court's decision contrasts with the High Court decision in Yam Seng, although the Court of Appeal did not expressly disapprove it. It now looks as if the scene is set for further litigation exploiting the uncertainty as to implied duties of good faith.
The High Court recently considered the 'misnomer' principle and the circumstances in which a contract that on its express terms is made with one company can be construed as having instead been made with a different company. The case serves as a reminder that principles of construction can be invoked to remedy mistakes in contracts only where it is the language, and nothing more, that has gone wrong.
The High Court recently considered whether the Royal Bank of Scotland (RBS) was liable to an investor, Torre, in relation to a structured lending facility arranged by RBS for Dunedin Property Industrial Fund (Holdings) Limited. Dunedin went into administrative receivership in late 2008, which led to significant losses to the lenders in the finance structure, including Torre.
The Court of Appeal recently clarified the circumstances in which Norwich Pharmacal relief is available. The decision emphasised the necessity, in order to fall within the jurisdiction of the relief, for the relevant third party to be mixed up or involved in the wrongdoing that it has facilitated. The further delineation of the jurisdiction underscores the need for parties to consider carefully the relevant wrongdoing in a given case.
The Court of Appeal recently considered the circumstances in which individuals who control companies owe fiduciary duties to third parties that deal with their companies in the context of a joint venture agreement, and whether causing a company to incur legal costs to defend a claim may itself amount to a breach of duty. The case highlights that joint ventures can impose greater responsibilities on the parties than they bargained for.
A recent High Court decision underlines the importance for lawyers of taking care when settling disputes. The court considered whether a binding settlement agreement had been made where the parties to a dispute concerning a commission payment had exchanged solicitors' letters agreeing to settle the dispute, but had been subsequently unable to agree the terms of formal settlement documentation to record their agreement.
A recent High Court judgment serves as a useful clarification of the meaning of 'central administration' in the context of a company's domicile for the purposes of the Brussels I Regulation, and specifically in relation to the court's approach where a company is registered abroad, but where there is influence by a parent company in England.
The High Court recently gave judgment on an appeal against a master's costs decision involving a non-party costs order. The judgment is interesting for its comprehensive overview of non-party costs orders and its comments relating to the court's wide discretion as to costs in general. The decision is perhaps an example of the court's increasing appetite to encourage all parties to act in the most cost-effective manner possible.
The Supreme Court recently considered the requirements for service of English proceedings abroad, particularly on prospective defendants based in a state that is not a member of one of the international conventions governing service of proceedings. The court set down a clear marker that the procedural rules governing service of English proceedings in those circumstances are to be given a purposive interpretation.
The Supreme Court has clarified the basis on which a court should evaluate the remuneration (or quantum meruit) for the value of a person's services based on the unjust enrichment of the person receiving the services. The issue that the court had to consider was the valuation of the restitutionary award – that is, the basis on which a claim for payment of services should be calculated.
The Court of Appeal in Force India has provided some helpful guidance on breach of confidence in the commercial arena. Among other things, the decision provides a useful reminder of the rules relating to repudiation of a contract, the admissibility of hearsay evidence and the narrow basis on which the Court of Appeal can revisit the underlying facts.
A recent Supreme Court judgment clarifies the powers of the court to grant anti-suit injunctions against proceedings commenced overseas in breach of an arbitration agreement, as well as the legal basis of such powers. The court had to determine its power to prevent the commencement or continuation of foreign proceedings brought in a jurisdiction outside the European Union when a valid arbitration agreement exists.
The recent High Court decision in Re UKLI Limited provides a useful summary of both the factors that the court will take into account when determining whether an individual is a shadow director or a de facto director and the differences between these two concepts. The case in question concerned the disqualification of a director, but the principles have a wider scope of application.
The Supreme Court recently issued its judgment in Prest v Petrodel Resources Limited, in which Michael Prest was ordered to transfer to his former wife properties held by companies owned and controlled by him as part of a £17.5 million divorce award. The decision may well assuage the concerns of corporates insofar as it adheres to long-held company and trusts law principles.
Costs budgets are submitted at the beginning of a case, when it is difficult to know the likely course of events. Thus, providing for contingencies makes sense. If a particular contingency does not occur, the budgeted costs for that event should not form part of the overall budget – so it is difficult to see what issue can be taken with budgeting for contingencies. However, as a recent case shows, further guidance will be welcome.
The Court of Appeal recently upheld the High Court's decision to refuse permission to amend an existing claim to include allegations of intentional wrongdoing. Although the court found that there was an attempt to plead a new cause of action by the introduction of intentional wrongdoing, it left open the possibility of some of the proposed amendments being incorporated into the reply as part of a rebuttal to the defence.
In two recent cases involving fiduciaries exercising powers on the back of professional advice that unexpectedly generated tax liabilities, the Supreme Court endorsed the distinction between excessive execution (ie, trustees operating beyond their powers) and inadequate deliberation of a decision within their powers. As such, trustees can no longer rely on their own failings and those of their advisers to undo their actions.
In a recent case the Court of Appeal maintained and protected the finality of litigation, which would be undermined if changes in common law could be taken into account retrospectively, as the respondent in a had claimed. The court dismissed this argument, noting that to accept it would mean that a litigant's challenge to the legality of an order could prevent enforcement until recent legal developments had been considered.
While the courts are increasingly willing to give effect to broader notions of business common sense in construing commercial agreements, a recent Court of Appeal decision highlights the limits of this approach. Despite the thrust of recent decisions, it provides an instance of the written word trumping an arguably more intuitively commercial construction.
The Court of Appeal recently confirmed that a chief executive's announcement made orally to staff on behalf of the board amounted to a contractual commitment to a minimum bonus pool and the company was obliged to maintain the bonus pool for distribution among staff. This decision provides guidance as to the circumstances in which an oral statement can suffice to give rise to binding contractual obligations.
In Royal Bank of Scotland plc v Highland Financial Partners LP the Court of Appeal set aside a judgment on the grounds that it was obtained by fraud. The decision is understood to be the first domestic case in which a UK bank has had a judgment set aside on the grounds that it was obtained by fraud, and provides a good example of when a summary judgment may be set aside on these grounds.
In Eco 3 Capital Ltd v Ludsin Overseas Ltd the Court of Appeal confirmed that there is no separate, standalone requirement to prove an intention to deceive in order for a defendant to be liable under the tort of deceit. The case involved a claim for fraudulent misrepresentation arising from the claimant's loss of £2 million in a failed property investment scheme.
In a recent case the Court of Appeal confirmed that in certain situations claimants may recover heads of loss that were not expressly claimed in their pleading. However, the court's decision does not mean that claims need not be properly pleaded. The court also made general comments about how notice of matters to be considered at trial may be given.
The Commercial Court recently considered a claim for breach of duty in recommending investments on which substantial losses were incurred following the claimant's failure to meet a margin call, and the distressed sale of the investments, in the wake of the collapse of Lehman Brothers. The decision confirms the focus in claims on the suitability of the recommended product and whether adequate explanations of the risks were provided.
The recent case of Active Photonics illustrates how the court will apply its discretion to grant relief from sanction where a party has failed to comply with an 'unless' order. The court usually issues an unless order when a party has failed to comply with previous case management directions. Although such draconian measures are seldom taken, the outcome of this case was unsurprising.
A recent High Court decision provides positive news for claimants that rely on after-the-event (ATE) insurance as a means of litigation funding. The case highlights the need for a robust policy that is suitable for the claimant's purpose. Defendants should consider an ATE policy carefully and determine whether there are circumstances in which there is a real risk that an insurer could avoid the policy.
Exclusion clauses – by which a party excludes or restricts a liability or duty that would otherwise arise – are common 'boilerplate' provisions in commercial agreements. A recent Court of Appeal judgment provides valuable insight into the court's approach to the construction of such clauses. It also highlights the importance of precise drafting to the effective incorporation of expansive limitations and exclusions.
A recent High Court decision will in all likelihood signal a substantial shift in the approach of the courts towards the dealings of contracting parties. The judge stopped short of suggesting that English law is ready to acknowledge that a requirement of good faith be implied in all commercial contracts, but he did give limited guidance as to the circumstances in which it may properly be implied.
The Court of Appeal recently confirmed that the classic test for remoteness of damage established in Hadley v Baxendale remains good authority. However, the court noted that although this continues to be the standard test for remoteness, the House of Lords decision in The Achilleas may in some cases require further consideration to be given to a contract's commercial context.
The Supreme Court has confirmed that allowing the corporate veil to be pierced so as to treat a third party as a co-contracting party is contrary to both authority and principle. Regarding the issue of appropriate forum also raised in this case, the court held that it is inappropriate for matters involving a balancing exercise by a lower court to be re-opened unless the lower court erred in principle.
In a recent decision the High Court ruled that the manner in which expert evidence should be given is to be determined by reference to the procedural law of the forum and not the applicable substantive law governing the dispute. The decision is an example of the inherent difficulties that can arise when litigating in one jurisdiction under the substantive law of another.
The Supreme Court recently concluded that tax advice provided by accountants is not protected by legal advice privilege. Thus ended a long-running battle for the accountancy profession – or did it? The court has invited Parliament to intervene if change is required, although any such change is likely to be some way off.
A number of customers have brought legal proceedings against banks for alleged mis-selling of interest rate hedging products. The first reported English court decision on this issue illustrates the difficulties that claimants will face if they pursue mis-selling litigation rather than relying on the Financial Services Authority or the Financial Ombudsman Service.
The claimant in a recent High Court case sought judicial review of the foreign secretary's decision to provide intelligence to US authorities for use in drone strikes in Pakistan, alleging that it put government employees at risk of committing criminal offences. The court clarified that the principle that courts will not sit in judgment on the sovereign acts of a foreign state is robust enough to withstand this attempt to side-step it.
In a recent case, two corporate defendants and a director of both companies were found to be in contempt of court and were fined after the companies failed to comply with an injunction concerning the removal of cigarette bins from certain properties within the City of Westminster. The case is a useful reminder to parties that where injunctions are not complied with, proceedings for civil contempt may be appropriate.
A recent High Court case provides a useful reminder of the important first hurdle that applicants must clear if they are to obtain interim relief in English courts in support of foreign proceedings under Section 25 of the Civil Jurisdiction and Judgments Act 1982. The case demonstrates that although relief under Section 25 provides a potent tool in a claimant's armoury, obtaining such relief is by no means a mere formality.
The High Court recently granted claimants relief from sanction for failing to comply with an 'unless' order involving disclosure. The judge based his decision on the balance of prejudice that would be caused in striking out the claim. The judge's decision was surprising, considering that he had referred to Lord Justice Jackson's comment that indulgence should not be granted to litigants which breach unless orders.
The Supreme Court has upheld an application by the Rugby Football Union for an order requiring a ticket sales website to disclose details of individuals who used the site to sell tickets to rugby matches at Twickenham Stadium at inflated prices. The decision clarifies the balancing exercise that the court must undertake when considering Norwich Pharmacal disclosure applications.
The High Court recently considered the operation of Section 51 of the Sale of Goods Act 1979, which prescribes the measure of damages for wrongful non-delivery of goods and the circumstances in which an "available market" for the goods exists for the purposes of that section.
A recent Court of Appeal decision demonstrates the ongoing (if perhaps diminishing) role played by the principles that apply to the interpretation of exclusion clauses, which were laid down in Canada Steamship. The decision also acts as a reminder to take care when drafting exclusion clauses: if parties wish to exclude liability for negligence (or even intentional wrongdoing), they should ensure that they use clear, unambiguous wording.
In a recent High Court case, the claimants applied for various interim orders against the defendants on the basis that use of certain information might grant the defendants an unlawful advantage. The court's decision suggests that parties should carefully consider the appropriateness of interim relief with regard to documents and the manner in which it is sought.
A recent High Court decision provides a lesson to any successful applicant for injunctive relief: it should not leave the court believing that it has closed the door on its duty of full and frank disclosure. On the contrary, that duty merely begins on the application to court for the injunction, and the applicant that does not recognise its continuing hold is liable to lose its relief.
In ParkingEye v Somerfield Stores Limited the Court of Appeal considered the doctrine of illegality in contract law. The court dismissed an appeal by the defendant that it be granted a complete defence on that basis, finding that it would be disproportionate to deny the claimant a remedy. This case is the first in which the concept of proportionality has been expressly applied when considering the defence.
A recent case is an interesting commentary on the interplay between related arbitral and court proceedings. The abuse of process doctrine can apply where proceedings amount to a collateral attack on a previous arbitral award, but in the absence of special circumstances of the type present in this case, bringing court proceedings against an entity not party to a previous arbitration will not amount to abuse of process.
The Court of Appeal recently upheld a High Court decision that a breach of warranty claim was out of time, because the claimant had not complied with the contractual notice provisions. The Court of Appeal confirmed the first instance finding that the notice clause was non-exclusive, despite providing for two specific methods of service. Accordingly, other methods of service could be used.
In 2008 Lord Justice Jackson was appointed to lead a wide-ranging review into the costs of civil litigation. Nearly four years on, some of the recommendations from the Jackson Review have already been implemented. However, the majority of the changes will come into force in April 2013. This will be the most significant shake-up of the civil justice system since the implementation of the Woolf reforms.
The Court of Appeal recently overturned a High Court decision and held that an investor was entitled to recover substantial damages for loss of capital arising from market movements from HSBC as he had specifically sought to protect himself from the risk of market movement at the time he entered into the investment
A Supreme Court decision concerning the scope of a government's immunity from execution of a judgment under the State Immunity Act 1978 has confirmed that, when determining whether to apply the 'commercial purposes' exception to state immunity, the origin of the property against which execution is sought is irrelevant, even if it is commercial.
In Standard Chartered Bank v Ceylon Petroleum Corporation the Court of Appeal considered the capacity of a statutory corporation to enter into derivative contracts linked to the market price of oil, and whether the distinction between 'speculative' and 'hedging' or 'risk management' transactions was relevant in this context.
A recent decision sets limits on the permissible use of collective action clauses and the related concept of the exit consent procedure. It still allows issuers to construct exit consent procedures that give meaningful inducements to facilitate the orderly restructuring of debt obligations, but protects against egregious abuse.
Part 36 of the Civil Procedure Rules provides a statutory procedure for settlement that is a self-contained code. Parties to litigation are free to make settlement offers outside the terms of Part 36, but a recent decision by the Court of Appeal provides a salutary reminder that a party which fails to make an offer in accordance with the strict terms of Part 36 cannot expect to secure the costs benefits which Part 36 confers.
In two decisions the courts have emphasised their readiness to look at the circumstances behind the 'full and final' wording of a settlement agreement, with each case yielding a different result. The cases are reminders of the proper approach to the construction of such agreements, and of the importance of documenting a settlement with language that indicates which rights are being compromised or preserved.
In a recent decision, and as an exception to the general rule that late amendments will be permitted only if properly justified and pleaded, the High Court permitted a defendant to advance an unpleaded claim for a bonus, on a quantum meruit basis. The case provides an example of the circumstances in which a party may be afforded scope to reshape its case at trial.
In proceedings for a civil recovery order, the Serious Organised Crime Agency obtained a property freezing order under the Proceeds of Crime Act 2002, freezing the defendants' assets and property in the United Kingdom and abroad. The defendants appealed that freezing order, applying to have it varied to exclude foreign property on the ground that the act did not enable the recovery of assets abroad. The application was refused.
A recent case concerned a dispute over a property development in Dubai in which the defendant argued that he had not been validly served and that, in any event, Dubai was the appropriate forum. The court allowed an application for summary judgment to be heard at the same time as the defendant's jurisdictional challenge, finding this to be near-perfect example of a case meriting such a decision.
Her Majesty's Revenue and Customs (HMRC) recently sought a declaration from the court that the so-called 'football creditor rule' in the Football League's articles of association fell foul of two fundamental principles of insolvency law: the pari passu principle and the anti-deprivation rule. HMRC argued that the league's articles and insolvency policy were an attempt to contract out of the Insolvency Act.
Before the reforms of Lord Woolf in the late 1990s the courts would more frequently favour fairness over expeditious case management. The pendulum has now swung more towards avoiding delay. As a recent Court of Appeal case shows, the courts will usually take a strict approach to unsuccessful litigants bringing appeals out of time, regardless of the merits of the appeal.
The High Court has recently considered the competing interests in confidentiality, commercial sensitivity and open justice. The litigation arose out of an aggressive battle for corporate control and the decision - which favours the value of public justice over commercial interests in privacy - is a prime example of the competing interests inherent in public systems adjudicating private and commercially sensitive disputes.
A recent Commercial Court case has reinforced the decision in Trafigura that closely connected claims in contract and misrepresentation should be governed by the same law. Contracting parties must inform themselves of the terms on which they contract, as the courts will be reluctant to come to the aid of those who do not help themselves, particularly when they are sophisticated commercial parties.
Most English civil lawyers are aware that service of English proceedings in Russia under the Hague Convention is a painfully slow process. A recent decision demonstrates the pragmatic approach that the English courts are prepared to take to the issue of proper service of proceedings, especially when dealing with urgent injunctive proceedings whose purpose would otherwise be thwarted.
The High Court recently considered whether Polish defendants could be added to existing English proceedings. The basis for the argument to add them was a "special English jurisdiction" over them, despite the fact that one of them was an employee and therefore had a right to be sued in his country of domicile, not in England.
The Court of Appeal's recent decision in a dispute arising from a 'best endeavours' clause emphasises the importance of the obligation itself, rather than the endeavours language surrounding it. The case also highlights the issue of how far a party can be expected to act against its financial interests in complying with such clause.
In a case brought by the motorsport racing team Force India, the High Court has provided a comprehensive review of the law on breach of confidence and the correct approach to quantification of damages in such claims. It confirmed that the extent of the breach significantly affects the likely level of damages; a party that brings a claim for breach of confidence must take appropriate care when framing its case on liability.
A recent High Court case has confirmed that directors and other third parties are susceptible to contempt proceedings where a company breaches a freezing injunction. In some cases this may not require knowledge that the acts in question constitute a breach. The case also demonstrates the limitations of freezing injunctions in preventing the dissipation of intangible assets
A recent case shows how - even in the cut and thrust of commercial dealings - lawful but illegitimate conduct may in certain circumstances render an underlying agreement voidable. The decision serves as a warning to parties that breach agreements and then seek to take a tough stance in subsequent settlement negotiations.
In an age of globalised deals conducted by electronic communications, the volume of material relevant to a single dispute is often enormous. A recent lecture by Lord Justice Jackson has emphasised the ways in which the coming reforms to civil litigation will affect the role of technology. There is little doubt that lawyers can expect a more proactive - and in some parts automated - court system in the post-Jackson era.
Following tangled legal proceedings, footballer Ryan Giggs's claim for damages against News Group Newspapers has been struck out. Reinstatement of the claim was refused on the grounds that Giggs had been party to two serious breaches - one of the rules of court and the other of an earlier court order.
The Supreme Court recently handed down judgment in the long-running Atomic Veterans litigation between a group of former servicemen and the Ministry of Defence. It had to consider and decide on the correct approach to ascertaining the state of a claimant's knowledge about a cause of action in negligence for the purposes of the Limitation Act 1980.
A carefully reasoned judgment has considered the question of when it is appropriate to look behind the identity of a company in order to attach liability to its controlling mind. The claimant had sought to pierce the corporate veil in order to hold certain defendants jointly and severally liable for breach of an obligation to make repayment under a loan agreement.
The proceedings between JSC BTA Bank and its former chairman Mukhtar Ablyazov, together with various of his associates and associated companies, have been one of the most dramatic court battles in recent years. In considering the tools available to it in the face of what it found to be wilful contempt of its authority, the court has expanded the armoury of those seeking to enforce the terms of interlocutory orders.
In rejecting a comparison between trustees and insolvency practitioners, a recent decision affirms the limit on the personal liability of insolvency practitioners for actions while holding office. It also reminds parties pursuing an insolvent company that although a claim may be successful, a winning party will be unable to look to the insolvency office holder to meet any shortfall in damages or costs awarded in the company's estate.
The decision in British Sky Broadcasting Group v Digital Satellite Warranty Cover Ltd makes it clear that the court will take a restrictive approach to the use of information that is obtained under cross-examination of a person who swears an affidavit pursuant to the requirements of a freezing injunction.
In the recent High Court case of Patel v Unite the court granted an order for an independent IT expert to inspect the respondent's computer systems after the respondent failed to comply fully with a Norwich Pharmacal order.
The Court of Appeal recently considered when a document is within a litigant's or judgment debtor's control and therefore potentially disclosable. The court also considered whether trust documents are within the control of the trust's beneficiary. A document can be within a party's control even if it has never been in the party's possession and the party has never had a strict legal right to possess, copy or inspect it.
A recent case highlights the potentially perilous interaction between contractually agreed limitation periods and provisions governing the service of notices and claims. In order to avoid claims being time barred, it is essential that service provisions are both carefully drafted and meticulously followed.
A Court of Appeal case highlights the complex legal issues that may arise on the collapse of an investment banking group and the unwinding of intra-group structures that were established with the aim of benefiting the group in terms of efficiency and economy. Banks and creditors alike must understand the potential difficulty of establishing which entity within the bank holds the legal and beneficial title to various securities.
The Commercial Court recently held that orders which extended time for service of a claim form by a bank on a Russian defendant by two years and granted permission for alternative service of the claim on his English solicitors were appropriate, as there was evidence that it might take that long to serve the claim and there were grounds for believing that the defendant might not accept service in Russia.
A recent case suggests that challenges to the court's jurisdiction will not be taken lightly, particularly where it can be shown that proceedings have been issued outside the jurisdiction with the aim of impeding an arbitration. It also illustrates the special circumstances in which the court will permit service by alternative means out of the jurisdiction.
A recent decision sends a clear message to parties that attempt to cast blame on the court in trying to overcome limitation issues. The judge made clear that the onus is on solicitors (or the claimant) to ensure that the court receives the claim form on time. The court also summarised when Section 21(1)(b) of the Limitation Act 1980 will apply in actions against fiduciaries, and the test for concealment under Section 32(1).
A recent High Court judgment demonstrates the difficult art of determining issues on which all the direct witnesses have been demonstrated to be unreliable. It also contains a significant reminder to claimants and their solicitors to monitor the continuing belief in the statements set out in a letter before action and to issue corrections when the need to do so becomes apparent.
The Supreme Court recently ruled in favour of removing the longstanding immunity from suit of expert witnesses in civil cases. Although many in the legal profession will see this as a logical extension of the removal in 2002 of a similar protection afforded to barristers, there are concerns as to how potential experts may view the ruling.
In a recent decision the High Court again emphasised the high level of protection afforded to legal professional privilege in law, and made clear that a party's right to claim legal professional privilege should be overridden by a court order only in exceptional circumstances.
A recent Court of Appeal case has highlighted that care must be taken by trustees in bankruptcy when assigning claims in the bankrupt's estate. The case concerned a trustee in bankruptcy who assigned a claim to a third party on terms that the bankrupt's estate would receive a share in any sums recovered. The court held that the trustee could be found liable for the costs of the litigation, notwithstanding the assignment.
The Supreme Court has provided useful guidance on the role of business common sense in construing a clause in a commercial contract, particularly in circumstances where there are competing plausible constructions, neither of which is clearly preferable on the language used alone.
The government recently published its decision that the United Kingdom would not opt into the European Commission's proposed regulation to establish the power to grant a European account preservation order. Although its aim has been applauded by many, the proposal has been widely condemned as too draconian, offering limited protection for defendants and too little in the way of legal recourse.
The much-publicised litigation involving Russian magnates Boris Berezovsky and Roman Abramovich has shed light on the extent to which it is possible to retain privilege over, or otherwise restrict the use of, documents that have been disclosed to third parties. Twists, turns and unforeseen consequences can cause a seemingly risk-free disclosure to undermine critically important privilege.
A High Court decision, which will be welcomed by private banking clients, highlights the stark difference in approach between the issue of when a bank is liable for advice or recommendations under the Conduct of Business Rules, and the question of whether the same sort of advice or recommendation gives rise to liabilities at common law.
The Court of Appeal recently handed down its decision in the biggest costs case in English legal history, Motto v Trafigura Ltd, wherein it clarified the test for proportionality that applies when costs are assessed on the standard basis. It also highlights the court's desire to concentrate lawyers' minds on the proportionality and necessity of the costs incurred in litigation.
Two cases shed new light on the courts' application of the Civil Procedure Rules (CPR). One provides what is possibly the first authority on the application of CPR 38.7, on re-litigating discontinued claims; in the other, the court made an order under CPR 3.3 convening a hearing in two parallel cases, rather than dealing with an application in one of the cases on paper. Litigators should also be aware of recent CPR changes.
Footballer Rio Ferdinand has lost his privacy battle against the Sunday Mirror over an article published about him in 2010. The bottom line in the decision was that the public interest in publishing the article outweighed his reasonable expectation of privacy. The threat of appeal has enabled Ferdinand to request that parts of the public judgment be removed. However, for now, the media can revel in a rare 'kiss and tell' privacy win.
The High Court increasingly has to grapple with complex litigation involving recalcitrant foreign parties, often operating in jurisdictions which are not amenable to enforcing English court orders. Solicitors for such defendants will face a delicate task in explaining how far they can resist disclosing contact information to hostile parties where the courts view disclosure as necessary to give effect to their orders.
A recent Court of Appeal judgment in a property dispute is a useful reminder of the principle that a claimant cannot recover more than once in respect of the same wrong, and that even the most culpable conduct may be met by only a modest award of exemplary damages.
In uncertain financial times, with a further wave of litigation likely, financial institutions will take comfort from the fact that the English courts continue to take a robust approach to the distinction between advisory relationships and investment advice that is given as part of the sales process.
Part 36 of the Civil Procedure Rules introduced a procedural regime for settlement offers in disputes and prescribed the costs consequences for offers made in accordance with its terms, designed to encourage parties to make and accept reasonable offers. Although the basic formal requirements of a Part 36 offer are straightforward, case law has revealed a number of pitfalls to avoid.
In a recent case the High Court considered the principles to be applied to an application for expedited trial. This update considers the typical circumstances in which such applications are made and the principles that the court will apply in deciding whether to allow an expedited trial.
A recent case has shed further light on the process that parties and the court should follow in seeking to remedy errors in the language of a contract. It also provides a cautionary tale of how an unfavourable expert determination can be binding on the parties, even where the court takes a different view.
The Court of Appeal has clarified the correct judicial approach to applications for injunctions to prevent the breach of a negative covenant. The decision highlights the benefit of spelling out in a contract what a contracting party cannot do, as well as what it is required to do, thereby enhancing the chances of obtaining an injunction if one party fails to perform the contract in accordance with its terms.
A recent decision is a sharp reminder that the courts' public service function is not necessarily subservient to the mutual wishes of the parties in commercial litigation. It underlines the imperative for parties to assess their position in the wake of the trial, while judgment is being drafted, where a judgment may present a significant enough reputational risk to justify settlement.
Part 36 of the Civil Procedure Rules has been the focus of judicial consideration over the past few months. Parties in dispute should be aware of recent decisions in this area, particularly the Court of Appeal's recent judgment on time limitation. Proposed reforms largely centre on the costs consequences of failing to beat an opponent's Part 36 offer at trial.
The Supreme Court has refused permission to appeal in Clift v Slough Borough Council, a privacy case which involved a public authority that was required to act in a way that was compatible with Article 8 of the European Convention on Human Rights. The decision serves as a warning to local authorities to consider their obligations under the Human Rights Act before distributing material that may be defamatory.
The Court of Appeal has re-emphasised the usual presumption regarding the costs of discontinuing proceedings. In the absence of a good reason to the contrary, the party that withdraws its claim must pay the other party's costs. The judgment reaffirmed the guidance of the lower court on what might constitute a good reason.
The government's plan for reducing legal aid was recently confirmed with the publication of the Legal Aid, Sentencing and Punishment of Offenders Bill. It seeks to incentivise claimants to control their costs by adopting most of Lord Justice Jackson's recommendations. However, litigators will be watching carefully to see how the bill evolves, particularly on the issue of Part 36 offers.
The First-tier Tribunal has released a significant decision on whether a partnership with connections to the Isle of Man was an artificial structure motivated by tax-planning concerns. The taxpayers' success appears to have been due to careful preparation of the evidence, and the fact that the partnership included a solicitor who considered the partnership's tax position from its inception.
The Court of Appeal recently considered the interpretation of Articles 28 and 30 of the EU Judgments Regulation, which govern the circumstances in which a court of one EU member state may stay an action before it in favour of a pending related action in a court of another member state.
A recent High Court case involving unlawful loans to directors illustrates the potential pitfalls involved in calculating limitation periods and the circumstances in which the usual six-year statutory limitation period will not apply to a recovery claim against a fiduciary. It is a reminder for liquidators that possible causes of action and related limitation periods must be considered promptly on liquidation.
A recent case sheds light on the importance of careful drafting and interpretation of contractual termination provisions. The inclusion of one or two words would have significantly widened the scope of a key provision and ultimately changed the outcome of the litigation. The case also provides guidance on the correct measure of damages when a purported termination proves to have been unlawful.
The High Court recently ruled on a misselling claim brought against Barclays Bank Ltd in relation to the portfolio composition of a complex financial product. Many investors in this area will be surprised by the judge's conclusions on the basis of the collateralised debt obligations business.
Settlements produced during mediation, at the courtroom door or in mid-trial are usually drafted under pressure and in a short time, leaving scope for dispute between the contracting parties over the meaning of terms. A recent case has provided additional guidance on the factors that courts should consider when interpreting agreements made in mid-trial.
A Court of Appeal judgment on reporting and privacy has prompted gasps of horror from some sections of the media. More surprisingly, the public - often suspicious of press self-interest in these matters - may think that the newspapers are right and that the courts have gone too far.
The ninth edition of the Admiralty and Commercial Courts Guide reflects amendments to the Civil Procedure Rules and related practice directions. It emphasises practicality and efficiency, not only in the new rules on designated judges and the imposition of the Electronic Working Scheme, but also in its more minor changes to the requirements for lists of issues and disclosure schedules.
The High Court has granted a perpetual injunction preventing a former director of the claimant company from disclosing confidential information about the company's business. The case provides useful guidance as to the level of defendant misconduct that is required to obtain such an order.
A recently issued judgment on a procedural point in a construction case has much more general application. The point concerns the scope of actions brought by or against representatives under Part 19.6 of the Civil Procedures Rules and the possible defences, including the defence of limitation.
The Court of Appeal recently considered whether a claimant was entitled to recover from a defendant the success fee payable to his solicitors under a conditional fee agreement in circumstances where the claim was brought by the claimant's insurers, exercising their right of subrogation. The court also considered the recent decision of the European Court of Human Rights in MGN v United Kingdom.
The Court of Appeal has held that solicitors may agree to indemnify clients against adverse costs liabilities. The Law Society has hailed the decision as "eminently sensible", claiming that it not only sends an important message about access to justice, but also paves the way for clients to be fully indemnified against adverse costs orders by solicitors where no legal aid or legal expenses insurance is available.
The Supreme Court has swept away the longstanding immunity from suit afforded to expert witnesses. In future, parties may find that experts' views and opinions are less bullish and more caveated. Although this may be frustrating at the time, it could promote more accurate and flexible experts' reports - on both sides of the litigation - and encourage less entrenched positions, potentially making disputes easier to resolve.
A recent High Court decision offers welcome guidance on how a party should approach an application for security outside the traditional jurisdiction under Civil Procedure Rule 25.13. The guiding principles cut through the confusion that has surrounded the exercise of this jurisdiction since the decision in Huscroft in 2010, and provide the courts and applicants with a workable framework for applications.
A recent Court of Appeal judgment provides useful guidance on the extent to which trustees should participate in disputes arising from complex financial products. Where the trustee's stance on the issues is neutral, it was considered that it should be unnecessary for representations to be made on the trustee's behalf or for it to be represented at a hearing.
Disputes between Russian oligarchs continue to keep the London courts and legal profession busy. A recent case arising out of dispute over control of the Norilsk Nickel mining group suggests, among other things, that applications for Norwich Pharmacal orders against solicitors will be treated similarly to applications against banks for disclosure of details of their customers' affairs.
Where a contract is for the sale or disposition of an interest in land, or a guarantee, statute requires a signed, written agreement. However, the High Court recently held that a chain of emails was sufficient to constitute a guarantee, even though the alleged guarantors had not signed a final guarantee document.
A recent Court of Appeal decision demonstrates the robust approach that the courts will take when a party to a commercial contract seeks to complain about unfair terms. It also reminds commercial parties of the need to be aware of the terms that apply to their business arrangements and to consider them carefully, as such terms may be more restrictive than they realise.
In a recent case the judge had to decide whether service of proceedings in Peru by the three claimants was good service. He decided that it was not, and went on to consider the effect of provisions in the Civil Procedures Rules regarding alternative methods of service of a claim form overseas.
The Court of Appeal has upheld the High Court's earlier finding that market practice is admissible as part of the factual matrix which may be considered in interpreting a contractual term, providing a fresh avenue for parties to explore as an aid to contractual interpretation. The case also included an exploration of how and when a court will imply terms into a contract.
The Court of Appeal recently considered the consequences of a defendant failing to better a claimant's Part 36 offer in circumstances where the claimant had entered into a conditional fee agreement with his solicitors and had purchased after-the-event insurance. The leading judgment was given by Lord Justice Jackson, the key figure in the reform of litigation funding and costs in England and Wales.
The European Court of Human Rights has ruled that UK laws which allow the recoverability of success fees in privacy cases violated a newspaper's rights to freedom of expression. This landmark decision makes it almost certain that the government will scrap recoverable success fees and after-the-event insurance premiums in defamation and privacy cases.
It is well understood that parties can incorporate standard terms into a contract; however, the minimum that contracting parties must do in order to achieve this is less clear. The Court of Appeal recently held that the words 'terms and conditions available upon request' at the foot of a form of work order are reasonably capable of being understood as being intended to incorporate the contractor's standard terms.
As a result of the financial crash, financial institutions have frequently been compelled to liquidate loans associated with financial products such as collateralised debt obligations. A lack of appetite to purchase such loans made valuing such loans particularly difficult. However, a recent case reminds financial institutions that pricing exercises must comply with any contractual obligations of transparency and fairness.
The Court of Appeal recently reviewed one of the most potentially draconian procedural provisions available in English civil litigation: judgment in default. Default judgment is a risk which can and should be avoided; if it is not, applications to set aside must be made rapidly. Delay will not necessarily be excused by the existence of a good arguable defence to the claim if this has not been advanced within the relevant deadlines.
The Ministry of Justice has announced that from April 1 2011 Her Majesty's Court Service and the Tribunals Service will be merged to form a new, single organisation: Her Majesty's Courts and Tribunals Service. Although it has outlined many benefits of the new system, the ministry intends to ensure that certain important and unique aspects of the separate services are not affected.
The new Supreme Court has considered its first libel claim. In an unanimous decision the court held that the defence of fair comment should be modified and renamed as 'honest comment'. The main issue before the court was the extent to which the defence of fair comment should require the factual basis of the comment to be set out within the words about which the complaint is made.
Settlement agreements continue to be important for lawyers and their clients. Settlement of a claim avoids the cost, uncertainty and publicity of taking a dispute through the courts. Nevertheless, parties must be careful to ensure that they settle only what they intend, and to avoid the pitfalls that can be encountered in drafting settlement agreements.
The government is consulting on the reform of civil litigation funding and costs. The proposals focus primarily on a package of recommendations to abolish the recoverability of conditional fee agreement success fees and after-the-event insurance premiums from the losing party; they would also permit the use of contingency fees. Implementation is unlikely before the end of 2011, but a new era of litigation funding is on its way.
A recent High Court case illustrates the key principles that the court will apply when considering a summary judgment application based on disputed issues of fact. It also demonstrates the court's approach to 'no set-off' clauses in commercial agreements.
A recent Court of Appeal case provides helpful guidance for parties that are considering a claim for 'loss of a chance' damages, shedding light on the circumstances in which it is appropriate for such damages to be awarded where the court must assess what a third party would be likely to have done.
A Supreme Court decision has established that in order to aid construction of an agreement, a court can - in principle - accept evidence of objective facts communicated in without-prejudice negotiations. This has introduced a potentially wide-reaching exception to the without-prejudice rule, raising questions about the extent to which parties will feel comfortable about speaking freely in such communications.
The number of new claims launched in the High Court suggests that the increase in substantial, complex litigation following the credit crunch is continuing. Increasingly, claims are being launched against investment banks by institutional investors and other banks that were sold 'toxic' financial products. However, the devastating upsurge in claims that was predicted in the darkest days of the credit crunch has yet to materialise.
A wave of financial crisis litigation has brought many jurisdictional battles before the High Court. Under the Brussels Regulation, a contracting state court cannot decline jurisdiction if the party being sued is domiciled in its jurisdiction, even if the court believes that the dispute would be better heard in the courts of a non-contracting state. However, what is the approach to other parties to the dispute that are not domiciled in England?
Legal professional privilege (which includes litigation privilege) constitutes critical protection for clients, enabling them to obtain legal advice without fear that their communications could be disclosable to third parties or the court. A recent Court of Appeal decision rules out the extension of privilege to legal advice given by accountants - changes to the regime appear unlikely without parliamentary intervention.
Set-off can be complicated in an international context, as the claim may be quantified in one currency, but the counterclaim or opposing sum due may be quantified in another currency. This causes problems in respect of the date of currency conversion, the applicable interest rates and the treatment of legal costs.
The High Court recently considered the circumstances in which it was appropriate for an 'unless' order to be made, debarring the respondents from defending and entitling the claimant to default judgment unless certain information and documents were provided.
One of the key proposals of Lord Justice Jackson's report on civil litigation costs was to end the recoverability of success fees and after-the-event insurance premiums under conditional fee agreements. A consultation will gather opinion on implementing the change and on other recommendations, particularly the proposal that lawyers be permitted to enter into contingency fee agreements.
The Court of Appeal has clarified the approach when construing competing jurisdiction clauses in agreements in related transactions. Although it should be assumed that parties to an arrangement do not generally intend a dispute to be litigated in two different tribunals, the court's task in determining jurisdiction always depends on the parties' intention. Facts and evidence should always trump assumption and presumption.
Legal professional privilege is an essential protection for clients seeking to obtain full and frank legal advice and to bring or defend legal proceedings. This update is a reminder of the key rules, with a particular focus on the role of in-house counsel and the steps that clients can take to minimise potential issues.
A written contract will not always reflect the parties' actual agreement. Although the courts will not readily accept that contracting parties have made mistakes in formal documents, sometimes it is clear that something must have gone wrong. As the documents that underpin complex deals come under greater scrutiny, the courts' more liberal approach in recent cases is to be welcomed.
Significant changes are being made to the way in which parties to litigation conduct electronic disclosure, known as 'e-disclosure'. This update considers the changes and identifies other key amendments to the Civil Procedure Rules (CPR).
A recent case serves as a warning to defendants in civil litigation that a claimant's after-the-event insurance is sometimes no substitute for security for costs. Moreover, it is when a defendant is most deserving of having its costs paid - because a claimant has knowingly pursued a fraudulent claim - that after-the-event insurance is likely to evaporate.
The High Court has again grappled with the extent to which it should find an objective agreement when, on the basis of conflicting standard terms, the parties are subjectively in conflict. In a break from the traditional analysis - in which the 'last shot' in an exchange usually determines the applicable terms and conditions - the court found that neither party's terms and conditions were incorporated.
In Kuwait Airways Corporation v Iraq Airways Co the Court of Appeal ventured into uncharted territory. It allowed a 'without notice' appeal by Kuwait Airways Corporation and permitted the implementation of ancillary restraining orders against a non-resident non-party in order to ensure the efficacy of a worldwide freezing order and associated disclosure orders against Iraq Airways Co and its director general.
A recent case confirms that the overriding consideration in applying for fortification of cross-undertakings is the balance of justice. Where a defendant is at risk of significant harm if a freezing order proves to have been wrongly granted, it is material to enquire whether the claimant would suffer corresponding harm if a fortification is ordered, and to consider which course is least likely to lead to an ultimate injustice.
In a recent case the High Court once more addressed the distinction between direct, indirect and consequential losses, and interpreted exclusion clauses narrowly. More unusually, the court also considered a limitation of liability cap in a contract and held that it applied to contractual but not statutory interest.
In recently emphasizing the distinct and self-contained nature of the Part 36 regime, the Court of Appeal has made clear that even the most basic principles of contract law cannot be assumed to apply. In particular, unless it is expressly withdrawn, an offer under Part 36 of the Civil Procedure Rules will remain open for acceptance even if it is rejected or superseded by a counter-offer.
The Court of Appeal has overruled a decision that remarks made by Dr Simon Singh about the British Chiropractic Association were matters of fact which had to be justified, rather than opinion which could fall within a fair comment defence. As a result, a broader approach is likely to be taken on meaning, with press articles being considered as a whole and in context, and scientific controversies are less likely to be litigated.
The Court of Appeal recently considered the extent of subordination provisions in a group guarantee. It held that a parent company's claims against its subsidiaries for intra-group debts had effectively been subordinated to the claims of its bank creditor. This decision takes a step (albeit a small one) away from the uncertainty created by recent conflicting judgments in this area.
In a welcome run of victories for defendants, the High Court has struck out three libel claims in the past four months. In all three cases the court found that at least some of the claim before it amounted to an abuse of process. The decisions appear to indicate greater pragmatism in the libel courts and a willingness to apply the abuse doctrine flexibly and proactively.
The use of conditional fee agreements and accompanying after-the-event insurance policies has led to defendants in unsuccessful cases paying not only the claimant's base costs, but also the claimant's lawyer's success fee and an insurance premium. This update examines the obligations on a party operating under funding arrangements to keep its opponent informed, and considers the consequences of failing to do so.
Those who thought that the European Court of Justice decision in Louis Vuitton v Google, as interpreted in Die BergSpechte v Günter, had resolved the trademark infringement issues of keyword advertising will be disappointed by the High Court's recent consideration of the issues in the context of the dispute between Interflora and Marks & Spencer.
In general, contractual terms are settled in one of two ways: by negotiation or through the use of standard terms. However, there are also uncertainties when parties try to incorporate standard terms and conditions by firing the last shot in a so-called 'battle of the forms'. Two Court of Appeal decisions demonstrate the legal and commercial difficulties that can arise.
It is common practice for information technology suppliers to seek to exclude or limit their liability within their standard terms and conditions. However, such provisions are enforceable under English law only to the extent that they are "reasonable". A recent High Court decision highlights the possible pitfalls when suppliers seek to rely on standard exclusion clauses.
In cases arising from the Lehman Brothers insolvency, the English and US courts have recently considered the legality of 'flip' provisions in the context of synthetic collateralized debt obligation transactions. The provisions were challenged in the English courts on the basis that they breached the English 'anti-deprivation' rule, and in the United States under the US Bankruptcy Code.
A Tomlin order is a type of consent order which records that the parties have agreed terms of settlement, and orders that all further proceedings be stayed. A recent case makes clear that a court has no more power to vary the terms contained in the schedule to a Tomlin order than it has to vary any other agreement not attached to a court order.
In 2009 two cases, West Tankers and National Navigation, significantly narrowed the scope of an English court to grant an anti-suit injunction against a party located in an EU member state. However, a recent High Court decision clarifies that anti-suit injunctions can still be obtained to restrain proceedings brought outside the European Union in breach of an arbitration agreement.
There are not many cases in which a solicitor wants to stop acting for a client, but such a situation may arise if fees are not paid or instructions cannot be obtained. In such circumstances, a procedure must be followed in order to come off the record and recover fees. A recent Court of Appeal decision provides guidance on deciding the issue of good reason to terminate a retainer.
A recent High Court decision concerned an application by the defendants to be released from undertakings given in lieu of an injunction by reason of the claimant's non-disclosure of certain factual matters. It demonstrates that the overriding issue for the court, when considering non-disclosure in this context, is to consider what is in the interests of justice, rather than adopting a strict approach to the disciplinary provisions.
In a recent case the High Court considered the circumstances in which permission may be given to serve proceedings out of the jurisdiction. In his judgment on an application to set aside service, the judge undertook a thorough analysis of the conditions that a claimant must meet. The judgment is significant for parties wishing to apply to serve proceedings out of the jurisdiction or to set such proceedings aside.
In Vercoe v Rutland Fund Management Limited the judge held for two claimants against a venture capital company that had proceeded with a management buy-in deal which the two men had introduced, but without including them. The judgment covered the assessment of damages for breach of contract, the overlap with the field of breach of confidence and the parameters of the equitable remedy for an account of profits.
The Court of Appeal's decision in Shell UK Limited v Total UK Limited provides authority for equitable owners being entitled to bring claims in negligence for pure economic loss, provided that the legal owner has been joined. It is difficult to reconcile this decision with the leading case on the exclusionary rule and further guidance from the Supreme Court is expected.
In a recent case the Supreme Court unanimously found an unsigned agreement to have been formed by virtue of the parties' conduct, despite a clause providing that it would not become effective until signed and exchanged. The case shows that acting as if terms are agreed means that they may well have been, whatever the parties privately believe.
Jacobs v Motor Insurers' Bureau is the first High Court case to consider EU Regulation 864/2007 - known as Rome II - since it came into effect in January 2009. Pursuant to Rome II, the court ruled that Spanish law applied to a UK resident bringing an action for compensation against the Motor Insurers' Bureau following an accident in Spain.
The Court of Appeal has shed light on the question of whether evidence of without-prejudice communications and discussions can be relied on in a subsequent dispute about the interpretation of a written settlement agreement. Its decision provides firm judicial support for open settlement negotiations at the expense of the courts having all relevant documentation before them wherever possible.
A recent Court of Appeal decision sheds light on the basis on which actions against foreign states can be enforced in the English courts. Without a formal submission to the jurisdiction of the English courts, or without some other connection to the United Kingdom, it will be impossible to enforce foreign judgments against overseas states in the English courts.
Litigators engaged in time-consuming and costly disclosure exercises will welcome the High Court's recent clarification of the extent to which lawyers' markings will attract the protection afforded by legal professional privilege. Mere underlining and highlighting will not attract privilege; rather, there must be a solid, substantive justification which is relevant to the nature and substance of the legal advice.
Despite the benefits of the tribunal system in terms of expert decision making and procedural informality, some UK tribunals are poorly funded, understaffed or lacking in new technology, while others are perceived to be insufficiently independent of the body against which appeals are brought. A restructuring of the Tribunal Service seeks to remedy these problems by bringing tribunals within a new two-tier system.
In a recent case the claimants attempted to sue the defendant in England in libel for remarks published in a South African magazine. The defendant successfully applied for summary judgment on the grounds that the claims had no realistic prospect of success, as there was a lack of substantial publication in the jurisdiction. The case shows the importance of obtaining good-quality evidence of internet publication.
From 'docketing' to 'hot tubs', the reform of Part 36 and the abolition of referral fees, Lord Justice Jackson's report on the costs of civil litigation is the most extensive review since Lord Woolf's Access to Justice Report. Among other things, the proposals would allow commercial claimants to consider a range of funding options and would end the recoverability of 'after-the-event' premiums and success fees.
The latest update to the Civil Procedure Rules implements several significant changes. The introduction of the Electronic Working Scheme in several courts provides for the electronic filing of most court documents. Other changes affect costs proceedings, instructed representatives and time limits for filing documents and serving applications.
The right to bring derivative claims has always existed under English law, but the Companies Act 2006 relaxed the requirements that must be satisfied in order to pursue such claims. However, the act requires prospective claimants to obtain permission from the court to commence a claim. The 'hypothetical director' test and the availability of alternative remedies are likely to weigh heavily in the court's consideration.
Recent case law has considered the Civil Procedure Rules relating to the amendment or withdrawal of a Part 36 offer. It underlines the importance of keeping offers under constant review and demonstrates that a Part 36 offer which is expressed to be open for acceptance for 21 days (or more) can be withdrawn before the end of this period with the court's permission.