The High Court recently adopted an interesting approach to the well-known principles of contractual interpretation in a dispute concerning the financing of a wind farm development. The application of these principles remains tricky, particularly in cases where defined terms provide for flexibility. As a result, while parties should strive for clarity in drafting, they should also give particular consideration to possible options for terminating contracts when they are no longer needed.
According to the Court of Appeal, giving up a right which a debtor does not even know it has is sufficient consideration for settling a debt. However, the vexed question of what amounts to 'good' consideration remains uncertain enough for those entering into a contract to always consider whether good consideration has been given. Among other things, parties should consider whether good consideration has been provided and, if there is any doubt, pay the contractual counterparty a nominal amount.
The High Court has issued a reminder that the duty of full and frank disclosure applies to any application made without notice to the other party. Although this is most typically an issue in applications for injunctions, permission to serve a claim out of the jurisdiction was recently set aside on the grounds of the claimant's failure to disclose to the court a potential limitation defence to the claim.
In a high-profile acquisition claim, the High Court held that the implied undertaking against collateral use of documents received in the course of litigation prevented disclosure of those documents to the Federal Bureau of Investigation. The court's comments show clearly the level of scrutiny which will be given to requests or demands made by third parties for the disclosure of documents obtained through ongoing proceedings, no matter the standing of the person or authority that makes it.
Section 14A of the Limitation Act sets out the position on latent damage in negligence claims. Litigation around the application of Section 14A has predominantly centred on when the claimant has the requisite knowledge to bring a claim and if a claim could, and should, have been brought earlier. This has been brought into sharp focus in a recent case relating to a claim brought against the Bank of Scotland.
The Court of Appeal recently found that communications discussing a commercial proposal to settle an existing dispute are not privileged and are therefore subject to scrutiny by the court. Those engaged in litigation should take care not to commit to writing their commercial discussions on settlement and to frame their settlement discussions in terms of the legal advice that they have received on the litigation risks.
A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was recently reviewed by the Court of Appeal. As well as providing useful guidance on how the court should deal with applications by non-parties for access to documents, this case is a reminder to parties to proceedings that they should be aware of the potential loss of confidentiality.
The claimants in a recent case applied to inspect certain documents created in foreign proceedings over which the defendants – companies belonging to the mining company Glencore – had asserted litigation privilege. Glencore controlled these proceedings but was not a party to them. It unsuccessfully argued that this was a permitted exception to the general principle that a party cannot claim litigation privilege out of proceedings to which it is not a party.
The English High Court recently considered the correct approach to the redaction of documents in civil proceedings. The court held that the right to redact irrelevant material applies both to standard disclosure and the right to inspect documents referenced in statements of case. In the short term, this case confirms a party's ability to redact documents in order to protect commercially sensitive information. In the long term, the practice of redacting such information will likely be confirmed by way of an express rule.
The High Court recently considered the extent to which legal advice privilege could attach to documents which were not communications of legal advice between lawyer and client, but from which privileged legal advice could be inferred, and held that privilege could indeed apply to such documents. The test is whether there is a "definite and reasonable foundation" for such an inference to be made as opposed to material that would merely make the reader speculate what the legal advice was.
The Supreme Court recently held that the test for dishonesty should be assessed only by reference to whether the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. In its ruling, the Supreme Court concluded that there were convincing grounds for holding that the second limb of the well-known Ghosh test did not correctly represent the law and that directions based on it should no longer be given.
The Court of Appeal recently allowed an appeal of a first-instance decision not to order the deletion of a privileged email disclosed by the appellant to the respondent. In arriving at its decision, the court extended the principles around inadvertent disclosure identified in Al-Fayed v The Commissioner of Police for the Metropolis to cover situations where an inspecting solicitor does not identify that a document has been mistakenly disclosed, but another solicitor acting for the same party subsequently does.
The High Court recently found that a defendant bank owed and breached a duty to explain the financial implications of fixing the interest rate on the claimants' loans. This case is an as-yet rare example of the successful deployment of an argument that a bank owed a mezzanine duty to its customer of the form identified in Crestsign Limited v National Westminster Bank plc (falling somewhere between a full advisory duty and the standard duty not to make misrepresentations).
The Court of Appeal recently clarified the circumstances in which a party to litigation can use a subject access request under Section 7 of the Data Protection Act 1998 to obtain information which may be useful in litigation. This judgment provides clarification on issues relating to the legal professional privilege exception, the concept of disproportionate effort and the relevance of the data subject's motive in making the request.
In a recent case the Court of Appeal held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms. In doing so, the court shed further light on the application of the "cardinal rule" that an implied term must not contradict any of the express terms of the contract.
A recent decision demonstrates the interplay between arbitration and litigation, considering whether legal proceedings commenced by A against C are an abuse of the court's process where arbitration proceedings between A and B have decided the issue in question. The Court of Appeal held that a prior arbitration award can found an argument that subsequent litigation against a third party is an abuse of process, but will rarely do so.
The High Court recently held that a defendant's claim to privilege in respect of communications between employees and in-house counsel went too far. As well as a reminder of the limited application of legal advice privilege in a corporate context, this case is another warning to litigants (and their lawyers) that errors in disclosure can have costly consequences.
Under English law, a defendant may recover some of its liability to the claimant from a third party which is also responsible for the loss to the claimant. In a recent case the defendants were able to do so after settling a competition damages claim with the claimant, even though the third party had a limitation defence against the claimant, which could have extinguished both the defendant's and the third party's liability to the claimant.
The High Court recently reinforced the breadth of the test for disclosure and held that it has the power to order a party to appoint a separate law firm to conduct an independent re-review of its disclosure. Although the court chose not to exercise that power in this case, the decision is a warning to litigants (and their lawyers) that errors in disclosure can have costly consequences.
In Caliendo v Mishcon de Reya the High Court recently found that there was no implied retainer between Mishcon de Reya and the claimant shareholders of a company for which Mishcon was acting in relation to a sale of shares. However, taking into account the context of the relationship between the parties, Mishcon had assumed responsibility to the claimants and owed them a limited duty of care.
In Vizcaya Partners Ltd v Picard the Privy Council recently held that an agreement to submit to the jurisdiction of a foreign court can arise through an implied term, but there must be actual agreement (or consent). However, simply agreeing that an agreement should be governed by foreign law does not amount to agreement to the corresponding jurisdiction.
The Commercial Court recently determined that a claim in restitution based on unjust enrichment was governed by English law pursuant to the EU Rome II Regulation, rather than the law of Geneva. The case clarifies certain aspects regarding the interpretation of Rome II, while also demonstrating how the applicable law may depend on the precise formulation of the claim.
In Global Maritime Investments Cyprus Limited v OW Supply & Trading A/S (under konkurs) the High Court held that a jurisdiction clause prevented the defendant from pursuing issues in the Danish courts, even though jurisdiction was not stated to be exclusive. Either it was an exclusive jurisdiction clause or it became exclusive in respect of issues raised first in England.
In Portsmouth City Council v Ensign Highways Ltd the High Court implied a term imposing limits on a party's contractual discretion, holding that the party exercising the discretion was required to "act honestly and on proper grounds and not in a manner that is arbitrary, irrational or capricious". However, the court declined to construe an express good-faith clause as applying to the whole contract.
The recent case of Anderson v Openwork Limited provides an opportunity to reflect on the current approach of the courts in relation to when a duty of care arises on giving financial advice, the content of that duty and the interrelationship between common law and financial regulation, which continues to be a central theme in mis-selling claims.
In Trust Risk Group SpA v AmTrust Europe Limited the Court of Appeal rowed back from the presumption that parties that have agreed differing jurisdiction arrangements for their disputes intended their disputes to be governed by one regime. The case is a reminder for those drafting agreements of the importance of consistency in related contracts and of the pitfalls that may be hidden in the boilerplate.
The recent decision in Crestsign Ltd v National Westminster Bank plc is the latest in a series of cases relating to the mis-selling of financial products and provides an extreme example of how banks have been able to escape liability, notwithstanding findings of negligence and unreasonable disclaimers.
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.
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.