Insights & News

You’ve started – so you’ll finish

11 June 2018

Claimants commencing proceedings in the Courts of England and Wales may not be able to end those proceedings simply by serving a notice of discontinuance and can be required to take the matter to trial. In this case the claimants were not permitted to discontinue their claim for the recognition and enforcement of an arbitration award under the New York Convention.

Supreme Court upholds requirement to record variations in writing

24 May 2018

Rock Advertising Limited v MWB Business Exchange Centres Limited is an important case. In fact, the opening paragraph of Lord Sumption’s judgment describes it as an “exceptional” appeal, raising “truly fundamental issues” of contract law.

Liquidator loses protection of a freezing order following serious failings at earlier ex parte hearing

14 May 2018

In Banca Turco Romana S.A. (in liquidation) v Cortuk and Others, the Commercial Court in London has underlined the need for applicants to give full and frank disclosure when seeking relief at ex parte (without notice) hearings.

Service of a Claim Form by email – get it wrong at your peril

27 March 2018

Communicating by e-mail is common practice. However unless you adhere to the procedural steps required by the Civil Procedure Rules service of a claim form by email will be defective. The Supreme Court’s decision considered whether to grant relief from sanctions to an unrepresented party for failing to adhere to the procedural steps.

Directors held to be trustees of company property

08 March 2018

The Supreme Court has held that directors should be treated as being in possession of company property from the time of their appointment because, as fiduciary stewards they are trustees of trust property within the meaning of section 21(1)(b) of the Limitation Act 1890 (“the Act”).

This is my advice. By the way, it might be wrong!

05 March 2018

When do solicitors have to warn their client that the advice they are giving may turn out to be incorrect? The Court of Appeal has recently considered this issue.

Early Specific Disclosure Applications – factors the court will consider

22 January 2018

A decision in the Technology and Construction Court (“TCC") sheds light on the applicable test for early specific disclosure and the relevant considerations in making a successful application. Applications for early specific disclosure are relatively rare so the judgment provides helpful guidance.

English courts and overseas defendants: jurisdiction challenges and the “two-fold test”

15 January 2018

When a dispute involves a foreign party or events that took place in another jurisdiction, questions often arise as to where the dispute should be determined.

Compulsory mediation?

11 January 2018

In October 2017 the Civil Justice Council (CJC) published its interim report on the future role of alternative approaches to dispute resolution (ADR). The report makes various recommendations as well as inviting responses. It follows input from a working group tasked in January 2017 to examine uptake of ADR in civil justice. The primary purpose of the report is to find ways to encourage its use.

Disclosure in English litigation: a sea change is coming

09 January 2018

English rules on disclosure (‘discovery’ in many jurisdictions) are set for a major overhaul. Draft rules were published in November 2017. Once approved by the Civil Procedure Rules Committee, the resulting draft is intended to be introduced as part of a pilot scheme lasting 2 years, potentially beginning in April 2018 and running in the Business and Property Courts. This will cover virtually all High Court litigation. It will not be optional.

Erosion of privilege – Law Society seeks to intervene

08 January 2018

The Law Society is applying to intervene in the upcoming appeal of the landmark privilege decision in Serious Fraud Office (“SFO”) v Eurasian Natural Resources Corporation Limited (“ENRC”).

Use of disclosed documents to threaten new proceedings was a breach of court rules and may amount to a contempt of court by the solicitor and client

12 December 2017

The Civil Procedure Rules (CPR) provide that using documents disclosed in existing proceedings (except for the specific purposes allowed) breach the rules. CPR 31.22 provides various exceptions to when a document disclosed in a set of proceedings may be used. Any use outside of the rules could also amount to a contempt of court. Both the client who relied on the solicitor’s advice and the solicitor may be equally vulnerable to the contempt proceedings where there is no evidence of deliberate or reckless misconduct by the solicitor.

Service of a claim form on an agent - was it valid?

22 June 2017

In a recent case the High Court considered as a preliminary issue whether a claimant had validly served a claim form on what they considered was the agent of the claimant. The rules of service require that the defendant must be served at the place within the jurisdiction where it conducts business, or where it carries on its activities and which has a real connection with the claim. Therefore the question here was whether the agent’s office was a place at which the defendant conducted its business, or where it carried on its activities?

Marathon Asset misses the jackpot again

12 April 2017

After being awarded only £2 in nominal damages in its breach of confidence case, Marathon Asset has been heavily penalised on costs after failing to accept the defendants’ Part 36 offer.

Court considers service of a defendant’s notice to force claimant to serve proceedings or discontinue a claim

14 February 2017

A recent decision not only reminds practitioners of a defendant’s ability to force a claimant to either serve proceedings or discontinue a claim by using a CPR 7.7(1) notice, but also considers for the first time the date for compliance with such a notice.

Legal advice privilege: Not as wide as you think?

08 February 2017

Who is a lawyer’s client and what type of communications are protected for the purposes of legal advice privilege have been the subject of two recent important High Court decisions. These cases make it clear that not all communications between lawyers and a client’s employees will be protected by legal advice privilege, even if the communication took place to allow legal advice to be given.

Does a solicitor own the goodwill associated with their own name?

01 February 2017

In (1) Juthika Bhayani and (2) Bhayani Law Limited v Taylor Bracewell LLP this question was considered by the Intellectual Property Enterprise Court.