Dispute Resolution Update - October 2019

Articles in this edition

Misrepresentation: the truth, the half-truth and anything but the truth

On 19 September 2019, Andrew Wanambwa and Frances Simm from our commercial dispute resolution team hosted a seminar on misrepresentation claims, including the legal risks associated with pre-contract statements, the types of claims that can be made when things go wrong and the different remedies available. This is a summary of some of the key points discussed. - Read more

Mistakes in contracts – how to assess the parties’ intentions?

The legal remedy of rectification is an equitable remedy that, if granted by the court, may be used to amend a contract that says one thing, but which both parties had intended to say something else – i.e. a common mistake was made. The test to be adopted by the courts in assessing what the parties’ intentions were for the purposes of establishing a common mistake has been unclear and the source of much legal debate for several years. However, the Court of Appeal has now considered the issue and concluded that in certain situations the correct test is a subjective one. - Read more

Employer ordered to disclose privileged material

In a recent decision, an employer was ordered to disclose comments received from its external solicitor in relation to the dismissal of an employee because it had deliberately disclosed other related privileged documents which were helpful to its case. It could not cherry-pick which privileged documents to rely on. - Read more

Protecting confidential information and IP with search and seizure orders – who inspects seized documents first?

One tool in the armoury of any business that suspects its confidential information has been stolen and/or its intellectual property infringed is the “search and seizure order” (“SSO”) – a court order authorising a claimant’s lawyers to enter an opponent’s premises to search for, copy, remove and detain documents relevant to the alleged wrongdoing. In a joint judgment handed down just before the summer recess, the High Court has clarified the circumstances in which a claimant who is granted an SSO will be allowed to inspect seized material before the defendant does. - Read more

Law Commission confirms legality of electronic signatures

Following consultation, the Law Commission has published its report on the electronic execution of documents and confirmed that, “An electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.” - Read more

Privilege disapplied: the “iniquity” exception

In an application brought by a hotel portfolio company (in liquidation) for a declaration that it was entitled to disclose a number of documents within its possession, the High Court has considered when the “iniquity” exception will apply to legal professional privilege. So what is the iniquity exception and what does a party need to establish in order to rely on it? - Read more

Publicity remains the “soul of justice” as Supreme Court rules non-party should be allowed access to court documents

The Supreme Court has found that the courts have inherent jurisdiction under the constitutional principle of open justice to grant public access to documents placed before them or referred to during hearings – but “it is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle”. - Read more

New court rules: media claims on the move

From 1 October 2019, all High Court claims that include a claim for defamation, misuse of private information, data protection and/or harassment by publication must be issued in the Media and Communications List (“the List”) in the Queen’s Bench Division. A claim that involves the publication or threatened publication of information via the media, online, or the activities of the media may also be issued in the List. - Read more

Client guides

Misrepresentation: the pitfalls of pre-contract statements

We have created a new guide to “Misrepresentation: the Pitfalls of Pre-contract Statements”. In the guide, we consider the litigation risk of pre-contract statements, the remedies available in connection with false statements and the contractual protections available to affected parties. We also provide some practical tips to help manage litigation risk in this area. - Read more