Court of Appeal upholds disclosure order despite risk of prosecution in Iran

22 March, 2019

The Court of Appeal has upheld a first instance decision requiring the claimant Iranian bank to produce customer documents in unredacted form, subject to measures to protect their confidentiality, despite the fact that compliance would put the claimant in breach… Read more

Supreme Court clarifies test for setting aside judgment for fraud

21 March, 2019

The Supreme Court has resolved uncertainty as to the test that must be met when seeking to set aside a judgment on the grounds that it was obtained by fraud. Overturning the Court of Appeal's decision, it confirmed that there… Read more

High Court refuses permission for collateral use of disclosed documents and witness statements to respond to US grand jury subpoena

19 March, 2019

In a decision illustrating the court's strict approach to the rule prohibiting the use of disclosed documents and witness statements for a collateral purpose, the High Court has refused a party permission to provide disclosed documents and witness statements to… Read more

Court of Appeal finds clause imposing liquidated damages for delay did not apply where work was never completed

18 March, 2019

In a recent decision, the Court of Appeal held that a clause providing for liquidated damages for delay did not apply where the contractor failed to complete the contracted work (the installation of a new software system). The employer under… Read more

Upcoming webinar – Privilege update: some old problems remain and some new ones emerge

15 March, 2019

On Tuesday 19 March (12.30 – 1.30pm GMT), Julian Copeman, Anna Pertoldi and Maura McIntosh will deliver a webinar for Herbert Smith Freehills clients and contacts looking at developments in the English law of privilege over the past six months.… Read more

Open Justice: Rule changes to increase transparency in the civil courts

14 March, 2019

From 6 April 2019, a number of changes to the Civil Procedure Rules will come into effect with the intention of reinforcing the principle of open justice and clarifying how it operates in the civil courts. The amendments include: emphasising… Read more

Shareholder class actions – new webinar and “handy client guide”

13 March, 2019

Herbert Smith Freehills has today released the third in our series of webinars on class actions in England and Wales, looking at shareholder class actions. In the presentation Simon Clarke, Harry Edwards and Kirsten Massey discuss the outlook for shareholder… Read more

High Court considers application of much-criticised exception to without prejudice rule

12 March, 2019

The High Court has held that the content of "without prejudice" ("WP") communications between the parties to the proceedings was inadmissible, though the fact of the WP negotiations could be referred to. The counterparty to the WP communications would be… Read more

Court of Appeal gives guidance on scope of fiduciary duty in “secret commissions” case

12 March, 2019

The Court of Appeal has found that there was no breach of fiduciary duty where an introducing broker failed to inform its client investors of the amount of commission it received from the financial institution to which it had introduced… Read more

High Court restrains claimants from using defendant’s privileged material obtained from third parties in unknown circumstances

1 March, 2019

A recent High Court decision demonstrates that, whilst confidentiality is a prerequisite to a claim for privilege, information will not cease to be confidential unless it is in fact known to a "substantial number of people": Winstone v MGN Ltd [2019] EWHC… Read more

Inadequate explanation, no relief: A reminder of the potential tough consequences of failing to comply with a court order

28 February, 2019

The High Court has refused an application for relief from sanctions in relation to a failure to comply with an unless order for the payment of costs arising from a failed interlocutory application: Consult II SRO v Shire Warwick Lewis Capital… Read more

Supreme Court considers loss of chance in professional negligence claim

27 February, 2019

The Supreme Court has given a rare judgment on the court's approach to awarding damages for a "loss of a chance" in a professional negligence claim: Perry v Raleys Solicitors [2019] UKSC 5. The decision confirms the approach laid down by… Read more

High Courts finds European Medicines Agency lease not frustrated by Brexit

21 February, 2019

The High Court has rejected an argument that the European Medicines Agency's (EMA's) lease of premises at Canary Wharf will be frustrated as a result of the UK's withdrawal from the EU: Canary Wharf (B4) T1 Ltd and others v… Read more

Previous expert’s draft report did not have to be disclosed where court had already granted permission to rely on a different expert

20 February, 2019

Where a claimant had already been granted permission to call an expert, and it later came to light that the claimant had previously instructed a different expert, the High Court refused to impose a condition requiring disclosure of the previous… Read more

Upcoming webinar – Cross Border Litigation Update

20 February, 2019

On Wednesday 27 February 2019 (1.00 - 2.00pm GMT), Anna Pertoldi and Gary Milner-Moore will deliver the latest in our series of webinars for Herbert Smith Freehills clients and contacts spotlighting legal and practical issues relevant to litigating cross-border disputes. This webinar will examine a… Read more

Draft Civil Procedure Rule changes in the event of a no deal Brexit

18 February, 2019

The government has published a draft statutory instrument, the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, which makes amendments to the CPR that are consequential on the various other civil justice measures that are to be implemented in… Read more

Supreme Court overturns decision finding contract incomplete and declining to imply term

14 February, 2019

The Supreme Court has unanimously held that a binding agreement was reached between a property seller and an estate agent, despite the parties not having specified the circumstances in which the agreed rate of commission would fall due: Wells v… Read more

High Court finds director can be served with all documents relating to proceedings at address registered at Companies House

14 February, 2019

The High Court has held that section 1140 of the Companies Act 2006 permits service on a director, of all documents relating to proceedings against that individual, at the address they have registered at Companies House: Brouwer v Anstey [2019]… Read more

Drafting contracts: Key lessons from 2018

12 February, 2019

This annual contract law update from our corporate team considers a number of interesting contract law cases which have highlighted key points for those involved in drafting or managing contracts. The cases chosen deal with a variety of matters including implied… Read more

Court of Appeal clarifies “advice” vs “information” distinction when applying SAAMCO principle in advisers’ negligence cases

11 February, 2019

The Court of Appeal has confirmed that an auditor was not liable for break costs incurred as a result of its negligent advice in relation to the accounting treatment of interest rate swaps, as those costs fell outside the scope… Read more

Government accepts need for greater clarity in regulations governing damages-based agreements

7 February, 2019

The government has today published the results of its post-implementation review of the key legislation that implemented the costs and funding aspects of the Jackson reforms in April 2013: Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2013… Read more

High Court makes non-party costs order against liability insurer

7 February, 2019

In a recent decision, the High Court has made a non-party costs order against a law firm’s professional indemnity insurer, in circumstances where the insurer had effectively relinquished control of the defence of the litigation: Various Claimants v Giambrone &… Read more

High Court orders Tesco to disclose SFO documents in s.90A FSMA shareholder class action

6 February, 2019

The High Court has ordered Tesco to disclose, in civil proceedings brought by its shareholders under s.90A of the Financial Services and Markets Act 2000 ("FSMA"), documents that the SFO had provided in confidence to Tesco's legal representatives in the… Read more

Court of Appeal gives guidance on how to apply jurisdiction test laid down by Supreme Court

29 January, 2019

The Court of Appeal has considered how the test for establishing English jurisdiction should be applied where there is a dispute over the facts relevant to jurisdiction: Kaefer Aislamientos SA de CV v AMS Mexico SA de CV [2019] EWCA… Read more

Court of Appeal confirms defendants not obliged to make enquiries of third parties before pleading non-admissions

29 January, 2019

The Court of Appeal has rejected an argument that a defendant must make reasonable enquiries of third parties before pleading in its defence that it is unable to either admit or deny an allegation and requires the claimant to prove… Read more

High Court upholds claim to privilege in respect of underlying instructions to law firm relating to escrow monies

28 January, 2019

The High Court has rejected an application for disclosure of documents containing the underlying instructions to a law firm acting for a party funding a transaction, in circumstances where the law firm provided a confirmation to the seller as to… Read more

Court of Appeal finds interim contract incorporated terms and conditions including limitation of liability

25 January, 2019

In a recent judgment, the Court of Appeal has overturned a High Court decision which found that the defendant had undertaken preliminary work for a building project under an interim contract which did not incorporate any terms and conditions. The… Read more

Know when to apply for permission to appeal to the Court of Appeal: time runs from when judgment is handed down, not when the lower court refuses permission

23 January, 2019

A recent Court of Appeal decision clarifies the rules on applying for permission to appeal to the Court of Appeal - which, the court noted, are often not properly understood by would-be appellants: McDonald v Rose [2019] EWCA Civ 4.… Read more

Article published – No-deal Brexit and disputes: what do parties need to know?

22 January, 2019

If the UK leaves the EU without a deal on 29 March, what impact will that have on court proceedings? Different questions arise depending on the stage reached in the disputes process. Anna Pertoldi has published a post on Practical Law’s… Read more

Application of the Brussels regime post-Brexit

21 January, 2019

The government has published a draft statutory instrument addressing, among other things, the question of how the UK courts will, post-Brexit, treat questions of jurisdiction involving EU member states and the enforcement of judgments given by EU member state courts, assuming… Read more

Conflicting first instance decisions on whether default judgment can be granted where acknowledgement of service filed late

18 January, 2019

In a recent judgment, the High Court rejected an application for default judgment on the basis that the defendant's acknowledgement of service, though late, had been filed shortly before the application: Cunico Resources NV v Daskalakis [2018] EWHC 3382 (Comm).… Read more

Article published – Discussing settlement options: minding the gap between litigation privilege and the without prejudice rule

15 January, 2019

The recent Court of Appeal decision in WH Holding Ltd v E20 Stadium LLP [2018] EWCA Civ 2652 (outlined here) found that litigation privilege applies only to documents created for the dominant purpose of obtaining advice or information/evidence in relation to litigation,… Read more

Court of Appeal confirms correct legal test for determining a principal’s liability for its agent’s fraudulent misrepresentation

10 January, 2019

The Court of Appeal has confirmed that, where a claimant has suffered loss in reliance on an agent's fraud, the principal will be vicariously liable only if the fraudulent conduct was within the agent's actual or ostensible authority: Winter v… Read more

Upcoming webinar – Disclosure pilot scheme in the Business and Property Courts

9 January, 2019

On Wednesday 16 January (12.30 – 1.30pm GMT), Julian Copeman and Rachel Lidgate will deliver a webinar for Herbert Smith Freehills clients and contacts entitled "The Disclosure Pilot Scheme in the Business and Property Courts – An overview of the major… Read more

Capped costs pilot to start 14 January for claims up to £250,000

8 January, 2019

A voluntary capped costs pilot will run for two years from 14 January 2019 for cases valued at between £100,000 and £250,000 in the London Circuit Commercial Court (formerly the Mercantile Court) and the business and property courts in Manchester… Read more

UK deposits instrument of accession to Hague Convention on Choice of Court Agreements

4 January, 2019

On 28 December 2018, the UK deposited its instrument of accession to the Hague Convention on Choice of Court Agreements 2005. The Convention will therefore come into force for the UK on 1 April 2019, in accordance with article 31… Read more

Court of Appeal holds SPA earn-out unenforceable as an agreement to agree

19 December, 2018

The Court of Appeal has rejected a seller's claim that he was entitled under a sale and purchase agreement ("SPA") to provide consultancy services to the target company for a further period after an initial four year earn-out. Applying settled… Read more

Permission for expert evidence of financial market practice refused in relation to allegations of dishonesty but granted for other purposes

19 December, 2018

In a recent decision, the High Court refused the defendant financial advisers and agents permission to call expert evidence of financial market practices in relation to an allegation that they had acted dishonestly: Carr v Formation Group Plc [2018] EWHC… Read more

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