Year: 2010

Brussels Regulation: The Commission proposes radical changes to rules on jurisdiction and enforcement of judgments

16 December, 2010

On Tuesday (14 December 2010) the Commission published its eagerly anticipated proposals relating to reforms to the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation). The proposals… Read more

Offer “open for 21 days” not a valid Part 36 offer

29 November, 2010

A recent High Court judgment has important practical implications for how offers are drafted under Part 36 of the Civil Procedure Rules (CPR) and for the possible costs consequences of offers previously made: C v D & D2 [2010] EWHC… Read more

Court of Appeal refuses to extend boundaries of representative action procedure to create English class action

18 November, 2010

The Court of Appeal has today dismissed the claimants' appeal in Emerald Supplies Ltd and another v British Airways PLC [2010] EWCA Civ 1284, refusing to allow the action to proceed as a representative action under Civil Procedure Rule (CPR)… Read more

Government consultation on Jackson reforms on civil litigation funding and costs

16 November, 2010

The Ministry of Justice yesterday published its consultation entitled "Proposals for Reform of Civil Litigation Funding and Costs in England and Wales – Implementation of Lord Justice Jackson's recommendations". As anticipated following the government's announcement to Parliament this summer, the… Read more

Supreme Court confirms new exception to the ‘without prejudice’ rule

12 November, 2010

In its judgment handed down on 27 October 2010 in Oceanbulk Trading & Shipping SA v TMT Asia [2010] UKSC 44, the Supreme Court added a new exception to the 'without prejudice' rule. It held that facts communicated between parties… Read more

Security for costs: where claim and counterclaim raise same issues

12 November, 2010

A recent High Court judgment considers the principles that apply in security for costs applications where similar issues arise on both claim and counterclaim (Dumrul v Standard Chartered Bank [2010] EWHC 2625 (Comm)). Following this judgment, if a defendant seeks… Read more

Commercial Court refuses enhanced disclosure order

12 November, 2010

A recent judgment of the Commercial Court demonstrates the difficulty of obtaining a broad order for enhanced or "train of enquiry" disclosure, even where the case involves very large sums and there are allegations of dishonesty: Berezovsky v Abramovich [2010]… Read more

Recent cases on difficult issues in the law of damages

12 November, 2010

The law of damages might at times seem the "poor cousin" of commercial litigation, with both litigants and courts focusing much more time and attention on the principles relating to liability. However, two recent judgments show that the assessment of… Read more

Court of Appeal reins in “loss of a chance” approach in commercial claims

12 November, 2010

In Law Debenture Trust Corporation PLC v Elektrim SA [2010] EWCA Civ 1142, the Court of Appeal has suggested that the courts should not be too ready to apply the "loss of a chance" approach to assessing damages in a… Read more

Legal advice privilege: only for lawyers

13 October, 2010

The Court of Appeal has today handed down judgment confirming that legal advice privilege does not apply to any professional other than a qualified lawyer, i.e. a solicitor or barrister, or an appropriately qualified foreign lawyer: R (on the application… Read more

Privilege after Akzo – a checklist for in-house lawyers

24 September, 2010

The European Court of Justice decision in Akzo confirms that, for the purposes of EU law, legal professional privilege does not apply to communications between in-house lawyers and their clients (see post). The decision affects legal professional privilege only in… Read more

Jurisdictional test for pre-action disclosure considered by the High Court

16 September, 2010

Flaux J in Alan Kneale v Barclays Bank plc [2010] EWHC 1900 (Comm) has taken a robust approach to an application for pre-action disclosure of a credit agreement which he said "smacked of 'Micawberism', the hope that something will turn… Read more

New rules in relation to the disclosure of electronic documents in High Court proceedings

16 September, 2010

A new Practice Direction (PD) and Electronic Documents Questionnaire will apply to the disclosure of electronic documents in multi-track cases started in the High Court on or after 1 October 2010. The new PD and questionnaire have been developed out… Read more

Conflicting jurisdiction clauses in complex financial transactions – further guidance from the Court of Appeal

16 September, 2010

The turmoil in economic markets has not surprisingly resulted in a number of court cases concerning complex financial transactions often with cross-border elements. Those transactions are commonly documented in a number of related agreements, whether entered into contemporaneously or over… Read more

High Court revisits the jurisdictional scope of freezing injunctions against third parties

16 September, 2010

It has long been held that the English court has power to grant a freezing injunction against a third party (against whom no claim lay), provided that it is ancillary and incidental to a good arguable claim against a defendant… Read more

Court of appeal rules on whether justice could be obtained in Ukraine courts

16 September, 2010

In Pacific International Sports Clubs Limited v Igor Surkis & Ors [2010] EWCA Civ 753 the Court of Appeal had to consider the circumstances in which proceedings might be brought in England although the courts of another country (in this… Read more

European Court of Justice confirms that privilege does not apply to in-house lawyers under EU competition law

14 September, 2010

The European Court of Justice (ECJ) has today handed down judgment in the Akzo privilege case, confirming that legal professional privilege does not apply to protect communications between parties and their in-house lawyers from disclosure during competition investigations by the… Read more

Endeavouring to understand endeavours obligations

3 September, 2010

"Reasonable endeavours", "best endeavours" and "all reasonable endeavours" undertakings are commonly found in all types of commercial contracts and are frequently subject to negotiation. However, despite their ubiquitous use, the actual meaning of these expressions, and the extent of the… Read more

US Supreme Court restricts the extra-territorial application of US securities legislation

1 July, 2010

In a decision of great significance to non-US issuers and their shareholders, the US Supreme Court has clarified and restricted the extra-territorial application of the anti-fraud provisions of US federal securities laws. On 24 June 2010, the US Supreme Court… Read more

Part 36 offers: make your intentions clear

29 June, 2010

In a judgment handed down on Friday 25 June, the Court of Appeal has held that an offer made under Part 36 of the Civil Procedure Rules (CPR) may remain open for acceptance even if it has previously been rejected… Read more

The Review of the Brussels Regulation and the efficacy of jurisdiction and arbitration clauses

8 June, 2010

The Brussels Regulation (Council Regulation (EC) No 44/2001) sets out detailed rules on the jurisdiction of courts and the enforcement and recognition of judgments within the EU, including rules relating to jurisdiction agreements and the interface of the Regulation with… Read more

European Commission to launch broad consultation on collective actions before progressing proposals for competition claims

7 June, 2010

Over the past few years the European Commission has taken steps toward the reform of collective redress procedures in two areas: (i) damages actions for breach of EC competition law (by consumers or business); and (ii) consumer claims more generally.… Read more

Disclosure of confidential settlement agreements

7 June, 2010

The recent High Court judgments in the case of Cadogan Petroleum Plc and others v Mark Tolley and others [2010] EWHC 1107 and [2009] EWHC 3291 give a good illustration of when a settlement agreement with one defendant will be… Read more

The limit of contractual damages addressed by the Commercial Court

7 June, 2010

The recent case of Sylvia Shipping Co Limited v Progress Bulk Carriers Limited [2010] EWHC 542 (Comm) provided the High Court with an opportunity to consider the law on damages and, in particular, whether the law on remoteness had been… Read more

Government removes class action provisions from Financial Services Act

13 April, 2010

The Financial Services Act 2010 has now received Royal Assent, after receiving expedited passage through Parliament in the "wash-up" procedure before the general election. However, the provisions relating to collective actions in the financial services sector were removed from the… Read more

Commercial Court rules that disclosure in litigation does not alter duty of confidence owed by former employees

31 March, 2010

The Commercial Court has held that the duty of confidence owed by two ex-employees is not extinguished by their ex-employer's disclosure of confidential documents to a counterparty in the course of litigation. As a result, the ex-employees could not provide… Read more

Defining common issues for a Group Litigation Order

31 March, 2010

A Group Litigation Order (or GLO) is a procedural tool allowing the court to manage a number of separate claims which give rise to "common or related issues of fact or law". These issues are referred to as the "GLO… Read more

Supreme Court rules that contract exists despite “subject to contract” provision

31 March, 2010

A case involving the impact of a counterparts clause in a draft agreement has gone all the way to the Supreme Court, which ruled on 10 March that a contract existed. In RTS Flexible Systems v Müller [2010] UKSC 14,… Read more

Professional negligence – Court of Appeal rules on limitation and the timing of loss

31 March, 2010

The Court of Appeal in Pegasus Management Holdings SCA & Anr v Ernst & Young & Anr [2010] EWCA Civ 181 has ruled that the limitation period for a claim for breach of duty against a professional adviser will run… Read more

Civil litigation costs review: The final report – A seminar with Lord Justice Jackson

24 February, 2010

Herbert Smith held a client event on 11 February 2010 to discuss the final report in Lord Justice Jackson's year-long costs review, which was published on 14 January (see post). Lord Justice Jackson spoke briefly on next steps, including his… Read more

Without prejudice: extent of unambiguous impropriety exception clarified

29 January, 2010

In Williams v Hull [2009] EWHC 2844 (Ch) Arnold J upheld the 'without prejudice' status of a letter, deciding also that the 'unambiguous impropriety' exception did not apply notwithstanding a serious risk of perjury. Key points arising from the decision include:… Read more

Privilege update

29 January, 2010

The recent case of Tchenguiz v Imerman [2009] EWHC 2902 gives guidance on when lawyers' annotations (in particular highlighting or underlining on documents) are protected by legal professional privilege. It is well settled that pre-existing documents do not become privileged… Read more

Herbert Smith secures victory for BSkyB in landmark litigation against EDS

26 January, 2010

Herbert Smith's dispute resolution team has secured a major victory for BSkyB against IT supplier EDS (now part of Hewlett-Packard) in a claim for deceit, negligent misrepresentation and breach of contract. The judgment was handed down this afternoon by Mr… Read more

Final report published today in Lord Justice Jackson’s year-long costs review

14 January, 2010

The final report in Lord Justice Jackson's civil litigation costs review was published this morning. The report presents the Judge's findings and supporting evidence following his year-long review. It will now be for the Ministry of Justice to consider the… Read more

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