News
23 August 2011
Carver to be reversed
Before 2008, so long as a claimant beat the defendant’s part 36 offer by any amount, or equalled their own offer, he avoided costs sanctions. But in Carver v BAA [2008] EWCA Civ 412; [2009] 1 WLR 113 CA – where the claimant beat the part 36 offer by £51 – the Court of Appeal said judges should take a broader view of whether the final outcome showed the case was worth the fight. In his final report, Lord Justice Jackson said Carver had introduced “an unwelcome degree of uncertainty into the part 36 regime” and also “tends to depress the level of settlements” because claimants are wary of taking the risk of going to trial. The rule committee has approved a clarification to part 36 that says “‘more advantageous’ means better in money terms by any amount, however small, and ‘at least as advantageous’ shall be construed accordingly”. It will take effect from 1 October, when the 57th update to the Civil Procedure Rules comes into force.
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9 June 2011
Specialist Solicitor Entitled to Rely on Advice of Leading Counsel
In answer to a claim that specialist solicitors advised their client to accept a settlement of litigation which was too low, the solicitors were entitled to say that they relied on the advice of leading counsel.
Langsam v Beachcroft LLP [2011] EWHC 145127 May 2011
Negligent Lorry Drivers Liable to Network Rail
The Court of Appeal upheld the judgment at first instance to the effect that where Network Rail was liable to TOCS as a result of disruption caused by negligent lorry drivers, payments made by NR under access agreements were recoverable as consequential financial loss in negligence against the lorry drivers' employers.
Conarken Group Ltd v Network Rail Infrastructure Ltd [2011] EWCA Civ 644 CA27 May 2011
Time limited offer cannot be a Part 36 Offer
An offer expressed to be under Part 36 and to specify a period of 21 days for acceptance was construed as a Part 36 Offer on the basis that the reference to 21 days was merely a statement of the period within which it could not be withdrawn. Had the reference to 21 days been construed as a period after which the offer could not be accepted, it could not have been a Part 36 Offer.
C v D [2011] EWCA Civ 646 CA25 May 2011
Date for determining whether to stay
Under Article 28 of the Brussels I Regulation, where proceedings in Germany (first seized) and in England (second seized) are not, when they are respectively commenced, "related actions", then an amendment made in the German action to raise an issue before the English court did turn them into related actions. At that point it was appropriate to stay the English proceedings.
Stribog Ltd v FKI Engineering Ltd [2011] EWCA Civ 622 CA12 May 2011
Exclusive Jurisdiction in Brussels I Regulation
The claimant, a New York American investment bank entered into a swap contract with defendant Berlin transport provider BVG, including a clause conferring jurisdiction on the English courts. The claimant brought proceedings under the contract in which the defendant alleged that the contract was ultra vires. BVG disputed the English court's jurisdiction on the ground that Art 22(2) conferred exclusive jurisdiction on the German courts. This was rejected by the ECJ. The validity of a company’s constitution or of a decision of a company’s organs must be raised as the primary issue for Art 22(2) to apply.
Case C-144/10 Berliner Verkehrsbetriebe v J P Morgan Chase Bank NA10 May 2011
No need for prior notification under Article 8 ECHR
The European Court of Justice ruled that having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, that Article 8 ECHR does not require a legally binding pre-notification requirement. Accordingly, there is no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.
Mosley v. United Kingdom [2011] ECHR 7746 May 2011
Alternative Service Rules apply to Service Out of Jurisdiction
CPR 6.15 (which provides for service of documents by alternative means, with permission) applies to service out of the jurisdiction as well as within the jurisdiction. Permission was given to serve a claim form seeking a Norwich Pharmacal Order on defendants in the USA by e-mail.
Bacon v Automattic Inc [2011] EWHC 1072 (QB)3 May 2011
Feasibility study for Instrument in European Contract Law
The Commission Expert Group on European Contract Law has published its Feasibility study for a future instrument in European Contract Law, together with the text of a possible instrument.
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1 May 2011
French Arbitration Law
Decree No. 2011-48 of 13 January 2011 reforming the French law governing arbitration came into force.
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1 May 2011
Lugano Convention 2007 applies to Iceland
The Lugano Convention 2007 was ratified by the Republic of Iceland on 25 February 2011 and entered into force for that country on 1 May 2011.
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28 April 2011
Bar Seeks to Regulate Conduct of Litigation
The Bar Standards Board approved proposals to regulate advocacy focused alternative business structures, legal disciplinary practices and barrister-only entities and allow barristers to conduct litigation. But it has no interest in regulating multi-disciplinary practices.
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27 April 2011
European Mediation Law in Force
The Cross-Border Mediation (EU Directive) Regulations 2011 (SI 2011/1133) providing for suspension of the limitation period where a dispute is being mediated and for the immunity of the mediator from being required to give evidence came into force.
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19 April 2011
Permission to Appeal in Privilege for Accountants Case
The Supreme Court granted Prudential permission to appeal the Court of Appeal decision in Prudential Plc, R (on the application of) v Special Commissioner of Income Tax [2010] EWCA Civ 1094; [2011] 2 WLR 50 that legal professional privilege did not apply to accountants' work but only to qualified solicitors and barristers.
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6 April 2011
Supreme Court hears Arbitrator Religion Appeal
The Supreme Court heard argument in the appeal against the Court of Appeal decision in Jivraj v Hashwani [2010] EWCA Civ 712 that the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) apply to an arbitration agreement prescribing the religion of the arbitrator.
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31 March 2011
Government Substantially Agrees with Jackson Reform Proposals
The Government has largely endorsed Sir Rupert Jackson's reform proposals.
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31 March 2011
Anti-deprivation Principle and a Settlement Agreement
A clause in a settlement agreement relieving the paying party from its obligation to make payment to the receiving party in the event of the latter's insolvency infringed the anti-deprivation principle that prevents the making of a valid contract by which a person's property is to remain his until bankruptcy but is on such event to pass to someone else and so be taken away from his creditors.
Folgate London Market Ltd v Chaucer Insurance Plc [2011] EWCA Civ 32829 March 2011
Immunity of Expert Witnesses Abolished
The Supreme Court has aboliched the immunity from suit formerly enjoyed by expert witnesses.
Jones v Kaney [2011] UKSC 13 SC29 March 2011
Costs Consequences of Discontinuance
A claimant who seeks to persuade the court to depart from the normal position that on service of a notice of discontinuance, they must pay the defendant's costs, must provide cogent reasons for doing so and is unlikely to satisfy that requirement save in unusual circumstances. There may be cases in which it can be said that the defendant has brought the litigation on himself, but even that is unlikely to justify a departure from the rule if the claimant discontinues in circumstances which amount to a failure of the claim.
Brookes v HSBC Bank Plc [2011] EWCA Civ 35429 March 2011
Fiduciary Accepting Bribe does not Hold it on Trust
A bribe paid to a fiduciary cannot be said to be an asset which the fiduciary was under a duty to take for the beneficiary and so no trust in favour of the beneficiary. Accordingly the Court of Appeal declined to follow the Privy Council decision in AG for Hong Kong v Reid [1994] 1 AC 324 PC and preferred to follow other Court of Appeal decisions, particularly Lister & Co v Stubbs (1890) LR 45 Ch D 1
Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd [2011] EWCA Civ 347 CA22 March 2011
EU Seeks involvement in UNCITRAL and ICSID
The Committee on International Trade has tabled a resolution before the European Parliament seeking EU involvement in both dispute resolution bodies.
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22 March 2011
Incorporation of Jurisdiction Clause in Standard Terms
Where auction conditions contained a jurisdiction agreement, the defendant was held to be bound by that agreement in the absence of words near the signature expressly to that effect.
Coys of Kensington Automobiles Ltd v Pugliese [2011] EWHC 655 (QB)1 March 2011
Court Order Served on Facebook
Facebook was permitted for service of a urt order in the Hastings County Court.
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7 March 2011
Offer requesting total capitulation not a Part 36 Offer
In a case in which the claimant alleged infringement of a trademark, an offer by the claimant that "the Defendants will pay to the Claimant an amount in respect of damages or an account of profits, to be assessed by an inquiry as to damages or an account of profits (at the Claimant's election) if not agreed", was not an offer of settlement within the meaning of Part 36.
AB v CD [2011] EWHC 602 (Ch)3 March 2011
CFAs and Subrogated Claims
Where an insurer brought a claim in the name of the insured and financed the litigation on a CFA, the success uplift was in principle claimable against the unsuccesful party.
Sousa v London Borough of Waltham Forest Council [2011] EWCA Civ 194 CA25 February 2011
Party switching experts has to disclose first report
Where a party seeks permission to rely on the evidence of a new expert, permission will normally only be granted on terms that the earlier report is disclosed.
Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 CA23 February 2011
Solicitor's duty to supervise disclosure
The solicitor's client had redacted certain documents before handing them to the solicitor on the ground that revealing the material would be a breach of Swiss law, so the solicitor had never taken an independent view of the removed material. The court refused a wasted costs application (distinguishing cases of removal on relevance grounds, where there is a higher duty on solicitors, from other grounds such as the present) but analysed the cases on solicitors' duties in some detail.
CMCS Common Market Commercial Services AVV v Taylor [2011] EWHC 324 (Ch18 February 2011
Application of UCTA to Entire Agreement Clause
In deciding whether an entire agreement clause validly avoided collateral warranties and representations, section 3(2)(b)(i) of UCTA ("reasonable expectation of the parties") applied.
Axa Sun Life Services Plc v Campbell Martin Ltd [2011] EWCA Civ 13311 February 2011
UK Government Responds to European Contract Law
The UK Government favours the first two options only. It also reports the characterisation of a European contract law (a 29th law, in addition to the laws of the 27 member states and Scots law) as a response to the multiplicity and divergence of law, as counterintuitive and bizarre.
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10 February 2011
Enforcement of Foreign Public Law in English Courts
Where a claimant bank had allegedly been nationalised unlawfully, to the detriment of the defendant, the English Court was not obliged to refuse to entertain its claims based on the defendant's alleged wrongful activities prior to the nationalisation.
JSC BTA Bank v Ablyazov [2011] EWHC 202 (Comm)9 February 2011
Party with no intention to perform cannot claim damages for repudiatory breach
The seller under a rolling supply agreement considered that the buyer had failed to make the purchases required for a number of quarters and purported to accept this as a repudiation. The buyer then alleged that this purported termination was itself a repudiation. The Court of Appeal held that the seller had repudiated. But when it came to the damages to which the buyer was entitled, the Court held that there was no entitlement. Since the buyer was neither ready nor willing to perform the contract itself and it did not seek further performance from the seller the case was analogous to Braithwaite v Foreign Hardwood Company (1905) 2 KB 543 establishing "the principle that a repudiating party has a defence to a claim in respect of that breach by the innocent party if he can establish that, at the time of the repudiation, the innocent party was already irremediably disabled from performance, provided that that inability to perform on the part of the innocent party is not itself attributable to the repudiatory breach." (para [51])
Acre 1127 Ltd (In Liquidation) v De Montfort Fine Art Ltd [2011] EWCA Civ 87 CA9 February 2010
Consequences of Rejecting Offer to Mediate and Part 36 Offer
The Court of Appeal held that the trial judge was wrong to penalise in costs a claimant who succeeded in a small part of her claim on the ground that her previous Part 36 Offer was higher. But the defendant's refusal to mediate was a telling factor. The result was no order as to costs.
Rolf v De Gijerin [2011] EWCA Civ 78 CA31 January 2011
Responses on European Contract Law Green Paper
The European Commission's Green Paper on policy options for progress towards a European Contract Law for consumers and businesses published on 1 July 2010 has prompted responses from the European Parliament as well as English professional bodies. Both the Law Society and the Bar Council support the non-binding “toolbox” to be used by European legislators to improve European legislation, with a common terminology. The Bar Council urges publication of the work of the expert group. The Law Society favours some optional standard form terms and conditions for use in cross-border contracts, but is suspicious of the work of the expert group because of a perceived lack of practitioner experience. Both bodies reject the more radical options put forward by the Commission. On the other hand the European Parliament favours the option of setting up an optional instrument by means of a regulation, to be complemented by a ‘toolbox’ that should be endorsed by means of an interinstitutional agreement.
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28 January 2011
Alternative Service out of Jurisdiction
Despite the apparent lacuna in CPR 6, the court does have power to make an order for an alternative method of service out of the jurisdiction similar to that conferred by CPR 6.15(2), either under CPR 37(5)(b)(i) "Where the court gives permission to serve a claim form out of the jurisdiction ... it may ... give directions about the method of service" or because such power was to be implied generally into the rules governing service abroad.
Abela v Baadarani [2011] EWHC 116 (Ch)25 January 2011
Champerty Confined
Where a solicitor had indemnified a client against a liability to pay the other side's costs, as part of an otherwise lawful CFA, the indemnity was not champertous. Lord Neuberger MR reviewed the authorities on champerty and said (at para [40] "In my judgment, when it comes to agreements involving those who conduct litigation or provide advocacy services, the common law of champerty remains substantially as it was described and discussed in Wallersteiner (No 2) [1975] QB 373 and Awwad [2001] QB 570."
Sibthorpe v London Borough of Southwark [2011] EWCA Civ 25 CA18 January 2011
Fees in Naomi Campbell Case
The rules permitting recovery of a success fee under a CFA of £365,077.13 were disproportionate having regard to the legitimate aims sought to be achieved and exceeded even the broad margin of appreciation accorded to the Government in such matters. There was therefore an infringement of MGN's Art 10 rights (freedom of speech).
MGN Limited v. the United Kingdom18 January 2011
Concurrent tortious duty not inevitable in contract case
The fact that a builder might owe a contractual duty to take care did not result in an inevitable assumption of responsibility for pure economic loss as well.
Robinson v PE Jones (Contractors) Ltd [2011] EWCA Civ 914 January 2011
Jackson's Response
Sir Rupert Jackson has published his response to the robust criticisms made of his final report in a letter to the Lord Chancellor and in its reasoned enclosure.
Response21 December 2010
Requirements for Service Abroad
The rule in CPR 6.40(3)(c) that service may be effected "by any other method permitted by the law of the country in which it is to be served" does not refer to methods that are merely tolerated (not illegal) by that law, but to methods which are effective under that law.
Amalgamated Metal Trading Limited v Barron [2010] EWHC 3207 (Comm) - No link presently available17 December 2010
West Tankers considered in Court of Appeal
Where an arbitration application was before an English court (which application fell outside the scope of the Brussels 1 Regulation) a judgment of another EU court as to the existence of a binding arbitration agreement was an ancillary order in substantive proceedings which were within the Regulation. It therefore followed that the judgment had to be recognised by the English court and gave rise to an issue estoppel between the parties.
National Navigation Co v Endesa Generacion SA [2009] EWCA Civ 139714 December 2010
Reform of the Brussels Regulation
The European Commission has published its proposals for the reform of the Brussels Regulation, including extensive regulation of jurisdiction over non-EU defendants, the arbitration exception and pending actions.
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14 December 2010
A written constitution for the UK?
The Cabinet Office has published a draft of a manual describing the constitution of the UK. This is open for consultation until 8 March 2011.
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10 December 2010
When arbitrator loses status
An arbitrator did not become functus officio in this case merely because the parties had reached a settlement. No consent order had been made. He therefore had jurisdiction not only to make a costs order (s 51 Arbitration Act 1996) but also in relation to further substantive issues.
Dawes v Treasure and Son Ltd [2010] EWHC 3218 (TCC)7 December 2010
Consumer rules under Brussels Regulation
The generous jurisdiction rules are available to consumers if the other party directs their activities to the consumer's member state. In a web based transaction, this may be indicated by such factors as the international nature of the activity; mention of telephone numbers with the international code; use of a domain name such as .com or .eu; the description of itineraries from one or more other Member States to the place where the service is provided; mention of an international clientele and sometimes different langauge versions of the site.
Pammer (Area of Freedom, Security and Justice) [2010] EUECJ C-585/0827 October 2010
Switzerland ratifies Lugano Convention
Switzerland has now ratified the Lugano Convention, which therefore comes into force on 1 January 2011 as regards that country.
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19 October 2010
Freezing order catches trust assets
The new form of freezing order in the Commercial Court can be obtained tro freeze assets of which the respondent is a trustee, in a suitable case.
JSC BTA Bank v A [2010] EWCA Civ 114119 October 2010
Relationship between Brussels 1 and Insolvency Regulations
Where a company was subject to insolvency proceedings in Spain, nothing in the European Union Insolvency Regulation 1346/2000 or the Brussels 1 Regulation 44/2001 prevented an English court from making a declaration as to the company's breach of contract, though no immediate order for payment could be made.
Gibraltar Residential Properties Ltd v Gibralcon 2004 SA [2010] EWHC 2595 (TCC)7 October 2010
IBA Guidelines for Arbitration Clauses
At the IBA Annual Conference in Vancouver, the IBA Council approved the new IBA Guidelines for Drafting International Arbitration Clauses.
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15 October 2010
Date seized
Where an English claim form was issued but not served for 6 weeks, during which German proceedings were issued, the English court was the court first seized within Art 30 of the Brussels 1 Regulation. It was not material to consider whether the delay in service was reasonable, only to consider what steps the claimant "was required to take". No such steps were required.
UBS AG, London Branch v Kommunale Wasserwerke Leipzig GmbH [2010] EWHC 2566 (Comm)1 October 2010
Amendments to Network Code
Significant amendments were made to Part D, which concerns train timetabling and which forms an important part of the contractual relationship between Network Rail and the train operating companies.
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1 October 2010
New E-Disclosure Rules
The new rules on e-disclosure come into force.
The Civil Procedure (Amendment No.2) Rules 2010 (SI 2010/1953)21 September 2010
Summary Judgment for Possession Infringes Art 8
In this long running case, which culminated in the English Courts in Kay v London Borough of Lambeth [2006] 2 AC 465; [2006] UKHL 10; [2006] 2 WLR 570 HL the ECJ held that a summary judgment procedure for possession of public housing which provided no opportunity for the proportionality of the measure to be assessed by an independent tribunal amounted to a breach of Article 8 of the European Convention on Human Rights.
Kay v The United Kingdom [2010] ECHR 1322 ECJ14 September 2010
In-house Lawyers - No Legal Professional Privilege
The European Court of Justice declined to reverse the decision of the Court of First Instance or its previous decision in Case 155/79 AM & S Europe v Commission [1983] 1 All ER 705; [1982] EUECJ C-155/79; [1982] FSR 474; [1982] ECR 1575; [1983] 3 WLR 17; [1982] 2 CMLR 264; [1983] QB 878 ECJ to the effect that communications between in-house lawyers and other employees of the same company do not attract legal professional privilege in the European law context.
C-550/07 Akzo Nobel Chemicals v Commission (Competition) [2010] EUECJ1 August 2010
Access Dispute Resolution Rules
The new rules for determination of access disputes in the railway industry came into force.
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27 July 2010
High Court Refers Rome 2 Commencement Issue to ECJ
Article 31 of the Rome 2 Regulation provides that "This Regulation shall apply to events giving rise to damage which occur after its entry into force." But it is a matter of controversy what this means and the issue has now been referred to the ECJ.
Homawoo v GMF Assurance SA [2010] EWHC 1941 (QB)26 July 2010
Government Announces Position on Jackson Report
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly) announced the Government's intention to consult in the autumn on implementing Lord Justice Jackson's recommendations.
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21 July 2010
Negligent Lorry Drivers Liable to Network Rail
Where Network Rail was liable to TOCS as a result of disruption caused by negligent lorry drivers, payments made by NR under access agreements were recoverable as consequential financial loss in negligence against the lorry drivers' employers.
Network Rail Infrastructure Ltd v Conarken Group Ltd [2010] EWHC 1852 (TCC)13 July 2010
Confidentiality Rules Revised
Rule 4.05 of the Solicitors Code of Conduct 2007 has been revised so that solicitors can (subject to exceptions and safeguards) take on work which, from inception, can be seen to raise a conflict between a duty of confidentiality to client A and a duty of candour to client B.
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1 July 2010
Failure to Apply Foreign Law
A challenge to an arbitration award under ss 67 and 68 of the Arbitration Act 1996 on the ground that the tribunal did not apply Spanish law failed. In order to succeed, the applicant had to demonstrate conscious disregard of the governing law, which is an allegation of impropriety and applicant eschewed that allegation.
B v A [2010] EWHC 1626 (Comm)1 July 2010
European Contract Law Green Paper
The European Commission has published its Green Paper on policy options for progress towards a European Contract Law for consumers and businesses, putting forward 7 possible approaches:(1) publication of the results of the Expert Group; (2) an official toolbox for the legislator to be implemented by way of (a) a Commission act, or (b) an inter-institutional agreement; (3) a Commission Recommendation on European Contract Law; (4) a Regulation setting up an optional instrument of European Contract Law; (5) a Directive on European Contract Law; (6) a Regulation establishing a European Contract Code; and, (7) a Regulation establishing a European Civil Code.
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