Mon06262017

Last updateTue, 24 Feb 2015 5pm

Gwendoline Davies and Andrew Beck explain the important principle of legal advice privilege and offer their practical advice

Privilege is a hugely valuable legal right, and hit the legal headlines nationally and internationally in 2015. It entitles a client to withhold documents (including electronic communications) from a court or third party, without any adverse inferences being drawn.

Chris Syder outlines the requirements of slavery and human trafficking statements

The Modern Slavery Act 2015 (the Act) requires both UK and foreign companies and other commercial organisations (including partnerships and LLPs) that carry out any business in the UK and have a global annual turnover of £36m or more to prepare and publish a slavery and human trafficking statement (statement) for each financial year. Around 12,000 large UK companies will be caught by this financial threshold. Businesses with a year-end of 31 March 2016 will be the first required to publish a statement under this new transparency provision. Consequently these businesses should start seriously considering the requirements for a statement.

Clare Arthurs and Richard Marshall assess the value of early neutral evaluations

Litigation, the Pre-Action Practice Direction tells us, should be ‘a last resort’. That same PD states sternly that parties should consider the possibility of reaching a settlement at all times, including after proceedings have been started. It then lists several forms of alternative dispute resolution (ADR) which parties might consider. Among them (para 10(c)) is ‘early neutral evaluation, a third party giving an informed opinion on the dispute’.

Paul Joukador and Nathan Searle report on a landmark Supreme Court judgment

It is common practice to include a clause in a contract which specifies that predetermined compensation (commonly a sum of money or transfer of an asset) is due to the innocent party upon breach of the contract by another party. A key concern for these clauses is whether they are classified as liquidated damages, which are enforceable, or penalties, which are not. In these two cases the Supreme Court was asked to re-examine the long-standing rule against penalties to determine if it was fit for purpose and whether it should be extended or dispensed with entirely. The court decided not to abolish the rule, but it did confirm that the application of penalties is narrower than previously thought.

Maura McIntosh explores a recent judicial interpretation of Part 36

The High Court has held that an offer to settle was not a valid Part 36 offer since it related only to a claim put forward in draft amended particulars of claim: Hertel v Saunders [2015].

Teresa Rosen Peacocke investigates whether recent rule changes make US discovery more limited than UK disclosure

Civil litigation procedure has in some important respects developed differently in the US and the UK. One of the principal differences has been the availability in the US of expansive and seemingly unlimited discovery. However, this may soon no longer be the case. In fact, there is a possibility that disclosure in the UK will become (potentially) more expansive than discovery under US courts. This is due to the fact that amendments to the Federal Rules of Civil Procedure (FRCP), coming into effect in the US on 1 December 2015, will eliminate the discoverability of material ‘reasonably calculated to lead to the discovery of admissible evidence’, whereas the UK equivalent of this test – the Peruvian Guano test – is still provided for in certain specific circumstances in UK litigation.

David Sawtell summarises recent costs judgments

Costs budgeting is now a familiar part of the litigation landscape. Costs management hearings are supposed to be carried out quickly and with the application of a fairly broad brush. Only in exceptional cases do we see the court going through a Precedent H in granular detail. When that does take place, we begin to see how the courts are considering proportionality and reasonableness.

Adam Dyl takes stock of the implementation of costs reforms

It has been a few years now since Jackson LJ proposed reducing the costs in litigation by putting proportionality before whether those costs were reasonably or necessarily incurred. This article aims to explore what impact the new rules have had.