Mon06262017

Last updateTue, 24 Feb 2015 5pm

Paolo Sidoli looks at a reassertion of privilege by the Court of Appeal

In Avonwick Holdings Ltd v Shlosberg [2016], the Court of Appeal considered whether privilege attaching to a bankrupt’s documents constituted property which vests in a trustee in bankruptcy and, if so, what use can be made of the privileged documents in the exercise of a trustee’s statutory powers.

David Sawtell assesses the utility of notification injunctions

In Holyoake v Candy [2016] Nugee J gave jurisprudential legitimacy to the use of a notification injunction to help prevent a respondent from dissipating assets. By this type of order, a party is required to give notice when certain assets are disposed of. Depending on the wording of the order, the notice can be given either before or after the relevant disposal. This form of order is less onerous than a typical freezing injunction. Although such orders have been sought and obtained before, this was the first case where the relevant jurisdiction to make such an order was fully discussed. As such, it throws light on the test that the court will apply before making such an order, as well as the likely form of such an order.

Maura McIntosh summarises a currency-sensitive judgment

When assessing the costs to which a German claimant was entitled on having succeeded in its patents claim in the English High Court, the court in Elkamet Kunststofftechnik GmbH v Saint-Gobain Glass France SA [2016] has awarded an additional sum of £20,000 to compensate for the claimant’s exchange rate loss on payments to its solicitors, particularly in light of the significant fall in the value of sterling against the euro since the EU referendum result.

Andrew Beck and Gwendoline Davies return to update the law and practice of legal advice privilege and litigation privilege

In January 2016 we reviewed the law of legal advice privilege and the key cases which had hit the legal headlines in the preceding year (‘Practice makes privileged’, CLJ65, January/February 2016, p19). Privilege has continued to dominate as a hot topic for commercial litigators and so we return to provide an update and practical advice.

Clare Arthurs and Richard Marshall take a view on the direction of reform

This time last year, we were reeling from Jackson LJ’s proposal to extend fixed recoverable costs across all types of cases under £250,000; this proposal, he said in his speech to the Insolvency Practitioners Association in January 2016, could be implemented by the end of 2016, if the political will was there. Perhaps unsurprisingly, given last year’s events, the political will appeared to be (at least temporarily) elsewhere. But what might the future hold for litigation?

James Morrison outlines a recent application for security for costs

In Agents’ Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman) [2016], the defendant sought additional security for costs in a claim relating to the terms of membership of online property portal OnTheMarket. The claimant had already provided security of £500,000. However, the defendant sought a further £1m in circumstances where it estimated that its total costs would be just over £2.8m.

Jane Parsons examines emergency relief in arbitration

It was commonly thought that the provisions for emergency relief under the London Court of Arbitration (LCIA) Rules 2014 increased a party’s options, in that there was a choice between applying to the arbitral tribunal or the English court for such relief. However, the recent judgment of Gerald Metals SA v Timis [2016] strongly indicates that the court’s powers and parties’ options are in fact restricted in circumstances where the tribunal is able to provide timely and effective relief under the LCIA Rules.

Tom White and Emma Holmes return to the problem of court fees

In 2015 we saw some substantial rises in court fees, including, in particular, fees for issuing claims. This rise in fees saw vehement opposition in some quarters, on the basis that it would become uneconomic or prohibitively high for some claimants to bring their claims. We have now started to see examples in practice where, on the face of the claim form, claimants may have not paid the correct issue fee. There have been a number of recent cases in which the courts have considered this issue, in response to attempts by defendants to knock out claims on the basis of limitation arguments following payment of incorrect court fees. As the cases make clear, the approach that the courts will take depends on the reasons behind the payment of the incorrect fee. The calculation and payment of correct fees is something that claimants’ and defendants’ solicitors need to be aware of, or they may face potential allegations of negligence.