Wed11222017

Last updateTue, 24 Feb 2015 5pm

Andrew Hutcheon and Sam Prentki investigate the impact of Brexit and recent case law on the ‘Italian Torpedo’

Prior to the recasting of the Brussels I Regulation (Council Regulation (EC) 44/2001), readers will be familiar with the litigation tactic known as the ‘Italian Torpedo’. The phrase aptly describes the strategy by which a recalcitrant defendant, who had agreed (via an exclusive jurisdiction clause) to determine disputes in the courts of a particular member state, would subvert the agreed choice of jurisdiction clause by commencing proceedings in a court of a different EU member state. This was possible because of the lis pendens rules (from ‘lis alibi pendens’ – suit pending elsewhere) that concern cases in more than one EU member state involving the same cause of action. The EU’s lis pendens rules were found in Art 27 of the Brussels I Regulation and are now contained in Art 29 of the Brussels I Regulation (Recast): Council Regulation (EU) 1215/2012, which came into force in January 2015 (the Recast Regulation). Where the courts of a member state were first seised, any other member state would have to stay subsequent proceedings before them pending resolution in the first-seised courts. This was so under the Brussels I Regulation even if the governing agreement between the parties contained an exclusive jurisdiction clause in favour of the second-seised state (the ‘first-in-time’ rule).

Richard Walford looks at the future of notification orders

The dealings between Mr Mark Holyoake and the Candy brothers have caused a welter of accusation and counter-accusation: as might be expected in hard-fought and high-value litigation, there have been numerous interlocutory applications, one of which spawned an apparently new form of injunction, the notification order. So what is a notification order, and does it have utility in other commercial cases?

Michael Davar analyses the recent case of Astor and the principle of futility in contractual construction

In his judgment in Astor Management AG v Atalaya Mining plc [2017], Leggatt J stated that:

David Schmitz considers how to approach nuisance cases where the character of an area has changed

In Coventry v Lawrence [2014], the Supreme Court addressed a number of fundamental questions relating to the law of nuisance. One of these questions was the following:

Andrew Beck, Andrew Bennett and Gwendoline Davies assess the AIG Europe case and its implications for all those bringing, facing or insuring multiple claims against solicitors

AIG Europe Ltd v Woodman [2017] arose following the bringing of multiple solicitors’ negligence actions against AIG’s insured, a now-defunct law firm. The claims were issued by investors who had lost money under trusts covering two property schemes in Morocco and Turkey which had been developed by one of the firm’s clients. AIG argued that all of the claims were founded on the fact that the solicitors released monies too early or at all in respect of the two developments and therefore that they met the aggregation test, set out in clause 2.5 of the Law Society’s minimum terms and conditions for solicitors’ professional indemnity insurance (MTC), for claims arising from ‘similar acts or omissions in a series of related matters or transactions’. This was relevant because the insurer wished to rely on the aggregation clause to limit its liability.

Clare Arthurs and Nicole Finlayson present a few recent legal highlights

Whisper it, but – for the first time ever – we have sympathy with our politicians. How to choose which issues to highlight? What some of you find central to your practice, others may dismiss as a sideshow. Focusing on the bigger (often already much discussed) issues may lead to eye-rolling or disengagement… and there are so many issues to cover! Here are our (s)elected few for this edition.

Tom White and Claire Curtis explore how technology is revolutionising dispute resolution

Technology and the law is certainly not a new partnership, although it is fair to say that the legal sector has traditionally not embraced technology as readily as some others. Whether such reluctance is borne out of tradition, an aversion to risk, a disinclination to move with the times, or a lack of resources, the truth is that technology is here to stay and offers the legal sector an opportunity to offer a more efficient, cost-effective service.

James Popperwell and Nikolas Ireland examine a recent case looking at contract formation

The High Court’s recent decision in MacInnes v Gross [2017] provides a cautionary tale for those who conduct business without formal written contracts. It also provides a reminder of the law relating to contract formation, whether an intention to create legal relations has been established and the importance of certainty of key terms.