Wed11222017

Last updateTue, 24 Feb 2015 5pm

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.

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.

Michael Ward reflects on recovery under cross-undertakings in freezing injunction cases

Cross-undertakings in damages (CUDs) are given by an applicant for a freezing injunction, and are designed to protect the respondent from loss arising from the injunction. Inquiries into calculating such loss are typically complex and expensive pieces of litigation. Further, they can result in significant awards; in the recent case of Fiona Trust and Holding Corporation v Privalov [2016] Males J awarded approximately $60m for lost profits.

Tom White and Claire Curtis report on the effect of currency fluctuations on Part 36 offers

Part 36 is intended to provide a predictable and self-contained code as to the consequences of compliant offers to settle litigation. However, not all commercial litigation is concerned with pounds sterling, which can lead to complications if there are currency fluctuations between the time of a Part 36 offer and the date of judgment. In Novus Aviation Ltd v Alubaf Arab International Bank BSC(c) [2016], Leggatt J had to consider whether it was just to apply the cost consequences set out in CPR 36.14(3) of the then Civil Procedure Rules (now CPR 36.17(4)) in circumstances where Novus had beaten its Part 36 offer (made in sterling), but there had been a considerable drop in the value of sterling to US dollars (dollars being what really mattered to Novus) between the offer being made and the date of judgment. On the facts, he held that it would be unjust to award Novus what would otherwise be a windfall as a result of the currency fluctuation, and refused to allow Novus the cost benefits of beating a Part 36 offer and ordered costs to be assessed on the standard basis.

Clare Arthurs and Phillip D’Costa highlight recent case law on frustration

Frustration: the feeling of being upset or annoyed as a result of being unable to change or achieve something. An apposite word for many in this most capricious of years. Legally speaking, a contract is frustrated when something happens which makes it impossible or illegal to perform the contract, or which changes the parties’ contractual rights and obligations so fundamentally that it would be unjust to make the parties perform them.

Maura McIntosh reports on a recent application of the Mitchell sanction

In the recently reported case of Jamadar v Bradford Teaching Hospitals NHS Foundation Trust [2016], Jackson LJ delivered the leading judgment dismissing an appeal against the imposition of the so-called Mitchell sanction where a party failed to file a costs budget when required to do so, so that he was treated as having filed a budget limited to court fees.

James Driver provides a reminder of the court’s powers over expert evidence

The recent decision in Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] serves as an important reminder that the courts have a wide discretion to order the disclosure of any expert evidence, including communications with experts and documents produced by experts. Parties need to be mindful that any communications with experts and any documents produced by experts must be treated as potentially disclosable.

Ieuan Jones explores a controversial decision implementing the proportionality test

Following the controversial costs decision in BNM v MGN Ltd [2016], the Court of Appeal will now hear a fast-tracked claim, possibly by Christmas.