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The Commercial Litigation Journal: January/February 2014

Victor Cardona and James Villanueva review recent US treatment of NDAs

When one company considers entering into a business relationship with another company, there is usually an exchange of ideas or information. Much of this information can be considered proprietary or confidential. If one of these companies was to publicly disclose the information provided by the other, the first company could be out of luck for any intellectual property protection for the disclosed subject matter. To protect companies from losing their rights to disclosed information, transactions between companies may involve a confidentiality agreement, otherwise known as a non-disclosure agreement (NDA). In a transaction between two or more companies, the disclosing party desires to present proprietary and/or confidential information to receiving parties in the hope that a mutually beneficial relationship may be developed. Without any agreement to confidentiality, the worst case scenario for the disclosing party is that the receiving party ‘steals’ the confidential information presented and commercialises it while excluding the disclosing party. A receiving party could also decide not to commercialise the confidential information and instead make it public for any party to commercialise. The purpose of an NDA is to protect such confidential information between parties. An NDA can potentially provide the disclosing party with the assurance that a confidential relationship has been created and that discussions with receiving parties will not be made public without the disclosing party’s permission.

RPC

Sarah Carmichael discusses limitation and adjudication

The Housing Grants, Construction and Regeneration Act 1996 (the Act) introduced adjudication as an expedient method to resolve disputes in the construction industry. It has been the source of a vast amount of case law and a plethora of unintended consequences.

CMS

Maxine Cupitt, Simon Garrett and Barney Hearnden examine the lessons to be learned from Madoff

In the recent decision of Madoff Securities International Ltd (In Liquidation) v Raven [2013], the Commercial Court dismissed multimillion pound claims brought against five former directors of Madoff Securities International Ltd for breach of directors’ duties relating to payments made to, or for the benefit of, Bernard Madoff, its major shareholder and CEO. Now known to be the most spectacular fraudster of our times, Madoff was at the time of the transactions ‘a titan of Wall Street’ in terms of wealth, reputation and respectability.

Kate Corby and Richard Molesworth assess UK compliance with the EU recommendation on collective action

In a recent recommendation, the European Commission (the Commission) has called on member states to put in place collective action mechanisms in all areas where EU law grants rights. The UK has since published its response, stating that the recommendation advocates collective redress for too broad a set of rights. The UK government instead supports an ‘opt-out’ model for collective redress in the areas of competition law, and other wise to retain the status quo. In this article we consider the detail of the Commission’s recommendation and the UK government’s response.

Peter Taylor and Anna Robinson urge a fresh look at mediation

Mediation is one of the key forums for resolution of disputes (big and small). A greater emphasis is now placed on the key aspects of mediation including its timing, the nominated mediators, preparation for the mediation, who attends, conduct of the opening sessions and of course (as if it needed to be said…) managing the client’s expectations. Whilst every lawyer now has to consider mediation – hopefully from the outset of the case – the concept of mediation for a client who rarely, if ever, finds themselves involved in court proceedings is a different prospect altogether. Even if a client comes to the process, having been involved in court proceedings, quite a few will see it as no more than an early and informal evaluation of the merits of the case by a neutral professional. Others see it as time and money spent which will be fruitless. And of course a range of, often, incomplete opinions based on the ubiquitous Google search.

Maura McIntosh highlights a recent case limiting witness evidence

In what appears to be the first High Court decision applying the court’s new express powers to limit factual witness evidence, the court has restricted the number of witnesses that may be called by a claimant in relation to particular issues in a personal injury claim: MacLennan v Morgan Sindall (Infrastructure) plc [2013].

Cynthia O’Donoghue considers recent developments in data protection

What is ‘personal data’ is a conundrum often grappled with and for which there is little guidance except in the most clear cut of cases, such as people’s names, medical files or financial records. Attempts at trying to answer the less obvious side of the question were epitomised by the High Court case of Kelway v The Upper Tribunal, Northumbria Police and the Information Commissioner [2013]. In this case HHJ Thornton controversially challenged the tests traditionally relied upon to answer this question.

Rustam Dubash and Clare Arthurs report on recent developments in relief from sanctions

Clarity in the law is always welcome. In Mitchell MP v News Group Newspapers Ltd [2013], the Court of Appeal could not have been clearer: court orders and directions exist to be complied with, and you fail to comply with them at your peril. This new, more robust approach should mean that relief from sanctions will be significantly harder to come by. However, the court stopped short of saying that relief from sanctions should never be granted. While this flexibility is undoubtedly reassuring for both parties and practitioners, the spotlight must now be trained on the circumstances under which the courts may grant relief from sanctions.