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The Commercial Litigation Journal: January/February 2015

Mark Lewis provides a timely reminder to make sure your audit clause is fit for purpose

Audit clauses are an important tool in IP agreements, intended to allow a licensor to check that the licensee is complying with the terms of the licence agreement and, in particular, paying the correct royalties. The case of 118 Data Resource Ltd v IDS Data Services Ltd [2014] involved an audit clause in a database licence agreement. The judgment reinforces the message that parties should be clear about the specific rights being granted, as the court will not go further than necessary to imply terms which are not set out expressly in the agreement. Similar considerations will apply to the audit clause in any IP licence agreement.

Olswang

Ryan Dolby-Stevens discusses the impact of Abdulaziz v Apex [2014]

On 26 November 2014, the Supreme Court handed down a decision (Prince Abdulaziz v Apex Global Management Ltd [2014]) in which it stressed that the strength of a party’s case should be ‘generally irrelevant’ when it comes to the exercise of the courts’ case management powers, with the exception being where the merits of a party’s case were so strong that they would be entitled to summary judgment. The court also stated that the senior courts would generally be ‘very diffident’ about interfering with case management decisions made by the lower courts.

Julianne Hughes-Jennett and Sarah Baddeley analyse Advocate General Wathelet’s opinion in Gazprom

The relationship between arbitration and litigation has, for a number of years, caused both the courts and commentators considerable difficulty, most notably in the case of Allianz SpA v West Tankers Inc [2009] where the European Court of Justice (ECJ) held that an anti-suit injunction issued by a national court, in support of arbitration proceedings, is incompatible with Reg 44/2001 (the Brussels I Regulation). This relationship has recently been addressed once again by Advocate General Wathelet in his opinion in Gazprom OAO v Republic of Lithuania [2014]. In this case the advocate general considers whether a national court may refuse to recognise and enforce an arbitral award on the basis that it would restrict that court’s right to determine its own jurisdiction under the Brussels I Regulation.

Jonathan Pratt and Doug Wass provide a warning on unintended settlements

In the recent case of Bieber v Teathers Ltd (in liquidation) [2014], Judge Pelling QC (sitting as a judge of the High Court) held that the parties had concluded a settlement agreement in an exchange of emails, notwithstanding the fact that the parties subsequently failed to agree the terms of a formal written settlement agreement.

Nabarro LLP

James Henson reports on the first conviction under the Bribery Act

While much of the country was embarking on preparations for the festive season, in December 2014 three company directors were found guilty and sentenced to a combined 28 years in prison for their part in a £23m biofuel fraud. They were also disqualified from acting as directors for a combined total of 40 years and will become the subject of confiscation proceedings and compensation orders.

Claire Kennedy and Emily Carter look behind the government proposals for reform of judicial review

Judicial review is the essential safety valve within our constitutional system which enables individuals or organisations to challenge the lawfulness of decisions made by public authorities. The decisions challenged are as varied as the claimants; from individuals challenging housing decisions made by their local authority to multinational corporations seeking review of decisions made by industry regulators. However, what underpins all judicial review proceedings is the opportunity available to seek judicial oversight of the exercise of state power. In the words of Lord Dyson (R (Cart) v Upper Tribunal [2011]):

Clare Toomer considers the decision in Avonwick v Webinvest [2014]

It is often thought that heading a letter ‘without prejudice’ will protect it from being disclosed later in proceedings, but, as a recent case reminds us, that will not always be correct.

Nigel Brook and Michelle Radom examine the impact of the new Reg 1215/2012

In a recent case, Toyota Tsusho Sugar Trading Ltd v Prolat SRL [2014], the claimant commenced an arbitration in England and applied, pursuant to s32 of the Arbitration Act 1996, to the English High Court seeking a declaration that the contract contained a valid and effective arbitration clause. The defendant alleged that it was not a party to any arbitration agreement and refused to participate in the arbitration. The defendant had also already commenced its own proceedings in the Italian courts, seeking an order that there was no valid and effective arbitration clause.

Davina Bentley and Helen Mulcahy investigate a recent Supreme Court ruling on unfairness under the Consumer Credit Act

The Supreme Court recently provided welcome clarification as to whether non-disclosure of the amount of commission received for arranging payment protection insurance (PPI) can amount to unfairness, pursuant to s140A Consumer Credit Act 1974 (the Act). The consequence for an unfair relationship between the creditor and debtor is that the transaction can be reopened.