Tue12122017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal: January/February 2017

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.

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.

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?

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.

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.