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The Commercial Litigation Journal: July/August 2013
Kennedys

Judith Bloor and Christopher Malla assess the implications of Flatman v Germany; Weddall v Barchester Health Care Ltd

In Flatman v Germany; Weddall v Barchester Health Care Ltd [2013], the Court of Appeal held that the funding of disbursements did not render claimants’ solicitors liable to pay the defendants’ costs, although disclosure was ordered to allow further investigations.

CMS

Guy Pendell and David Bridge report on a recent Supreme Court judgment dealing with anti-suit injunctions

In a judgment delivered on Wednesday, the Supreme Court unanimously held that the court has jurisdiction to grant a final anti-suit injunction restraining a party from commencing or continuing foreign court proceedings in breach of an arbitration agreement, even where there is no actual, proposed or intended arbitration. The court also confirmed that the source of its power to grant such an injunction derived from its broad discretion under s37 the Senior Courts Act 1981, and not s44 of the Arbitration Act 1996.

Anna Pertoldi and Maura McIntosh look at judicial views on compliance

The changes brought in on 1 April 2013 to implement the Jackson reforms included two that received comparatively little attention before the ‘Big Bang’ date but have been quick to make their mark post-implementation.

RPC

Simon Chandler and Sally Lord examine the emerging approach to relief from sanctions taken by the courts since the 1 April reforms

One of the most important aspects of the costs reforms introduced on 1 April 2013 was the change to CPR3.9 dealing with relief from sanction. Together with a small but significant tweak to the wording of the overriding objective (CPR1.1), this means that the courts are now obliged to take a much tougher approach to non-compliance with court rules, particularly in respect of any defaults regarding the litigation timetable. This article considers the lessons arising from an early decided case (Venulum Property Investments v Space Architecture) and how the changes to CPR3.9 is likely to interact with related reforms to change the litigation landscape in practice.

Kennedys

Radd Seiger and Helen Morris discuss the lessons to be learned from Venulum Property Investments Ltd v Space Architecture Ltd

We represented the defendant in the Court of Appeal decision of Dixie v British Polythene Industries plc [2010]. We argued then that it was an abuse of process for the claimant to pursue an identical claim to that which had previously been struck out following the claimant’s failure to serve his claim form within the four-month period prescribed by CPR 7.5 due to an error on the part of his solicitors. The claimant argued that notwithstanding his solicitors’ oversight, he should be allowed a ‘second bite of the cherry’. The Court of Appeal accepted that in principle a claim could be struck out as an abuse of process but concluded on the facts that no abuse was present. The judgment made it clear that failure to serve a claim form in accordance with the CPR provisions would not in of itself amount to an abuse of process. This was a disappointing further example of the court’s failure to take a hardened stance when faced with claimants flouting procedural time limits, case management directions and court orders, which was succinctly described by Lord Jackson in Mannion v Ginty [2012] as ‘the culture of toleration of delay and non compliance with orders’.

Thomas Crockett reviews developments in the treatment of litigants in person

In recent years the courts have seen a rise in the number of people litigating without professional representation. According to the government’s own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 1 April 2013. Given that the limit for small claims track cases is to rise from £5,000 to £10,000, it is likely that in the majority of civil cases, the presence of litigants in person (LIPs) will become the rule rather than the exception. Indeed in April 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed (www.legalease.co.uk/prepare):

Alex Fox and Clare Arthurs consider the implications of the Prest decision

The Supreme Court has recently handed down its much-anticipated judgment in the case of Prest v Petrodel Resources Ltd [2013]. Both commercial and family lawyers have been looking to the Supreme Court for clarification of how, when (and indeed if) the courts will allow the corporate veil to be pierced. Prest confirms that the concept of piercing the corporate veil does in fact exist, and that the same rules apply, whether in the Family Division or any other. It also provides some guidance on those rare occasions on which the courts will look behind a company’s distinct legal personality.

David Sawtell looks ahead from the Medirest judgment

The High Court and Court of Appeal decisions in Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland (t/a Medirest) [2012]; [2013] have stirred up the previously academic debate about the concept of ‘good faith’ in English law. The original decision of Cranston J at first instance, holding that a term of ‘good faith’ could be implied into a procurement contract, was overturned on appeal. This does not mean that the litigation will have no further effect on how such contracts are drawn up or interpreted. It is now clear that, in the appropriate case, such a term will be implied. There is a broader trend towards the implication of such terms in the appropriate case, a movement that the Court of Appeal recognised.