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The Commercial Litigation Journal: July/August 2014

Gregg Rowan and Daniel Woods consider a recent case on repudiatory breach

In a recent decision, the Court of Appeal held that the deliberate withholding of payments due under a contract, in circumstances where the counterparty could expect to receive payment eventually, did not amount to a repudiatory breach so as to entitle the counterparty to terminate the contract: Valilas v Januzaj [2014].

Neil Jamieson reviews the new ‘buffer rule’ and recent Court of Appeal decisions: the end of post-Mitchell ‘zero tolerance’?

In just a few months, we have come a very long way since the now infamous decision of Mitchell MP v News Group Newspapers Ltd [2013], where, as most legal practitioners will be acutely aware, Master McCloud assertively decided to limit a party’s costs recovery to court fees, as a penalty for filing its costs budget six days late. The decision was a bold one, even in the post-Jackson era, but was firmly endorsed by the Court of Appeal, whose judgment has since been pored over, applied and referred to constantly by all those involved in court proceedings. Although the decision must be lauded as a welcome development in terms of fostering a new culture of efficiency and rule compliance (previously sorely lacking), it has however had some rather unfortunate side effects.

Sascha Hindmarch outlines the pursuit of Libor-related claims

The Court of Appeal’s decision at the end of last year in Graiseley Properties Ltd v Barclays Bank plc [2013] (appeal decision) confirmed that the door is open for claimants to plead implied representations against financial institutions in relation to the manipulation of London interbank offered rates (Libor) and/or Euro interbank offered rates (Euribor). With that comes the ability to rescind contracts entered into with financial institutions, potentially recovering previous payments made if misrepresentations (implied or otherwise) can be proved. However, while the door may be ajar it certainly remains arguable as to whether the floodgates have opened.

Dechert LLP

Andrew Hearn assesses the process and pitfalls for international litigants in the Commercial Court

The international caseload of the English Commercial Court is enormous. A survey of 705 Commercial Court judgments handed down in the past five years showed that about 62% of the litigants involved were based outside England and Wales. In light of this trend – with a large proportion of the litigants emanating from Russia and the CIS – a number of questions arise. In particular:

Mary Gibbons

Mary Gibbons examines troubled times for Argentina and bond holders

The last stand at the OK Corral, which took place in 1881 in Tombstone, Arizona, is probably the most famous gunfight that occurred in the American Old West. It involved some very famous outlaws and equally famous lawmakers. It is said to have lasted only 30 seconds. The lawmakers won, albeit with a few wounds. Over the course of time the fight has come to symbolise the end of an era in the western territory of the United States, a time when obeying the law took second place to other interests.

Julia Staines reports on a significant judgment in the Court of Appeal

Hot on the heels of the milestone of 100 ‘post-Mitchell’ cases came the Court of Appeal’s judgment in three appeals, handed down by the Master of the Rolls himself in Court 71 at 2pm on 4 July 2014.