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The Commercial Litigation Journal: July/August 2016

Omar Qureshi and Kushal Gandhi consider the use of covert recordings

In the recent case of Singh v Singh [2016] the High Court decided that covert recordings of conversations between business partners were admissible as evidence at trial but should be treated with caution. The claimant relied on recordings of meetings he had with the first defendant in private to prove that he was a co-owner of two businesses which he and the first defendant had set up together. No one else had been party to their discussions about ownership of those businesses and the evidence of the witnesses was contradictory.

Andrew Beck and Gwendoline Davies provide an update on pre-action costs

A recent High Court finding that a defendant was entitled to recover its pre-action costs from a claimant who issued but did not serve court proceedings has highlighted that claimants must consider carefully the recoverability of pre-action costs when deciding whether to commence proceedings.

Tom Henderson reports on a recent Supreme Court decision reformulating the test for when a claim will fail due to illegality

The Supreme Court has established a new approach to the question of whether a defendant will be able to rely on the defence of illegality: Patel v Mirza [2016].

William Long assesses the impact of Brexit on data protection legislation in the UK

On 23 June 2016, UK voters passed a referendum to leave the European Union (EU) after a membership of nearly 40 years. This historic decision is likely to have a profound impact on political, economic and regulatory decisions in the coming months and years, while politicians negotiate the terms of the UK’s exit from the EU. The impact of this decision on many different areas of law and regulation will need to be carefully examined and monitored over the coming months, including in relation to data protection.

Hamlins LLP

Andrew Stephenson analyses the prospects of legislation to protect the right of privacy

Article 8 of the European Convention on Human Rights provides that ‘everyone has the right to respect for his private and family life’. Article 10 provides that ‘everyone has the right to freedom of expression’. Article 13 requires that ‘everyone whose rights are violated shall have an effective remedy before a national authority’.

Judith Hopper highlights recent case law on contractual variation

It is generally considered good practice to include in a contract a clause which states the following, or words to that effect:

David Sawtell reviews the potential pitfalls and benefits of settlement agreements

Entering a settlement agreement does not always end litigation. Some parties will begin to litigate the same, or similar, issues, arguing that the claim was not contemplated at the time of the settlement agreement. Other litigants will attempt to vitiate the agreement on the grounds of duress or fraud. On occasion, some parties will attempt to re-litigate the issues in a different legal capacity. Generally, the courts have leaned against these attempts unless the claimant can show that the agreement should be rescinded or avoided.

Alex Fox and James Harrison ponder the practicalities of privilege post Panama Papers

We are all familiar with the concept of privilege, but the Mossack Fonseca leak has put privilege and confidentiality firmly in the spotlight, for all the wrong reasons. Can privilege withstand the modern threats of computer hacking and widespread, near instantaneous leaking of confidential information? Recent case law suggests that judges worldwide are re-examining the principles of confidentiality and privilege and exercising their discretion to ensure that justice is done.

Rory Brown examines the principles governing freezing injunctions

There are seven principles that govern, or should govern, the jurisdiction of the court to grant a freezing injunction (FI) rather than the three as suggested by Beatson LJ in JSC BTA Bank v Ablyazov [2013] at para 34.