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The Commercial Litigation Journal: March/April 2012

Julian Copeman and Heather Gething look ahead to the Prudential appeal

On 13 October 2010 the Court of Appeal handed down judgment in R v Special Commissioner of Income Tax [2010] dismissing Prudential’s appeal against the High Court’s refusal to extend legal professional privilege (LPP) to tax law advice given by accountants. The ruling confirmed that LPP does not apply, at common law, to any professional other than a qualified lawyer, ie a solicitor or barrister or an appropriately qualified foreign lawyer.

Professor Dame Hazel Genn reports on the Manchester Concurrent Evidence Pilot

The Jackson Report on costs in civil litigation raised concerns about the length and cost of experts’ reports. The Woolf Report back in 1996 also raised concerns about the objectivity of experts’ reports. In thinking about whether there were other ways to deal with expert evidence, Sir Rupert Jackson’s final report referred to the apparent success achieved in Australian courts using the technique of concurrent evidence (colloquially referred to as ‘hot-tubbing’). In the hope that something similar could be done in English courts, Sir Rupert recommended that a pilot scheme should be set up to assess the technique.

Austin Flynn and Paul Flynn discuss the recent and scathing judgment in the Reggae Reggae Sauce case

In a case that may unfortunately be better remembered for the comments made by Judge Pelling QC, sitting as a judge of the High Court, as to the utter lack of credibility of both the claimants and the defendants, than for the legal points it elucidates, ‘Levi Roots’ (also known as Keith Graham) has succeeded in fighting off claims of breach of contract and breach of confidence in relation to his Levi Roots’ Reggae Reggae Sauce.

Kerman & Co

Louise Millington-Roberts writes on a landmark ruling for rights holders in the events industry

The emergence of online platforms has provided a means by which the resale of a ticket can be carried out anonymously. This has made it increasingly difficult to enforce a rights holders ticketing policy. Since acting for rights holders who are responsible for the distribution of event tickets, action has been successfully pursued against online ticket resellers whose details are freely available, street touts who sell outside grounds and pirate hospitality companies who strip tickets from official packages or source non-transferable tickets and re-sell or re-package with their unofficial packages. There has been little that could be done against those ticket re-sellers who were able to re-sell anonymously online, until now.

Challinors

Peter McHugh takes a view on hot-tubbing

The practice of putting experts into the hot tub originated in and has been developed in Australia. It is currently being piloted in the Manchester Technology and Construction Court.

Luke Pearce examines the impact of a recent judgment on anti-suit injunctions and vexatious conduct

In what circumstances will an English court grant an anti-suit injunction to prevent a defendant to its proceedings from prosecuting parallel litigation abroad? Where the foreign proceedings are brought in breach of an exclusive jurisdiction clause or an arbitration agreement, the position is generally straightforward: the court will grant an anti-suit injunction unless there is a strong reason not to do so. However, what if the foreign proceedings do not constitute a breach of contract on the part of the defendant? This question arose in the recent case of Star Reefers Pool Inc v JFC Group Co Ltd [2012], where the Court of Appeal gave guidance as to the law in this area.

Eversheds

Mark Surguy assesses the impact of Germany v Flatman

The scope of the jurisdiction to make a non-party costs order under s51 Senior Courts Act 1981 has been developing over the last few years. A distinction has been drawn between so-called ‘pure funders’ who have no interest in the litigation and those who seek to control the course of litigation or fund it as a business activity. The competing public interest in funding being available to give access to justice and the public interest in a successful party being able to recover his costs may sometimes appear irreconcilable. Solicitors have always been exposed to the jurisdiction (for example wasted costs orders), but this case may be taking the jurisdiction a little too close for comfort.

Michael Morton outlines recent case law considering the use and practice of CPR Part 36

An assessment of recent case law from a small road traffic accident claim to a substantial multi-party building project contract dispute confirms the pivotal importance of CPR Part 36 in the armoury of the litigator and depending on how it is used can be decisive.

Pannone LLP

Claire Stewart contemplates recent case law on disputed ownership in the light of Jones v Kernott

This article will consider the recent judgment of the Court of Appeal in Crossco No 4 UnLtd v Jolan Ltd [2011] and its potential ramifications in the commercial litigation arena. It is not uncommon for problems to arise in relation to the ownership of property that has been the subject of prior negotiation between parties but where a written agreement has not been put into effect. This might happen where there is a dispute as to the substance of what was or was not agreed orally between the parties or where there has been an agreement that it is more beneficial for one party to become the legal owner of a property but the nature of that ownership is later in dispute. In addition to contractual issues, the parties can invoke trusts law to support a claim to ownership rights.