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The Commercial Litigation Journal: March/April 2013

David Sawtell looks at the calculation of Wrotham Park damages

How do you compensate a claimant for breach of contract when they have not suffered a loss? When a claimant proves that a defendant has breached a term of a contract they are usually entitled to claim by way of damages the loss that the breach has caused. If the wrong cannot be compensated by damages, the claimant can, in appropriate cases, ask the court to grant an injunction.

Martin Meredith reviews the implications of recent case law on in-house lawyers

The Court of Appeal’s decision in Generics (UK) Ltd v Yeda Research & Development Co Ltd [2012] serves as another reminder of the potential difficulties faced by in-house lawyers. In particular, this decision teases out the principles that apply to in-house lawyers when they litigate against a former employer. While all three judges (Lord Justices Ward and Etherton together with Sir Robin Jacob) arrived at the same conclusion when allowing the appeal, the divergent reasoning leaves unresolved questions.

Joanna Ludlam and Fiona Lockhart examine the likely impact of the Prudential judgment

In a much anticipated judgment, the Supreme Court has confirmed that legal advice privilege (LAP) will not extend to legal advice given by non-lawyers. It has long been the case that a client is not obliged to produce, either to the courts or third parties, any confidential communications between them and their lawyer that have come into existence for the purpose of giving or receiving legal advice. Although Prudential plc v Special Commissioner of Income Tax [2013] confirms that LAP will only apply as between client and lawyer, the judgment leaves the door open for Parliament to consider whether to extend LAP to circumstances where legal advice is sought from a non-legal professional. This article considers whether the time is ripe for such legislative input or whether the historic common law principles preserved by the judgment remain fit for purpose.


David Robinson discusses a recent case on the ambit of a solicitor’s duties

In Newcastle International Airport Ltd v Eversheds LLP [2012], Newcastle International Airport Ltd (NIAL) unsuccessfully sued Eversheds for alleged negligence concerning the drafting of new service contracts for two executive directors of NIAL, from whom Eversheds were taking instructions.

Garry Bernstein assesses the consequences of the Jackson reforms on eDisclosure

The eDisclosure process is set for a radical shake-up this spring, when Lord Justice Jackson’s case management and litigation cost reforms are introduced. In particular, a new Civil Procedure Rule will be added to the existing Practice Direction governing the management of eDisclosure in most types of multi-track disputes. From April, Civil Procedure Rule CPR 31.5A will augment CPR 31B (Disclosure of Electronic Documents), the most significant effect of which will be to require the parties to litigation to agree a budget for the eDisclosure exercise at the first Case Management Conference (CMC). This will require the parties to submit a report to the judge outlining proposals for their respective standard eDisclosure exercises together with details of the relevant documents they have identified and where these documents are to be found.

Jeremy Glover reports on Henry v Mirror Group Newspapers

With the reforms to the way costs in civil litigation are managed being introduced on 1 April 2013, everyone is looking for pointers as to how the courts will interpret the new rules.

Clare Arthurs and Alex Fox reflect on the Supreme Court judgment in Nutritek

The corporate veil has been in the limelight of late. The Court of Appeal in VTB Capital v Nutritek International Corp [2012] kept it drawn in a commercial context; the Court of Appeal in Petrodel Resources Ltd v Prest [2012] refused to pierce it in the context of divorce proceedings, and the Supreme Court has recently handed down its judgment in VTB Capital v Nutritek International Corp [2013]. This article examines where the line protecting the corporate veil is drawn.