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The Commercial Litigation Journal: March/April 2014

Maura McIntosh reports on a recent decision in the Commercial Court

In what may be seen as a surprising decision, the Commercial Court has treated service of particulars of claim on the defendant’s lawyer by e-mail as valid service, despite the fact that the lawyer had not agreed to accept service by e-mail and in any event the purported service was five days late. The court held that the case fell within CPR 3.10, which provides that an error of procedure does not invalidate any step in the proceedings unless the court so orders: Integral Petroleum SA v SCU-Finanz AG [2014].

Davinia Brennan examines recent case law on litigation privilege

A recent UK High Court case serves as a reminder of the risks of instructing non-legal advisers in matters that subsequently turn contentious. The court held that a company’s claim for litigation privilege in respect of certain documents produced by a bank and by accountants had not been made out, and the documents therefore had to be disclosed.

Jeremy Glover reviews recent case law on interim injunctions

In the case of AB v CD [2014], the Court of Appeal had to consider a point of principle about the proper approach to the granting of interim injunctions. More specifically, the courts had to consider the impact of limitation of liability clauses when a party seeks an interim injunction. When deciding on whether to grant an injunction, the well-known principles set out by Lord Diplock in the case of American Cyanamid Co (No 1) v Ethicon Ltd [1975] will be applied. These include whether there is a serious question to be tried and whether damages would be an adequate remedy.

Helen Mulcahy and Davina Bentley consider a recent ruling in relation to claims made to the Financial Ombudsman

The Court of Appeal recently considered whether the common law doctrine of res judicata applied in circumstances where the Financial Ombudsman makes an award, which is accepted by an aggrieved consumer, who then goes on to issue court proceedings to recover compensation beyond the compensation cap operated by the Financial Ombudsman scheme. The decision is a welcome clarification of previously conflicting authorities in the High Court.

Alex Fox and Sarah Mant discuss the chilling effect of the Lobbying Act 2014

On 30 January, the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (the Act) received royal assent following a controversial passage through Parliament.

Owain Rhys James brings a view from the Bar on the ‘Mitchell principles’

The Jackson reforms brought about a sweeping reform of civil litigation generally. However, it seems that the area which has had (and no doubt will continue to have) the greatest impact on day-to-day litigation is that of sanctions and relief. This article outlines the new approach and highlights key areas which are likely to be the topic of debate and argument over the coming months.


Geraldine Elliott and Nigel Brook guide claimants through the tortious jungle

In Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] the claimant had entered into a settlement agreement with one of several joint tortfeasors. The claimant then sought to bring a second claim against the other joint tortfeasors, who were not defendants to the original claim. The Court of Appeal upheld the decision of the High Court to strike out the second claim, on the basis that the other joint tortfeasors had been released from liability as a result of the settlement agreement.

Richard Marshall and Clare Arthurs look at developments in non-party costs orders and parties to proceedings

The turbulent economic climate of recent years has heightened the importance to litigants (and their advisers) of establishing the solvency of all parties to proceedings. Where a party looks to be in financial difficulty, the wise litigator will question how and by whom the litigation is being funded. If there is a (solvent) third party involved, parties should consider applying for a non-party costs order (NPCO) under s51 Senior Courts Act 1981 (SCA) and Civil Procedure Rules r46.2 (CPR).