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The Commercial Litigation Journal: March/April 2017

Tom White and Claire Curtis explore how technology is revolutionising dispute resolution

Technology and the law is certainly not a new partnership, although it is fair to say that the legal sector has traditionally not embraced technology as readily as some others. Whether such reluctance is borne out of tradition, an aversion to risk, a disinclination to move with the times, or a lack of resources, the truth is that technology is here to stay and offers the legal sector an opportunity to offer a more efficient, cost-effective service.

James Popperwell and Nikolas Ireland examine a recent case looking at contract formation

The High Court’s recent decision in MacInnes v Gross [2017] provides a cautionary tale for those who conduct business without formal written contracts. It also provides a reminder of the law relating to contract formation, whether an intention to create legal relations has been established and the importance of certainty of key terms.

Kathryn Maclennan takes a view on the impact of a recent decision on trusts created by IVAs

The Court of Appeal (CoA) decision in Green (Supervisor of the Voluntary Arrangement of James Patrick Wright) v Wright [2017] was handed down on 1 March 2017 and brings some long-needed clarity to the insolvency industry regarding the position with trusts created by an individual voluntary arrangement (IVA). While that clarity is certainly welcome, the decision given has a number of implications for insolvency practitioners (IPs), debtors and lenders alike.

Paul Brehony and William Gow consider the pendulum of case law in contractual interpretation

In Investors Compensation Scheme Ltd v West Bromwich Building Society [1997], Leggatt LJ cited Alice Through the Looking Glass when rejecting the interpretation adopted by the first instance court. He said that its interpretation was ‘not an available meaning of the words’ and was ‘unimpressed by the alleged commercial nonsense of the alternative construction’. Lord Hoffman took a different view in the House of Lords. ‘I will say at once that I prefer the approach of the learned judge’, he said, in support of the first instance analysis. He asserted that ‘almost all the old intellectual baggage of “legal” interpretation has been discarded’ and set out the following five principles of contractual interpretation:

Gwendoline Davies guides the way through the obligations of data protection and disclosure

The extent of a data controller’s obligations to respond to data subject access requests (DSARs), and in particular the interaction with legal privilege and litigation, has featured in a number of recent high-profile cases. DSARs are increasingly being used as a quick and cheap alternative to formal disclosure, or for other tactical reasons in the early stages of a dispute. There are a number of potential problem areas.

Brioney Thomas and Grace Dawson Stephens weigh up a recent decision on penalties

Practitioners should take note of the recent application of the law on penalties in Vivienne Westwood Ltd v Conduit Street Development Ltd [2017]. Although a first instance decision, the case provides a welcome indication of how the courts are likely to use the restated principles set out in Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015].

Clare Arthurs and Nicole Finlayson review recent decisions

Life as a commercial litigator is (large disclosure exercises aside) usually varied and stimulating. No two cases are ever the same, and you never know what is going to cross your desk next. With that in mind, this column offers a smorgasbord of recent cases for your delectation.