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The Commercial Litigation Journal: May/June 2011

Alan Watts and Anna Bateman conclude their review of recent cases on the law of confidence and privacy

Following our previous article on confidence and privacy in the last issue of CLJ, this article examines recent cases on those orders beloved by footballers and celebrities: super-injunctions (and anonymity orders) or, in more popular parlance, ‘gagging orders’.

Mathew Leverton reviews recent guidelines, bad faith and the Bribery Act

If it is possible to generalise at all, one might observe that the law dealing with dishonest or fraudulent behaviour is concerned with conduct that has a quality of bad faith, untruth or perhaps unlawful ‘sharp practice’ about it. Logically, bribery falls within this definition in that it is an inherently dishonest activity by which defendants aim to make gains for themselves, usually at the expense of others.

Class Legal

Dick Warner looks at recent case law on awards of costs following discontinuance of proceedings

It is a general rule, well established in the hearts and minds of every practitioner, that the discontinuing claimant must pay the costs of the defendant. The rule is set out in r38.6(1) CPR:

Kennedys

Johnathan Payne and Richard McKeown assess the impact of Edwards-Tubb v Wetherspoon

Litigators should be aware of the Court of Appeal’s recent judgment in the case of Edwards-Tubb v JD Wetherspoon Plc [2011], which deals with the jurisdiction of the court to make a conditional order in relation to permission to rely upon expert reports.

Gary Lawrenson considers the impact of Jones v Kaney

In Jones v Kaney [2011] the Supreme Court ruled on expert immunity in civil litigation. Until this decision, experts were given immunity from suit to encourage them to give full and truthful evidence without fear of retribution.

Kai Struckmann and Genevra Forwood map out the options available to companies unable to pay fines imposed by the European Commission

European Commission fines for infringements of competition law are high. It is no longer uncommon for fines to reach the legal maximum of 10% of the company’s worldwide turnover. It is therefore unsurprising, especially in times of financial crisis, that many companies find themselves unable to pay the fine. This poses a dilemma for the enforcement of competition rules: to allow companies to avoid paying the consequences of breaking the rules would undermine the whole competition regime. At the same time, it is undesirable from a social and economic point of view (and may indeed be counterproductive in terms of competition) for companies to be fined into bankruptcy.

Richard Power and Louise Trotter examine the response of the European Commission and the English Courts to West Tankers

The European Commission (the Commission) has published a proposal to amend the Brussels Regulation on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (EC 44/2001) (the Regulation), to deal with the issues raised by the ECJ’s decision in Allianz & anor v West Tankers Inc [2009]. The Proposal aims to reduce the potential for a party to delay or avoid arbitration by bringing proceedings in another member state, in breach of a valid arbitration agreement.