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The Commercial Litigation Journal: May/June 2012

Martin Meredith assesses the impact of Amp v Persons Unknown

The case of AMP v Persons Unknown [2011], heard before the Hon Mr Justice Ramsay, may have interesting consequences for the use of social networking sites particularly by anonymous users.

Andrew Emery

Andrew Emery considers the vexed question of service outside the UK

Given the UK’s rich history in international trade and commerce it is highly likely that at some stage most commercial practitioners will have cause to issue proceedings in England against foreign defendants. In order to do so the claimant in such a case will have to obtain permission from the court to serve out of the jurisdiction. The Civil Procedure Rules (CPR) set out the process that must be followed in such cases. This article will explain that procedure and what pitfalls are to be avoided.

Phil Sherrell, Luke Arbuthnot and Astrid O’Reilly review the Supreme Court decision in Flood v Times Newspapers

The Times has won an important libel appeal in the Supreme Court in a decision that should reassure reporters across England and Wales and ensure responsible investigative journalism can continue.


Anthony Greenwood and Leanna Mailer report on the recent decision in Kingspan v Borealis

The recent judgment in Kingspan Environmental Ltd v Borealis A/S [2012], handed down on 1 May in the Commercial Court, provides a graphic reminder of the balance between risk and the legal and practical dynamics that exist between raw materials suppliers and product manufacturers.

Gowling WLG

Greg Standing and Ian Weatherall argue that civil restraint orders are a valuable weapon in the litigators armoury

According to a recent Law Society press release (19 April 2012: ‘Litigants in Person’), litigants in person (LIPs) will be seen more frequently in family and civil cases due to the decline in public funding and the general state of the economy. The Law Society has issued a practice note on the potential issues of dealing with LIPs, including that practitioners (para 5 ‘Litigants in Person’):

Nick Rowles-Davies examines the views of the Institute for Legal Reform’s views on the English and Welsh third-party funding market

Now that the Liberal Democrat peer Lord Thomas has withdrawn his amendment for statutory regulation of litigation funding, the third-party funders’ voluntary Code of Conduct is set to become embraced by litigation funders in the UK.

Alexander Fox and Clare Arthurs look at the implications of GHLM Trading v Maroo

Corporate governance and directors’ duties are hot topics at the moment. As the recession bites and creditors desperately seek to recover losses, this is the first time that the codification of directors’ duties in the Companies Act 2006 (CA) and the Corporate Governance Code 2010 has been properly tested. The recent case of GHLM Trading Ltd v Maroo [2012] serves as a reminder to directors that the courts wish to have a substantial role in policing, upholding and, potentially, extending those duties where it is fair to do so.

Nicola Bridge, Joel Seager and Guy Francis discuss the pitfalls and solutions surrounding document retention

Creating an effective document retention policy can be an expensive and time-consuming exercise for firms, especially now when the sheer volume of documents created in business has exploded and communication media continue to proliferate. It is often only when litigation is contemplated, or a regulator comes knocking, that the scramble ensues to identify what measures have been taken to preserve documents and to consider retention going forward. This, however, may be too late as the unjustified destruction of documents can have serious reputational and financial consequences for companies. This article considers the reasons why functional document retention policies are so vital and how a failure to properly manage document retention issues can result in sanctions.