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The Commercial Litigation Journal: May/June 2014

Ian Tucker looks at the conflict between commercially sensitive documents and disclosure

Confidentiality is always an important matter for any commercial business. Understandably, businesses do not want their competitors gaining a commercial advantage from an insight into their activities. Commonly one of the first issues raised in disputes is ‘will my documents have to be shown to the other side or, worse, the public?’.


Stuart Dutson reports on a recent study on the continued popularity of judicial resolution

A new study on businesses’ attitudes to commercial disputes, ‘Companies in Conflict: How Commercial Disputes are Won’, finds that companies work hard to avoid litigation and arbitration. Despite this, the study from Eversheds and academics at King’s College London and the University of Surrey says that general counsel are most likely to see cases go all the way to court rather than being resolved by alternative dispute resolution (ADR). This article examines the findings of that study and the lessons to be learned.

Carlo Piatti and Julian Berger examine a landmark ruling by the Italian Supreme Court

The Italian Supreme Court (Court of Cassation) has recently dismissed a case brought by an Italian company against a Russian bank, on the grounds of lack of jurisdiction under the Brussels Convention 1968 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The relevant sections of the Convention are exactly the same as EC Regulation 44/2001. Accordingly, the principles of the case will apply in all situations, irrespective of the respondent’s jurisdiction (whether an EU member state or a non-member state).

Mark Lewis assesses a decision addressing net contribution clauses and limitation of liability

A net contribution clause, or ‘NCC’, limits a contractor’s liability to losses for which it is responsible. Its aim is to avoid one contractor being jointly and severally liable for the whole of the claimant’s losses.

Jeremy Glover reviews a recent decision of the TCC

Wain v Gloucestershire County Council [2014] arose out of the first Case Management Conference (CMC) and costs management hearing. The fourth defendant was one day late in filing her costs budget, so that instead of having been served seven clear days before the hearing, it was in fact served six clear days before the hearing. The claimant took the point that the fourth defendant was late in serving her costs budget. If that was right then the potential consequence as set out in CPR rule 3.14 was that the fourth defendant would be treated as having filed a budget comprising only the applicable court fees.

Ron Cheriyan

Ron Cheriyan considers a sensitive area of enforcement

Schools within the independent sector have witnessed a surge in the number of claims issued for unpaid school fees. While this is largely due to the recent recession, it is also perhaps indicative of an increasingly litigious culture that has infected educational institutions. Schools need to decide early on whether or not to bring a claim and full consideration should be given to the chances of success at trial, the prospect of successful recovery and any impact upon the reputation of the school.

In the second of two articles, Davinia Brennan explores a recent decision from the Irish High Court on litigation privilege

Part 1: 'Fight the good fight' (CLJ54)

The Irish High Court has held that the concept of ‘once privileged, always privileged’ only applies to claims to privilege based on legal advice privilege, and not to litigation privilege.

Maura McIntosh outlines a recent decision of Lord Justice Jackson on extensions of time

In a judgment handed down on 20 May 2014, Lord Justice Jackson has taken the opportunity to clarify the effect of his reforms on extensions of time: Hallam Estates Ltd v Baker [2014]. Jackson LJ referred to his recommendation that the court should be ‘less tolerant than hitherto of unjustified delays and breaches of orders’ and that this change should be signalled by amendment of CPR 3.9 which governs applications for relief from sanctions. That, he said, remains his firm view. He welcomed the fact that the recommendation has been implemented, leading to a new and more disciplined approach to the conduct of civil litigation. He added, however:

Verity Altaras discusses the court’s approach to amending particulars of claim in light of the Jackson reforms

Litigants may wonder to what extent the Jackson reforms have impacted on applications to amend particulars of claim. In a recent decision, the High Court in Hague Plant Ltd v Hague [2014] found that proportionality of cost and reasonable allocation of court resources tipped the scale against the grant of permission. What lessons can be learned from the case?