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The Commercial Litigation Journal: May/June 2015

David Sawtell analyses recent caselaw on Part 36

Practitioners frequently debate tactics and strategy when negotiating the litigation and settlement of claims. One of the most important weapons in the negotiator’s armoury is the offer to settle. The last few months have seen important developments in the costs ramifications of offers to settle, not only in respect of offers made under Part 36 but also where parties make admissible offers outside the straightjacket of that part of the CPR.

Paul Chaplin examines an unintended agreement

In the recent case of Bieber v Teathers Ltd (in liquidation) [2014], the court considered whether an exchange of emails by parties’ solicitors constituted a binding settlement agreement. In coming to its conclusion the court carried out an objective appraisal of the parties’ words and conduct during their negotiations to determine whether they had intended to conclude a legally binding agreement.

Harriet Campbell and Aisling Duffy report on a key judgment under the Data Protection Act

The Court of Appeal recently upheld the decision of the High Court in Google Inc v Vidal-Hall [2015] that three claimants resident in England could bring claims in England against US-based Google Inc for misuse of private information and breach of the Data Protection Act 1998 (DPA).

Rebecca Andrews-Walker and Alex Fox investigate the strained relationship between insolvency and pension assets

In a challenging economy, bankruptcy increasingly stands accused of constituting a mechanism for debtors to escape their responsibilities at their creditors’ expense. It understandably remains a live debate as to whether a bankrupt should be afforded the means of a protected pot of money for their future use while their creditors are left unrecompensed for their loss. The debate is not new, but the balance has perhaps shifted in a climate where creditor losses are felt particularly keenly. Should a bankrupt be permitted to retain their pension pot for whatever use they see fit, or should it be utilised to soften the blow within the bankruptcy estate?


David Capps outlines an ECJ decision looking at the priority of jurisdictional grounds as between contract and tort under the Brussels Regulation

In the case of Marc Brogsitter v Fabrication de Montres Normandes EURL [2014], the European Court of Justice (ECJ) considered how to reconcile the two potentially competing alternative bases for establishing jurisdiction under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation). Namely:

Georgina Squire looks at recent cases on settlement

It is widely recognised that the vast majority of cases are resolved before they reach the court doors. In a post-Jackson world, with a greater push towards alternative dispute resolution and tighter controls on costs, parties are incentivised to explore settlement options at an earlier stage in litigation.

Andrew Kelmanson provides a timely reminder of the law behind co-defendant costs orders

Alongside determining the liability of the parties to proceedings, courts are also tasked with apportioning the costs of litigating between them. Under CPR r44.2(a), the ‘general rule’ is that successful litigants are to recover their costs from unsuccessful litigants (court orders often refer to costs being ‘in the case’). This position is far less straightforward when dealing with multi-party litigation involving a number of defendants who may be facing multiple claims.

In the first of a regular comment column, Clare Arthurs and Richard Marshall consider recent developments

We have a new pre-action practice direction! The catchily titled ‘Practice Direction Pre-Action Conduct and Protocols’ (the PD) came into force on 6 April 2015. It replaces the ‘Practice Direction – Pre-Action Conduct’ (the PDPAC), although it currently goes by the old name on the Ministry of Justice website. The question is – what, if anything, has changed?

Simon Nurney and Gavin Gray explore a recent decision on the question of jurisdiction

In the recent case of Erste Group Bank AG London Branch v JSC ‘VMZ Red October’ [2015], the Court of Appeal held that England was not the appropriate forum to determine what ‘was overwhelmingly a Russian case’. This article considers the main points of general interest arising from that judgment.