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The Commercial Litigation Journal: May/June 2016

Michelle Radom looks at security for costs and the secretive defendant

One ground for seeking a security for costs order from the courts is that the claimant is a company and ‘there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so’ (CPR r25.13(2)(c) (ground (c))).

Elaina Bailes assesses recent case law on abuse of process

It is well established that there are two categories of abuse of process under English law (as set out in the leading case of Johnson v Gore Wood & Co [2000]):

Maura McIntosh reports on a recent Court of Appeal decision on Part 36 and split costs orders

The Court of Appeal has overturned an order depriving a claimant of part of her costs where she had beaten her own Part 36 offer: Webb v Liverpool Women’s NHS Foundation Trust [2016].

In the first of two articles, Ian McDonald and Daniel Cook examine the possible expansion of malicious prosecution

On 7 March 2016, the Supreme Court heard Willers v Joyce & anor (as executors of Albert Gubay (deceased)). At time of writing, its judgment is expected in early June 2016.

David Niven and Elisabeth Mason explore a recent judgment on aggregation

The Court of Appeal has ruled on the proper construction of the aggregation clause in the Solicitors’ Regulation Authority’s (SRA’s) ‘Minimum Terms and Conditions of Professional Indemnity Insurance’ (the MTC).


Andrew Cousins highlights the practical lessons to be learned from the recent decisions in Barton v Wright Hassall LLP [2016] and OOO Abbott v Econowall UK Ltd [2016]

The courts have recently handed down two independent judgments regarding the service of proceedings and arrived at contrary decisions, coincidentally on the same day. This article examines both judgments and considers if the reasoning is inconsistent and what the decisions mean in practice.

Jack Rabinowicz, Rod Cowper and Simon Boschat consider ex parte continuing disclosure obligations

It is the standard practice in legal proceedings that both parties to a dispute should be heard before an issue is decided by a court.

Andrew Beck outlines Norwich Pharmacal and explains the two tactical options recently highlighted which can be of both assistance and concern to those within data-sensitive industries

The Civil Procedure Rules (CPR) provide a process by which a disclosure order can be sought, pre-action, against a person who is likely to be party to subsequent court proceedings. A Norwich Pharmacal disclosure order (so called following the leading case of Norwich Pharmacal Co v Customs and Excise Commissioners [1973]), however, can be granted against a person who will not be party to subsequent proceedings, so as to identify another person (for example a wrongdoer or a potential beneficiary) or so as to identify the nature of a wrongdoing, who or which will be the subject of subsequent proceedings. A Norwich Pharmacal order can also require the disclosure of information needed to seek redress, as opposed to merely the disclosure of documents as per CPR disclosure provisions.

Andrew Skelly reviews the jurisdiction to award damages in lieu of an injunction

When the court has jurisdiction to grant an injunction, it can award damages in lieu of an injunction. Guidance on the exercise of this discretion begins with the ‘good working rule’ provided by AL Smith LJ in Shelfer v City of London Electric Lighting Co [1895]; namely, damages in lieu may be awarded if