Sun11192017

Last updateTue, 24 Feb 2015 5pm

The Commercial Litigation Journal: May/June 2017

Clare Arthurs and Nicole Finlayson present a few recent legal highlights

Whisper it, but – for the first time ever – we have sympathy with our politicians. How to choose which issues to highlight? What some of you find central to your practice, others may dismiss as a sideshow. Focusing on the bigger (often already much discussed) issues may lead to eye-rolling or disengagement… and there are so many issues to cover! Here are our (s)elected few for this edition.

Andrew Beck, Andrew Bennett and Gwendoline Davies assess the AIG Europe case and its implications for all those bringing, facing or insuring multiple claims against solicitors

AIG Europe Ltd v Woodman [2017] arose following the bringing of multiple solicitors’ negligence actions against AIG’s insured, a now-defunct law firm. The claims were issued by investors who had lost money under trusts covering two property schemes in Morocco and Turkey which had been developed by one of the firm’s clients. AIG argued that all of the claims were founded on the fact that the solicitors released monies too early or at all in respect of the two developments and therefore that they met the aggregation test, set out in clause 2.5 of the Law Society’s minimum terms and conditions for solicitors’ professional indemnity insurance (MTC), for claims arising from ‘similar acts or omissions in a series of related matters or transactions’. This was relevant because the insurer wished to rely on the aggregation clause to limit its liability.

David Schmitz considers how to approach nuisance cases where the character of an area has changed

In Coventry v Lawrence [2014], the Supreme Court addressed a number of fundamental questions relating to the law of nuisance. One of these questions was the following:

Michael Davar analyses the recent case of Astor and the principle of futility in contractual construction

In his judgment in Astor Management AG v Atalaya Mining plc [2017], Leggatt J stated that:

Andrew Hutcheon and Sam Prentki investigate the impact of Brexit and recent case law on the ‘Italian Torpedo’

Prior to the recasting of the Brussels I Regulation (Council Regulation (EC) 44/2001), readers will be familiar with the litigation tactic known as the ‘Italian Torpedo’. The phrase aptly describes the strategy by which a recalcitrant defendant, who had agreed (via an exclusive jurisdiction clause) to determine disputes in the courts of a particular member state, would subvert the agreed choice of jurisdiction clause by commencing proceedings in a court of a different EU member state. This was possible because of the lis pendens rules (from ‘lis alibi pendens’ – suit pending elsewhere) that concern cases in more than one EU member state involving the same cause of action. The EU’s lis pendens rules were found in Art 27 of the Brussels I Regulation and are now contained in Art 29 of the Brussels I Regulation (Recast): Council Regulation (EU) 1215/2012, which came into force in January 2015 (the Recast Regulation). Where the courts of a member state were first seised, any other member state would have to stay subsequent proceedings before them pending resolution in the first-seised courts. This was so under the Brussels I Regulation even if the governing agreement between the parties contained an exclusive jurisdiction clause in favour of the second-seised state (the ‘first-in-time’ rule).

Serle Court

Richard Walford looks at the future of notification orders

The dealings between Mr Mark Holyoake and the Candy brothers have caused a welter of accusation and counter-accusation: as might be expected in hard-fought and high-value litigation, there have been numerous interlocutory applications, one of which spawned an apparently new form of injunction, the notification order. So what is a notification order, and does it have utility in other commercial cases?

In the first of a two-part article, Faranak Ghajavand provides a litigator’s guide to the benefits of subject access requests

Section 7 of the Data Protection Act 1998 (DPA) establishes the right of individuals to make a subject access request (SAR). Individuals can seek access to personal information processed by or on behalf of data controllers and have that – and certain other information relating to the personal data – communicated to them, subject to specific exemptions set out in the DPA.