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The Commercial Litigation Journal: November/December 2011

Clare Arthurs discusses the implications of the Keydata case

Drawing the line between the interests of a company and those of its human agents can be difficult. In many cases the interests of the company and its directors may be identical or least overlapping. In others, particularly in the context of regulatory proceedings, a conflict of interest may arise. The recent case of Ford, R (on the application of) v The Financial Services Authority [2011] (Keydata) provides useful guidance on when a company’s directors and employees can share privilege in the legal advice obtained by a company.

Peter Brewer looks at the liability of association members

You don’t have to try very hard to find unincorporated associations all around the country. Many sports clubs, social clubs, charities, alumni associations and miner’s welfare clubs were set up as unincorporated associations tens or even hundreds of years ago. They are often run informally by committees or management boards with a genuine interest in the association’s activities. Very often that activity is pursued as a hobby by the members. It is therefore perfectly understandable that those involved often forget about the good commercial practices that they would perhaps apply to their jobs and businesses.


Ben Holland assesses the impact of Excalibur v Texas Keystone Inc

It is rare for the English courts to impose an injunction preventing parties from conducting an arbitration. This is rarer still where the parties have agreed to arbitration not in London, but in New York, and where none of the parties are domiciled in England and Wales. Excalibur v Texas Keystone Inc & ors [2011] provides an interesting example of when the English courts will determine that the circumstances are sufficiently ‘exceptional’ to justify their intervention in arbitration with a foreign seat.

Melanie Hart reviews the impact of the Trafigura case

On 12 October 2011 the Court of Appeal delivered its judgment in Motto & ors v Ltd & anor (Rev 3) [2011] (Trafigura). Addressing various important issues relating to costs, the court clarified the test of proportionality and ruled that the costs of investigating and entering into CFAs and ATE policies are not recoverable inter parties. In the leading judgment, Master of the Rolls Lord Neuberger recognised that a consistent approach ‘in the vexed area of legal costs’ is important and that the law must be ‘simple and clear’.


John Bruce, Donald McDonald and Majella McGarrigle consider a Court of Appeal case on unfair relationships under the Consumer Credit Act 1974

The recent Court of Appeal decision in Harrison & anor v Black Horse Ltd [2011] has shed light on the legislation regulating ‘unfair’ relationships between lenders and borrowers (normally consumers).

Tim Harris examines the Patents County Court and proposals for a unified patents court

The Patents Court in London has long had an international reputation as a rigorous specialist forum for parties to settle all types of IP disputes. This article reviews two recent notable but quite separate developments: it looks first at the UK’s Patents County Court, which was re-launched just over a year ago, and then considers the current proposals for a Unified Patent Court in Europe.

David Sawtell summarises the law relating to assumption of risk

It would be sensible to expect someone who is injured sliding down the banisters in a pub to face considerable difficulty when trying to bring a claim for damages. For the most part this assumption is right, as recent cases in the High Court and the Court of Appeal have shown. However, when an off duty army officer was injured jumping off a bridge into a river, he was able to successfully claim against the Ministry of Defence. Likewise, the owners of a climbing wall were able to evade liability when a customer fell jumping across a gap, but the owners of a gymnasium were found liable when someone did a forward somersault into a wall. The difference between these cases is that the successful claimants were able to show that the defendant had assumed responsibility for their obviously risky behaviour. The difficulty for practitioners is predicting whether or not a court will hold that someone has ‘assumed’ this responsibility, or instead that the claimant was the sole author of their own downfall.