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The Commercial Litigation Journal: November/December 2012

Michael Caplan QC assesses the impact of recent developments in extradition on corporate practice

The long arm of American justice has often reached out across the Atlantic to grasp those in this country. Some have argued in vain that if they have committed any offence, given the facts it is more appropriate they should go on trial in the English courts. The Home Secretary announced recently that she is going to introduce a forum bar to enable those in such a situation to be tried here if it is in the ‘interests of justice’. But will this mark a drastic change in our relationship with the US and can business executives now rest easier?

Richard Pike, Henry Garfield and Phoebe Seers review the law relating to legal professional privilege in internal investigations.

There can be no doubt that corporate internal investigations are a hot topic at present. At the time of writing, it seems there are stories in the news every day regarding new corporate investigations, whether into the manipulation of LIBOR or other concerns such as phone hacking or premium rate voting.

Robert Platt and Leah Alpren-Waterman discuss damages-based agreements

In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the Act) will come into force, ushering in a new era in the litigation funding landscape. Although the chief purpose of the Act (and the recommendations for the reform of civil litigation funding made by Jackson LJ lying behind it) are to reduce the costs of civil litigation, particularly in relation to personal injury claims, the reforms will nevertheless have a significant impact on other types of civil litigation, including commercial claims.

Richard Oliver examines recent judicial developments on the treatment of sole option dispute resolution clauses

A ‘sole option’ dispute resolution clause is a clause giving one party to a contract an option to refer a dispute to the courts while the other party (or parties) must refer all disputes to arbitration. These clauses are also seen the other way round, so that all disputes stand to be referred to the courts except for one party having the option to commence arbitration instead. The validity of such clauses is recognised in many, though not all, jurisdictions.


Tracy Head reports on a revision of Simmons v Castle

The most senior judges of the Court of Appeal have revised their decision in Simmons v Castle [2012].

Thomas Crockett looks at recent judicial guidance on litigants in person

It is not an easy task for members of the judiciary to uphold the Overriding Objective as enshrined in the Civil Procedure Rules (CPR) where there is a clear inequality of arms between the parties in terms of legal representation. ‘To deal with cases justly’ includes ‘ensuring that the parties are on an equal footing’ and that cases are ‘dealt with fairly’. The question as to how courts should best apply this ideal, where one or more parties is unrepresented, is not usually answered uniformly. The Court of Appeal in the recent case of Tinkler v Elliott [2012] proffers some useful guidance in respect of this issue.

Clare Arthurs and Chris Hoyer Millar assess the impact of Nolan on disclosure in practice

Disclosure forms the core of most cases, and can be a crucial stage in terms of tactics, strategy and costs. The courts are increasingly interventionist in their management of the disclosure process. Two recent cases illustrate that they are also prepared to be innovative in the directions and orders they make.