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The Commercial Litigation Journal: November/December 2014

Michelle Knight reports on the rejection of an offer to mediate

Parties to civil litigation should take note of a recent decision in the TCC which considered whether the successful defendant had unreasonably refused to mediate and the cost consequences that followed.

Georgina Squire investigates a recent decision dealing with relief from sanctions

The recent decision in Hockley v North Lincolnshire and Goole NHS Foundation Trust [2014] is an indication that the Mitchell regime (as tempered by Denton v TH White Ltd [2014]) is here to stay.

David Sawtell reviews the impact of Excalibur

Litigation funders have an important role to play in commercial litigation. As part of the research for his review of civil litigation costs, Lord Justice Jackson deliberately solicited the views of third-party litigation funders and arranged for a working group to be set up. He dedicated an entire chapter in his final report to them. It was clear that funders opened up access to justice in larger commercial cases which might not otherwise go to court because the claimant could not afford to prosecute its action.


Geraldine Elliott and Sarah Bishop discuss a recent decision looking at the fortification of a cross-undertaking in damages

In Energy Venture Partners Ltd v Malabu Oil and Gas Ltd [2014] the Court of Appeal endorsed for the first time the accepted criteria that must be satisfied before the court can order an application for fortification of a cross-undertaking in damages.

James Tumbridge considers the impact of the EU-Canada trade agreement on dispute settlement

The EU-Canada trade agreement (CETA) is going to eliminate nearly all import duties between Canada and the EU, and is the first major opening for Europe into the NAFTA zone. According to the EU, this will save European exporters around €500m a year. In fact, once implemented, the agreement is expected to increase two-way bilateral trade in goods and services by 23% or €26bn, fostering growth and employment on both sides of the Atlantic. New trade opportunities are always welcome, but alongside them businesses will also face challenges and disputes. This article will consider some of the issues businesses should have in mind when trading between Canada and the EU.

Daniel Kalderimis and Nicole Evans look at the enforcement of tiered dispute resolution clauses

In a departure from the orthodox English approach, the English High Court recently held that an agreement to participate in ‘friendly discussions’ was enforceable as a condition precedent to arbitration.

Rebecca Andrews-Walker and Clare Arthurs assess the impact of Coventry v Lawrence

Just as the dust was beginning to settle from the changes to funding and recoverability of costs ushered in by the Jackson Reforms, the Supreme Court has agreed to hear a challenge to the costs regime which they superseded. In essence, the argument in Coventry v Lawrence [2014] is that the requirement that the losing party pay any success fee or ATE premium incurred by the successful party is an infringement of their rights under the European Convention of Human Rights (the Convention). The ramifications of such a finding are potentially huge and, for the government, expensive.

Forsters LLP

Dominic Ribet explains how the proposed UK registry of corporate beneficial ownership will work

At the 2013 G8 summit, the UK government announced proposals to increase transparency in relation to both the ownership and control of companies. Prime Minister David Cameron said at the time, ‘We need to know who really owns and controls our companies. Not just who owns them legally, but who really benefits financially from their existence.’