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The Commercial Litigation Journal: November/December 2016

James Driver provides a reminder of the court’s powers over expert evidence

The recent decision in Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] serves as an important reminder that the courts have a wide discretion to order the disclosure of any expert evidence, including communications with experts and documents produced by experts. Parties need to be mindful that any communications with experts and any documents produced by experts must be treated as potentially disclosable.


Ieuan Jones explores a controversial decision implementing the proportionality test

Following the controversial costs decision in BNM v MGN Ltd [2016], the Court of Appeal will now hear a fast-tracked claim, possibly by Christmas.

Sandra Paul and Sophie Wood consider the impact of the Modern Slavery Act 2015 over the past year

The Modern Slavery Act 2015 (MSA 2015) which came into force on 31 July 2015 is the first legislative framework to specifically address slavery and trafficking in the 21st century. We look back over the past year to see how it has been used, what impact it has had and what developments there have been since.

Kayleigh Bloomfield looks at Wrotham Park damages

Restrictive covenants may be instinctively characterised as belonging to the law of property. However, they can be a useful tool to utilise in employment contracts, partnership agreements, contracts of sale and commercial contracts more generally as a mechanism by which parties can impose negative stipulations upon one another in order to protect their commercial interests.

Alex Fox and Rebecca Andrews-Walker weigh up the recent decision in Horton v Henry

When this topic was last considered two years ago, there was a real danger of pension rights (previously thought of as sacrosanct) being within the reach of trustees in bankruptcy by way of an income payments order (IPO). There were also two conflicting first instance decisions in play. The issue? Whether a pension entitlement capable of drawdown by election, but not yet in payment, can fall within the definition of income in s310(7) Insolvency Act 1986 (IA 1986), and so be the potential subject of an IPO.

Tom White and Emma Holmes return to the problem of court fees

In 2015 we saw some substantial rises in court fees, including, in particular, fees for issuing claims. This rise in fees saw vehement opposition in some quarters, on the basis that it would become uneconomic or prohibitively high for some claimants to bring their claims. We have now started to see examples in practice where, on the face of the claim form, claimants may have not paid the correct issue fee. There have been a number of recent cases in which the courts have considered this issue, in response to attempts by defendants to knock out claims on the basis of limitation arguments following payment of incorrect court fees. As the cases make clear, the approach that the courts will take depends on the reasons behind the payment of the incorrect fee. The calculation and payment of correct fees is something that claimants’ and defendants’ solicitors need to be aware of, or they may face potential allegations of negligence.

Jane Parsons examines emergency relief in arbitration

It was commonly thought that the provisions for emergency relief under the London Court of Arbitration (LCIA) Rules 2014 increased a party’s options, in that there was a choice between applying to the arbitral tribunal or the English court for such relief. However, the recent judgment of Gerald Metals SA v Timis [2016] strongly indicates that the court’s powers and parties’ options are in fact restricted in circumstances where the tribunal is able to provide timely and effective relief under the LCIA Rules.


James Morrison outlines a recent application for security for costs

In Agents’ Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman) [2016], the defendant sought additional security for costs in a claim relating to the terms of membership of online property portal OnTheMarket. The claimant had already provided security of £500,000. However, the defendant sought a further £1m in circumstances where it estimated that its total costs would be just over £2.8m.

Clare Arthurs and Phillip D’Costa highlight recent case law on frustration

Frustration: the feeling of being upset or annoyed as a result of being unable to change or achieve something. An apposite word for many in this most capricious of years. Legally speaking, a contract is frustrated when something happens which makes it impossible or illegal to perform the contract, or which changes the parties’ contractual rights and obligations so fundamentally that it would be unjust to make the parties perform them.

Maura McIntosh reports on a recent application of the Mitchell sanction

In the recently reported case of Jamadar v Bradford Teaching Hospitals NHS Foundation Trust [2016], Jackson LJ delivered the leading judgment dismissing an appeal against the imposition of the so-called Mitchell sanction where a party failed to file a costs budget when required to do so, so that he was treated as having filed a budget limited to court fees.