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The Commercial Litigation Journal: September/October 2012
Kerman & Co

Zane Shihab assesses the tensions between sport and sponsorship in the aftermath of the Olympics

Despite Paddy Power’s tongue-in-cheek billboards that stated: ‘Official sponsor of the largest athletics event in London this year! There you go, we said it. (Ahem, London, France that is)’, referring to the bookmaker’s sponsorship of an egg-and-spoon race in London, France, effective ambush marketing campaigns centering on the 2012 Olympic Games were largely conspicuous by their absence.

Anna Pertoldi and Maura McIntosh consider a recent decision on protection of confidential information

In Generics (UK) Ltd v Yeda Research & Development Co Ltd [2012], the Court of Appeal has considered whether, and in what circumstances, a former employed lawyer will be restrained from acting adverse to a former employer in order to protect that former employer’s confidential information. This is a decision that may have far-reaching consequences for professionals and their employers alike.


Ben Holland outlines the final chapter of the West Tankers case

Where parties have agreed that disputes should be arbitrated in London, and one party subsequently breaches this agreement, commencing court action in another EU member state, what should the cost consequences be? This was the question decided by the Commercial Court in West Tankers Inc v Allianz SpA [2012]. The case was an appeal on a point of law to the courts of the seat of arbitration under s69 the Arbitration Act 1996. The arbitrators had decided that they had no ability to award damages for costs against the party which had brought the court proceedings in breach of the arbitration agreement. The Commercial Court disagreed. In doing so, it reinforced English law’s respect for the principles of party autonomy and also its support for international arbitration.

David Niven and David O’Brien examine the perils of pursuing indemnity insurers

In high-value professional negligence claims against small firms of solicitors, claimants will often be entirely reliant upon those firms’ professional indemnity (PI) insurers to pay any damages awarded. Problems arise due to the fact that neither the solicitor defendants nor their insurers are required to confirm that the claim will be covered by the policy, nor disclose the terms of indemnity under the policy, until such time as the claim has been proven and the defendant solicitors have gone into insolvent liquidation (The Third Party (Rights Against Insurers) Act 1930 provides claimants with remedies directly against insurers in those circumstances). This creates uncertainty when litigating, as a claimant can incur substantial costs bringing his claim to trial, to find that the solicitor defendants have become insolvent and that the claim is not covered by their PI insurance.

Lee Coulthard outlines some common pitfalls in the use of Part 36

When seeking to settle a claim, CPR Part 36 is a powerful tool that allows claimants and defendants alike to place significant pressure on their opponents in their attempts to reach a pre-trial settlement. However, when treading on Part 36 territory it is vital that practitioners keep an eye on the potential pitfalls as a misstep can have serious consequences for costs liability or recovery.


David Robinson reviews a recent case on an accountant’s duties of care to third-party investors in an existing client

In Arrowhead Capital Finance Ltd (in Liquidation) v KPMG LLP [2012], the High Court has provided clarification on an accountant’s duty of care to investors in one of its clients that will be welcomed by both accountants and their professional indemnity insurers alike, holding that KPMG owed no duty of care to a third- party investor. The case will also be of considerable interest to auditors, who are often the subject of similar claims.

Alice Anderson and Sarah Harris look at lessons to be learned from Mayer v Hoar

As any seasoned defamation lawyer will know, two of the principal defences to a defamation claim are the defences of absolute privilege and qualified privilege.


Tracy Head examines the tension between Jackson and the Court of Appeal’s declaration to increase general damages

Lord Justice Jackson made 109 recommendations in his final report as the basis of fundamental review of the rules and principles governing the costs of civil litigation (published in January 2010). The tenth recommendation in the list was that in personal injuries litigation the level of general damages for pain, suffering and loss of amenity (PSLA) be increased by 10%. He made the same recommendation for nuisance, defamation and any other tort that causes suffering to individuals.