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The Commercial Litigation Journal: September/October 2013

Robert Salis and David Sawtell review estoppel and res judicata

Issue estoppel, cause of action estoppel and res judicata are often discussed but rarely defined. To a defendant, they appear to offer an attractive knock-out blow, particularly in relation to matters that they believed they had dealt with in other proceedings. However, the precise circumstances in which this plea might succeed has often evaded definition. To the prospective claimant they offer a vague warning not to keep on trying the same issues in different capacities or against other defendants. This uncertainty has been relieved by three cases this year, one from the Supreme Court and two from the Court of Appeal. It is now apparent that the courts will keep these rules within tight boundaries.

Kennedys

Dan Carnall offers an overview of recent case law on cost budgeting

The Jackson reforms introduced new rules providing courts with the ability, and responsibility, to costs manage in the vast majority of civil claims. In cases issued after 1 April 2013, and in other cases where the court so orders, the court is required to manage the steps taken by the parties and the costs incurred in proceedings, to ensure compliance with the updated overriding objective. The revised objective insists that cases are not only dealt with justly (as before 1 April), but now also at proportionate cost.

Morten Frank and Gregers Gam outline the Danish approach to the recognition of foreign judgments

Traditionally, Denmark has not recognised foreign judgments rendered in jurisdictions outside EU (and EFTA). Conversely, arbitral awards are recognised, regardless of their origin. In this article, we will set out the Danish approach, including a review of the newest court decisions, which by some scholars have been suggested as authority for a widened scope of recognition on a non-statutory basis for foreign judgments.

Joanna Ludlam and Ben Ko consider recent guidance on limitation and judicial review claims

The new rules on time limits in judicial review are now in force. In addition, the recent decision of the Administrative Court in R (on the application of Nash) v Barnet London Borough Council [2013] (upheld on appeal) and the Court of Appeal in R (on the application of Willford) v The Financial Services Authority [2013], set out guidance on when the limitation period for a judicial review claim starts to run and the availability of judicial review in cases where there is a statutory appeal process.

Rod Cowper examines recent approaches to the interpretation of guarantees

Although judicial piercing the corporate veil has grabbed many of the legal headlines this year, it is its contractual functional equivalent which remains of greatest importance to commercial life as a whole.

Daniel Butler and James Whittaker discuss recent case law on case management

The Jackson reforms promised new robust procedures on costs and case management, so what has been the consequence of the reforms in practice six months on?

Julia Staines and Adam Welsh look at the costs of budgetary non-compliance

In November 2008, Sir Anthony Clarke (then Master of the Rolls), appointed Lord Justice Jackson to review the cost of civil litigation, and to make recommendations in order to ‘promote access to justice at proportionate cost’.