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The Commercial Litigation Journal: September/October 2015

David Sawtell investigates recent case law on repudiatory breach

When a defaulting party is in repudiatory breach of an agreement, the injured party can either accept the repudiation, bringing it to an end, or choose to affirm the contract. This discretion, although a broad one, still has limits, particularly if there is no good reason to affirm the agreement. Deciding whether to terminate an agreement for repudiatory breach of contract has very important repercussions, especially where the agreement governs a long-term relationship rather than a single transaction. Knowing where the boundaries lie is therefore important in the context of contract management. Does a decision-maker in this position need to approach the choice in good faith? Unfortunately, the law in this area has become somewhat confused following the decision in MSC Mediterranean Shipping Company SA v Cottonex Anstalt [2015].

Laura Crawford and Jon Chesman warn against the expedient choice of defendants

On Friday 11 September 2015, in the High Court in London, Mr Edward Murray (sitting as a deputy High Court judge) handed down a reserved judgment: Clutterbuck v Cleghorn (as Judicial Factor to the Estate of Elliot Nichol Deceased) [2015], in which the entirety of the claimants’ £97.5m claim was struck out as an abuse of process. This summary trial was the culmination of a number of years’ speculative litigation by the claimants, Amanda Clutterbuck and Ian Paton, against various defendants. Having been wholly unsuccessful in 2014 in a very similar factual case against Ms Sara Al Amoudi (the trial of which took six weeks and involved 25 witnesses), the claimants sought to try their luck against the substantial estate of the late Mr Elliot Nichol.

Gwendoline Davies and Marshal Ahluwalia look at the lessons to be learned from recent history

Civil litigation in recent years has been dominated by cases and commentary concerned with costs, court fees, procedure and proportionality. In this article, we look at how a little-known older case remains relevant today, and could even provide an effective way to help today’s commercial litigators and their clients to resolve their disputes quickly and cost-efficiently.

Garbhan Shanks and Harriet Stokes highlight the use of a rare form of injunctive relief

In cross-border litigation and arbitration it is not uncommon for a party to seek an anti-suit injunction to stop one party from commencing or continuing proceedings against it in breach of an exclusive jurisdiction/arbitration agreement. Until recently, the question of whether the English courts were willing to grant so-called ‘anti-enforcement’ injunctions – preventing a party from enforcing an award or judgment by a foreign court or tribunal – was less clear.

Victoria Brooks, Tom Beezer and Hannah Cockerill discuss the recent reinforcement of final orders in arbitration proceedings

A recent case in the Commercial Court, Swallowfalls Ltd v Monaco Yachting & Technologies S.A.M. [2015], has confirmed that there can be no second bite of the cherry in court proceedings where a claim has already been determined in arbitration, demonstrating the effectiveness of security for costs and final orders in arbitration proceedings.

Giles Hutt and Whiston Bristow report on the shorter trials and flexible trials pilot schemes

If there is one aspect of English court procedure that litigants would most like to change, it is probably disclosure. Not only is disclosure often time-consuming and expensive, it can also be immensely disruptive of a company’s operations, without always bringing a corresponding benefit in terms of access to an opponent’s documents. Of course, parties disclosing large numbers of documents is appropriate in certain kinds of cases, a good example being those involving allegations of fraud, but it is seen by many as the main downside of English litigation as opposed to arbitration – or indeed litigation in most other jurisdictions.

Martin Meredith considers the conduct of investigatory interviews

A decade ago there was debate over, and submissions made about, the propriety and legality of allowing a company’s legal representative to attend investigatory interviews conducted by regulators on the instructions of a company’s employee. At the time that debate was largely driven by the Health & Safety Executive (HSE) and focused on whether there was a perceived conflict of interest in adopting this approach.

Rustam Dubash and Clare Arthurs evaluate the new bill of costs and time recording codes

Opinion appears divided about the proposed new form bill of costs and the standard time recording codes which underpin it (the J-Codes). On the one hand, there is concern that they are more complicated and time-consuming for practitioners; on the other, recognition that they should prove much better for clients and the courts. Debate in our team has been lively, but there is no escaping the fact that the time recording and billing landscape is set to change in the near to medium future.

Clare Arthurs and Sebastian Kokelaar examine the role of commercial common sense in the interpretation of contracts after Arnold v Britton

In the case of Arnold v Britton [2015] the Supreme Court has again had occasion to consider the principles governing the interpretation of contracts. This is the fourth time in a decade that this subject has been considered at the highest level. The decision is important because it revisits the question of how far the courts should allow themselves to be guided by commercial common sense in construing the language used by the parties in their agreement.