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The Commercial Litigation Journal: September/October 2016

David Sawtell looks at how technology might help with e-disclosure

The proliferation of electronic documents has increased the workload and cost associated with disclosure. The use of technology to assist with e-disclosure through computer-assisted review has promised much to ease the burden. Until recently, however, there has been very little guidance on its use to conduct a review of potential documents for disclosure. Two decisions this year in the High Court have provided a much-needed steer about the system called predictive coding. Practitioners should be aware, however, that the court will continue to require the assistance of litigators and software companies to deal with, and adjudicate upon, the fine-grained detail of computer-assisted review.

Serle Court

Khawar Qureshi QC reports on the success of the UK Bribery Act 2010 five years on

The international political will to investigate large-scale corruption allegations remains questionable. In the UK, the authorities were severely criticised following the decision (ostensibly of the director of the Serious Fraud Office (SFO)) in December 2006 to terminate the investigation into alleged payments of bribes to Saudi officials for the BAE arms deal known as ‘Al-Yamamah’.

Sandra Paul presents a legal guide through the headline trial of the year

Only those of the most Luddite disposition can have failed to be aware of the current storyline of The Archers involving domestic abuse. In short, mild-mannered Helen Titchener (née Archer) stabbed her controlling and coercive husband Rob. Helen was about to leave Rob, taking her five-year-old son Henry (who was also present during the incident) with her. In a rage, Rob brandished a knife, making it clear to Helen that the only way she would leave was if she killed herself. Turning the table in classic Kobayashi Maru style, Helen caused the injuries which placed Rob on life support and needing a stoma.

Martin Cox provides another view of the Freedom of Information Act

Under the Freedom of Information Act 2000 (FOIA), any individual or organisation anywhere in the world has the right to access any information held by public authorities in the UK, subject to certain specific exemptions.


Rick Brown and Victoria Cowan examine recent case law on security for costs post judgment

Security for costs orders are regularly sought at an early stage of a claim by defendants seeking to protect their ability to recover costs from an unsuccessful claimant, but, until recently, there has been limited case law relating to whether they can be applied for post judgment. This was discussed at length in the recent case of Republic of Djibouti v Boreh [2016].

Rustam Dubash and Clare Arthurs consider the conclusions of the Briggs Review

Briggs LJ described the purpose of his recent Civil Courts Structure Review as (1.3):


Elizabeth Wiggin and Geraldine Elliott weigh up a recent case on freezing orders

In the recent case of National Bank Trust v Yurov [2016], the High Court considered an application to set aside a freezing order in the sum of US$830m, on the grounds that there were serious breaches of the duty of full and frank disclosure and there was no real risk of dissipation. The judgment offers valuable guidance on the implications of material non-disclosure and will be of interest to both applicants and respondents dealing with an application to set aside a freezing order.

In the second of two articles, Ian McDonald and Daniel Cook conclude their consideration of malicious prosecution

On 20 July 2016, a nine-member panel of the Supreme Court handed down its judgment in Willers v Joyce [2016]. The panel decided by a 5:4 majority that a claim for malicious prosecution of civil proceedings is sustainable in English law. The leading judgment was given by Lord Toulson, with whom Lady Hale, Lord Kerr and Lord Wilson agreed. Lord Clarke delivered a concurring judgment, and dissenting judgments were given by Lords Neuberger, Mance, Sumption and Reed.