November/December 2015 #64 – Law Journals

Insights By Penningtons Manches: ENE takers?

Clare Arthurs and Richard Marshall assess the value of early neutral evaluations ‘The main benefit of early neutral evaluation (ENE) is that it gives the parties a clear idea of how their case (or a specific legal, factual or evidential issue) might be perceived by a judge.’ Litigation, the Pre-Action Practice Direction tells us, should …

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Damages: Offside – a new test for penalty clauses

Paul Joukador and Nathan Searle report on a landmark Supreme Court judgment ‘Provided that the relevant contractual provision: (i) serves a legitimate business interest(s); and (ii) is not extravagant, exorbitant or unconscionable, it will not be a penalty and therefore will be enforceable.’ It is common practice to include a clause in a contract which …

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Part 36: Failed overtures

Maura McIntosh explores a recent judicial interpretation of Part 36 ‘The judge rejected the argument that… the references in the rules to “the whole of the claim or to part of it” must include references to a claim which had not been brought when the offer was made but which was subsequently brought.’The High Court …

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Disclosure: Differential discovery

Teresa Rosen Peacocke investigates whether recent rule changes make US discovery more limited than UK disclosure ‘The key to discovery under the new rule will be proportionality, a concept that has been an integral part of UK civil procedure since the introduction of the overriding objectives under the CPR.’Civil litigation procedure has in some important …

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Costs: Budget cuts

David Sawtell summarises recent costs judgments ‘The summary nature of costs budgeting means that the court may either overestimate or underestimate the future expenditure of costs that will reasonably and proportionately be required.’ Costs budgeting is now a familiar part of the litigation landscape. Costs management hearings are supposed to be carried out quickly and …

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Reform: Keep it in proportion

Adam Dyl takes stock of the implementation of costs reforms ‘Litigators are warned that in assessing costs the court will be more persuaded by arguments that you did all you could to deal with the case proficiently, rather than doing what was in the best interest of your client.’ It has been a few years …

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Banking: Show me the money

Daniela Vella examines the new Financial List: a ‘beacon’ for litigants? ‘Having a single judge, with the appropriate background, experience and understanding of complex financial structures, products and markets, dealing with a case from start to finish is a simple yet effective idea.’ In the second half of 2014 a group of judges from the …

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Contract: Bit of an aggregation?

David Niven and Elisabeth Mason look at aggregation clauses and the AIG Europe case ‘AIG’s case was that the claims brought by the 214 investors against TILP arose from “similar acts or omissions in a series of related matters or transactions”… and should therefore be aggregated, with the result of limiting AIG’s liability.’ The High …

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Freezing Orders: Coming in from the cold

Gwendoline Davies and Andrew Beck review recent cases on freezing orders and provide some practical advice ‘Freezing orders are obviously highly restrictive, but they should not be used oppressively. Respondents should not be forced to cease trading and they should be allowed to meet reasonable expenses.’A freezing order is an interim injunction which restrains a …

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