September/October 2019 #87 – Law Journals

ADR: Once more unto the settlement

Eleanor Scogings assesses the relationship between mediation and litigation ‘The CEDR rules provide for the selection of the mediator and a court could determine by reference to objective criteria whether the parties had engaged in mediation and whether the dispute remained unresolved.’ In Ohpen Operations UK Ltd v Invesco Fund Managers Ltd [2019], the High …

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Injunctions: Hair today, gone tomorrow (almost)

Rick Brown and Victoria Tait review interesting developments in freezing injunctions ‘Even when a company is dissolved, this will not necessarily be a bar to applying for a freezing injunction.’ Freezing injunctions are an important litigation tool used to ensure potential assets are not disposed of and remain available to satisfy a future judgment. Recent …

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Update: Hot off the press

Maura McIntosh reports on some recent developments on contract and privilege ‘Even where an earlier contract is superseded and no longer applies, it may be admissible to explain the meaning of an unconventional, or technical, expression in the subsequent agreement.’ Contract In NHS Commissioning Board v Vasant [2019] the Court of Appeal held that the …

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Drafting: To strive, to seek, to… endeavour

Gwendoline Davies explains ‘reasonable endeavours’ obligations and analyses whether these always comprise a sensible contractual solution ‘An obligation to use “reasonable endeavours” generally means that a party should adopt and pursue a reasonable course of action in order to achieve the desired result, bearing in mind its own commercial interests and the likelihood of success.’ …

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Early neutral evaluation: Cards on the table

Laura Scott highlights a robust intervention by the Court of Appeal ‘Early neutral evaluation is a form of alternative dispute resolution in which an independent and impartial evaluator is appointed to give the parties an assessment of the merits of their case.’ A recent Court of Appeal case is authority for the proposition that the …

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Part 36: You’re free to go

Chris Murray sets out another twist to Part 36 ‘The decision recognises that a Part 36 offer can be genuine even without a damages element.’ In MR v Commissioner of Police for the Metropolis [2019], the High Court recently ruled that an offer to settle for nil damages can be considered a genuine Part 36 …

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Insights by Penningtons Manches Cooper: A slice too far?

Nicole Finlayson and Clare Arthurs look at access to documents by non-parties ‘Cape concerned the extent and operation of the principle of open justice in terms of what access non-parties to litigation should be given to the written material, and how.’ In a showstopper judgment, a unanimous Supreme Court has clarified the extent of the …

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Practice: Bundles of fun

Caroline Greenwell and Simon Heatley consider recent case law on tackling court bundles ‘As Jackson LJ observed in Iliffe, the bundle “should be an aid to the court, not an obstacle course”.’ In the recent case of White Winston Select Asset Funds LLC v Mahon [2019], the court was singularly unimpressed at the claimants’ approach …

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Evidence: Vox populi?

Jack Dillon weighs up the worth of witness evidence ‘The lesson, particularly in a commercial context, is that objective realities weigh heavier than witnesses’ insistence about what would or would not have happened.’ A solicitor makes a negligent error in a negotiation between a client and third party. The error leads the client to agree …

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