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Nick Lees explains key cases on exclusion clauses and offers some practical advice ‘UCTA provides, in short, that any attempt to exclude or restrict liability for death or personal injury is void and that any attempt to exclude or restrict liability for other loss is subject to the “reasonableness test”.’ The ability to pre-emptively exclude …
Continue reading "Liability: A conclusion for exclusion?"
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Julian Copeman, Anna Pertoldi and Maura McIntosh review a significant Court of Appeal judgment ‘In the Court of Appeal’s view, the whole subtext of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a settlement.’ On 5 September 2018 the …
Continue reading "Disclosure: It’s a privilege"
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Andrew Burnette looks at liability and the unknown: can the provider of a reference be responsible if it doesn’t know who will rely on it? ‘Taking into consideration the principles set out in both Hedley Byrne and Caparo, the Supreme Court found that in the circumstances of the Playboy case it simply was not possible …
Continue reading "Negligent misstatement: Bouncing bunnies"
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Oliver Middleton summarises a recent case of dishonesty and offers to settle ‘At first instance, the judge was asked to determine if the claimant’s alleged dishonest conduct rendered the usual cost consequences “unjust”, and should therefore be disapplied.’ In the recent case of Tuson v Murphy [2018], the Court of Appeal has overturned a decision …
Continue reading "Part 36: On the hoof"
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Rachel Lidgate and Maura McIntosh discuss a case on variations after a no oral modification clause ‘The law should and does give effect to contractual provisions requiring specified formalities to be observed for a variation, such as NOM clauses.’ In Rock Advertising Ltd v MBB Business Exchange Centres Ltd [2018] the Supreme Court has overturned …
Continue reading "Contract: Talk is cheap"
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Gwendoline Davies explores Supreme Court case law on contractual damages ‘It is necessary for the court to consider post-breach events known at the assessment of damages if they are relevant to and affect the claimant’s loss.’ Commercial parties are generally aware that a breach of contract gives rise, in the majority of cases, to a …
Continue reading "Remedies: One small step"
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Richard Farnhill concludes his examination of privilege and considers if the system is fit for purpose ‘The recent privilege decisions are inconsistent with, and indeed have not considered, the substantive rules on attribution. In the absence of any proper distinction, those rules are binding and the recent privilege decisions are therefore incorrect.’ The first two …
Continue reading "Privilege: Don’t quote me on this"
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Richard Farnhill resumes his assessment of the current law of privilege ‘Cotton LJ divides agents into two camps: those responsible for obtaining legal advice and all the rest. Only communications between the lawyer and the former camp are protected. There are significant issues with that approach.’ In the first part of this article, I examined …
Continue reading "Disclosure: Privileged upbringing"
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James Neill and Chris Hoyle provide a commercial litigator’s guide to the suspension of the award of a public contract ‘This article focuses on one distinctive feature of the current public procurement regime, namely the remedy of an automatic suspension to the award of a public contract.’ Separated by only five years, there is a …
Continue reading "American Cyanamid: You cannot be serious – John McEnroe, quantum physics and public procurement"
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Susan Rosser and Catherina Yurchyshyn assess a recent decision on conspiracy to breach a court order ‘An unlawful-means conspiracy occurs where two or more people act together unlawfully, intending to damage a third party, and do so.’ In the recent case of JSC BTA Bank v Khrapunov [2018], the UK Supreme Court has held that …
Continue reading "Enforcement: A cunning plan"
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