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Legal Developments in the The Legal 500 UK 2020

What extra powers does a criminal prosecution provide in your area?

The following article discusses session three in the IR Global Virtual Series on 'Freezing Assets - The mechanics behind cross-border injunctions'

What tools or treaties exist to aid discovery of assets, the granting of orders and recovery?

The following article discusses session two in the IR Global Virtual Series on 'Freezing Assets - The mechanics behind cross-border injunctions'

What injunctions are available in your jurisdiction in order to freeze assets?

The following article discusses session one in the IR Global Virtual Series on 'Freezing Assets - The mechanics behind cross-border injunctions'

Assignment of claims: Are there any constraints to assigning claims or seeking cost guarantees?

The following article discusses session three in the IR Global Virtual Series on 'Litigation Funding: Handling commercial and financial disputes

Litigation Funding: Are there any particular rules around funding litigation in your jurisdiction?

The following article discusses session two in the IR Global Virtual Series on ' Litigation Funding: Handling commercial and financial disputes

Arbitration: What formal or informal requirements exist for an arbitration agreement in your juris?

The following article discusses session four in the IR Global Virtual Series on 'Litigation Funding: Handling commercial and financial disputes'

Court Fees: What are the costs of civil court proceedings in your jurisdiction and who bears them?

The following article discusses session one in the IR Global Virtual Series on ' Litigation Funding: Handling commercial and financial disputes

Civil Litigation - Gulbenkian Andonian

Gulbenkian Andonian Solicitors and Notaries have considerable and vast experience in most aspects of civil litigation specialising in contract disputes, discrimination claims, and tort law.

Staying Ahead of the Curve: Implementing Effective Arbitration Agreements

What is your best practice approach for ensuring arbitration clauses are to the real advantage of your client?

Discuss securing an advantageous jurisdiction/legal code for post-arbitral enforcement proceedings

February 2019 - Litigation & Dispute Resolution. Legal Developments by IR Global.

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The following article discusses session two in the IR Global Virtual Series on 'Staying Ahead of the Curve - Implementing Effective Arbitration Agreements'.

Identify the best practice approach for ensuring arbitration clauses are advantageous to your client

February 2019 - Litigation & Dispute Resolution. Legal Developments by IR Global.

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The following article discusses session three in the IR Global Virtual Series on 'Staying Ahead of the Curve: Implementing Effective Arbitration Agreements'

What factors influence your choice of arbitration forum when a dispute arises?

January 2019 - Litigation & Dispute Resolution. Legal Developments by IR Global.

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The following article discusses session one in the IR Global Virtual Series on 'Staying Ahead of the Curve - Implementing Effective Arbitration Agreements'.

What Happens To Your Children When You Divorce?

When a couple decide to end their marriage, the two most pressing questions are:

  1. How will we divide our finances; and
  2. What will happen to the children?

Thankfully, the family law system in the UK is designed to support couples make arrangements for their children following the breakdown of a marriage.  However, disputes can arise, sometimes years after the decree absolute has been granted.

One of the most important things a parent can do if a dispute surrounding child arrangements arises is to seek the best advice from an experienced family solicitor in London.  By doing so, you greatly reduce the chance of having to go to court to obtain a Child Arrangement Order, a process which can be very stressful and cause further animosity between you and your spouse.

When the court makes a decision on the upbringing of a child, it is a fundamental principle of English law that the child’s welfare is the paramount consideration.  Therefore, when negotiating arrangements for your children or attending mediation if a dispute develops, couples should ensure the interests of their children are put first at all times.  It goes without saying that most parents do this naturally; however, the process of going through a divorce can be so emotionally charged, sometimes it is best to have an objective professional to assist you to regain perspective if you feel sentiments are spiralling out of control.

Short Marriage – Reduced Financial Settlement?

Sharp v Sharp [2017] EWCA Civ 408

Short marriages that end in divorce can result in many questions involving the financial settlement.  If a couple has only been married a short period of time (five years or less), should there be an expectation that the presumption of equal division of assets and property applies?  In the Court of Appeal case of Sharp v Sharp [2017] EWCA Civ 408, it was ruled that marital assets should not be evenly split in such a scenario.

How To Get A Divorce In England and Wales – Part 1

The festive period is normally a time for happiness and celebration when families come together. However, the stress and strain of Christmas can cause marriages which are already hanging by a thread to snap completely. For international families, the pressure of Christmas can be even more intense, especially for those trying to juggle family commitments in different countries.

A Basic Guide To Judicial Review In Immigration Cases

OTS Solicitors is highly ranked in the Legal 500 and one of the most respected, successful niche law firms in London, specialising in immigration, commercial, civil litigationemployment, and family law.  We also provide immigration consultancy and legal advice to nationals in the Middle East, including Saudi Arabia, Abu Dhabi and Dubai.

Finding the 
right words

In the recent case of Newbury v Sun Microsystems [2013], the defendant argued that an offer to settle proceedings was ‘in principle' only and that a binding contract could not be formed until further terms had been agreed and a formal contract had been signed. It supported this argument by referring to a statement, in the offer letter, that the settlement was to be ‘recorded in a suitably worded agreement'. 

The judge rejected this argument and held that a binding contract was formed when the claimant replied later the same day accepting the claimant's offer. The statement, in the defendant's offer letter, that the settlement was to be recorded in a suitably worded agreement was not sufficient to ‘negative' an intention to create legal creations and was not a pre-condition of a contract being formed. Objectively, those words did no more than reflect an intention to record in writing a contract that had already been finalised. The position would have been different if the offer letter had been expressed to be ‘subject to contract'.

Behind the corporate veil: is that all there is?

That companies have an existence entirely separate to that of their shareholders and directors is a foundational principle of English law and commerce.

But, however much historians and economists (and economic historians) may enjoy surveying the grand historical sweep of the development of trade and increasing prosperity, and the role of the company in that story, the practical effect of the company's separate legal personality can cause difficult questions to arise in the day-to-day practice of law. 

Silence is not always golden

In PGF II SA v OMFS Company 1 Ltd [2013], the Court of Appeal considered, for the first time, whether a failure by a party to respond to an invitation to mediate should be treated as an unreasonable refusal to mediate - previous cases having focused on situations where there had been an express refusal to do so. 

The Court of Appeal held that silence in the face of an offer to mediate is of itself unreasonable - even if circumstances exist which would justify an express refusal to mediate.

You can’t always get what you want

Recent cases have illustrated a growing trend of third parties, often themselves involved in litigation, seeking to obtain documents not only from the court file, but also at trial, in relation to other similar or related litigation. This bulletin summarises the law and practice in relation to the different categories of documents that are frequently the subject of disclosure requests or applications by third parties taking advantage of the policy of ‘open justice'; it also addresses the steps which a party to a dispute can take to keep those documents confidential.

Former employee slips through the net in breach of confidence claim

September 2013 - Litigation & Dispute Resolution. Legal Developments by Macfarlanes.

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The recent decision of the Supreme Court in Vestergaard Frandsen A/S (now known as MVF 3 ApS) & ors v Bestnet Europe Ltd & ors[2013] provides a helpful discussion of the circumstances in which an employee can or cannot be held liable for a breach of confidential information. The Supreme Court said that, ultimately, liability for breach of confidence is based upon the conscience of the recipient of the confidential information. In unanimously rejecting the claimants' claim against a former employee, the Supreme Court made the following points of general interest.

Absent an express term in her employment contract, a former employee could not be liable for misuse of confidential information which she did not herself acquire and which she did not realise was being misused (to further the interests of a new business with which the former employee was involved).

However, liability for breach of confidence would arise once the former employee was told, or should have appreciated (by not turning a blind eye), that the relevant information was confidential. At that stage, the recipient's conscience is affected and they become liable.

The law has to maintain a realistic and air balance between the effective protection of confidential information and the maintenance of competition in the market.

There’s a new sheriff in town: the Jackson reforms and the new culture of ‘robust’ case manage

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.

In his final report into the costs of civil litigation in England and Wales, Jackson LJ expressed the view that:

‘… courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed.’

Are you obliged to 
act reasonably?

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.

Commercial contracts often contain provisions that allow one party to take a certain step, or to make a particular decision, which will have an impact on another contracting party. Commenting on such a situation inAbu Dhabi National Tanker Co v Product Star Shipping Ltd (The ‘Product Star') [1993], Leggatt LJ said that ‘where A and B contract with each other to confer a discretion on A, that does not render B subject to A's uninhibited whim.' In other words, the court will normally imply a term limiting the decision maker's discretion. 

Supreme Court provides guidance 
on forum conveniens and piercing the corporate veil

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.

This article considers the Supreme Court decision in VTB Capital plc v Nutritek International Corp & ors [2013]. Perhaps the most striking aspect of the case is that it casts doubt on the notion that the Court has the power to pierce the corporate veil. The Supreme Court also held that, even if the power to pierce the corporate veil does exist, it does not enable a claimant to hold parties that control a company jointly and severally liable under contracts entered into by that company. 

No change: Supreme Court holds that accountants’ tax advice is not protected by privilege

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.

In R (on the application of Prudential plc & anor) (appellants) v Special Commissioner of Income Tax & anor (respondents) [2013], the Supreme Court has held, by a majority of 5:2, that legal advice privilege (LAP) does not apply to communications between a client and an accountant seeking and giving legal advice on tax law. As a result, tax advice, when given by accountants, will not be privileged - even though the same advice would attract legal advice privilege if given by a solicitor.

Absence of assets: no bar to worldwide freezing order jurisdiction

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.

In Royal Bank of Scotland plc v FAL Oil Company Ltd & ors [2012], Mrs Justice Gloster held that the English court had jurisdiction to grant a worldwide freezing injunction and worldwide disclosure orders despite the defendants not having any assets in the jurisdiction and the substantive claims being pursued in 
the UAE. 


SerVaas v Rafidain: state immunity

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.

The Supreme Court has recently considered the issue of state immunity in the case of SerVaas Incorporated v Rafidain Bank & ors [2012].

At what cost? The introduction of costs management in court proceedings

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here

In the final report of his review 
of civil litigation costs, Lord Justice 
Jackson made it clear that he considers litigation to be too expensive and that 
the high costs of bringing or defending 
a claim in court effectively limit access 
to justice. He proposed that the court's case management powers be expressly extended to allow judges greater control over the costs during the proceedings. 
This proposition is a dramatic and fundamental departure from the current practice, where parties usually only argue about costs after trial or after their case has settled.

To Belize, or not to Belize, that is the question: have the traditional tests for...

Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here

implying terms into contracts been superseded?  

In the recent case of Jackson v Dear 
& anor [2012], Briggs J considered, among other things, the extent to which traditional tests for implying terms into contracts have been superseded by Lord Hoffmann's decision in the Privy Council case of (1) Attorney General of Belize (2) ECOM Ltd 
(3) Belize Telecommunications Ltd v (1) Belize Telecom Ltd (2) Innovative Communication Co LLC [2009]. This article focuses on that element of Briggs J's judgment. It also considers the case of SNCB Holding v UBS AG [2012], in which Cooke J also considered the impact of 
Lord Hoffmann's dicta in the Belize case and made some interesting comments about pleading implied terms.

Sins of the father

September 2012 - Litigation & Dispute Resolution. Legal Developments by Macfarlanes.

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It is a well-established principle of company law that a company has a separate legal personality from its members (Salomon v A Salomon & Co Ltd [1897]). In certain limited circumstances, such as where the corporate structure has been used for the purposes of a fraud or as a device to avoid an existing contractual or legal obligation, the court will 'pierce the corporate veil' but, as a general rule, shareholders will not be liable for a company’s acts or omissions.

Internal investigations: what you need to know

September 2012 - Litigation & Dispute Resolution. Legal Developments by Macfarlanes.

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Barry Donnelly and Iain Mackie examine the questions every in-house lawyer needs to answer when dealing with internal investigations and working with the Financial Services Authority. 

Whose confidential information is it anyway?

The recent case of Jones v IOS (RUK) Ltd & anor [2012] concerned a claim for damages for breach of a confidentiality agreement. In the opening paragraph of his judgment, His Honour Judge Hodge QC identified three ‘interesting issues of law’ that he needed to decide, namely:

Clarifying the law on limitation periods

The Limitation Act 1980 (the 1980 Act) and certain specific statutes set out the law in respect of the defence of limitation and the timelines within which claims may be brought. There is no principle of limitation of common law and in the absence of any relevant provision in the 1980 Act, no limitation period will apply, although the doctrine of laches may prevent successful pursuit of an action.1 The 1980 Act has been subject to several reforms over the years and many consider this area of the law to be unnecessarily complicated.

Say it like you really mean it: exclusion clauses

In the recent case of Internet Broadcasting Corporation Ltd (t/a Nettv) & anor v Mar LLC (t/a MarHedge) [2009] the High Court held that perhaps, despite what the parties had agreed in words, an exclusion clause that excluded all claims to loss of profit would not be effective in circumstances where the party relying on it had inexcusably terminated the agreement early.

Litigating financial markets disputes: do we have a deal?

Until very recently no other sphere of commercial activity could match the financial markets for the size, volume and speed of their dealings. Trades involving enormous sums are often negotiated and agreed within the space of a few short telephone conversations, or during the course of a single evening, by sophisticated professional traders experienced and versed in the customs of the particular market. Often the broad commercial terms of a transaction are negotiated and it is left to the parties’ legal advisers to supply the detailed terms on which the deal is to be done.

No duty to save you from yourself

The recent case of Graham Calvert v William Hill Credit Ltd [2008] examined the difficult issue of whether bookmakers can be liable to their customers for failing to implement steps to protect them from their own actions. Daniel Silver considers the recent Court of Appeal judgment.

Claims without contract: economic torts come of age

If your business has been harmed by a competitor that has persuaded others to renege on their contractual obligations to you, or pressured or conspired with others to interfere with your interests, then a claim based on one or more of the economic torts might be for you.

Confidentiality in international arbitration

How essential is confidentiality in
 international arbitration? In considering this, two distinct aspects of the nature of confidentiality in arbitration require examination. The first stems from the fact that arbitration is a closed process and it is implicit that strangers shall be excluded from it. 

Boilerplate with bite

A number of recent decisions have highlighted two aspects of ‘boilerplate’ clauses to which parties will be held strictly: dispute resolution mechanisms and jurisdiction clauses. It is essential that those negotiating complex contractual arrangements consider and understand these clauses and are satisfied that the scope of them is appropriate in the circumstances. For those dealing with a dispute arising under an agreement with relevant clauses, it is important to consider their impact at an early stage. Failure to do so can be costly and time-consuming. It could also hand an early court victory, and therefore a tactical advantage, to the other side. 

Claims arising from the current liquidity crisis: deal or no deal?

NO MATTER HOW STRONG YOUR CLAIM, THERE IS often little to be gained in suing a party without deep pockets. This is a lesson of greater significance in the current market conditions. It appears to be well understood by both investors and their lawyers. There is an increasing focus on ensuring that any potential claim, arising out of the current liquidity crisis, is directed against or involves entities that can provide meaningful compensation.

Expert determination:: an effective tool?

EXPERT DETERMINATION IS AN ALTERNATIVE METHOD of dispute resolution that is frequently used for disputes where there is a requirement for technical expertise, for example, in the IT, accountancy or construction fields. It is not, however, confined to specialised areas, and can be deployed in a wide range of disputes where the parties prefer a quick and confidential determination rather than undertaking comparatively expensive and protracted court or arbitration proceedings.

Europe’s changing mediation landscape

ON 21 MAY 2008 THE EUROPEAN PARLIAMENT AND the Council of the European Union adopted Directive 2008/52/EC. The Directive makes arrangements for the promotion and use of mediation in certain civil and commercial matters. The Directive is the result of an extensive process of consultation and consideration, which started with the Council in May 2000, continued with the European Commission presenting a Green Paper on alternative dispute resolution in commercial law in April 2002, and concluded with extensive debate and negotiation between the Commission, the Council and the European Parliament.

Damages: OFT case offers cold comfort on penalty clauses

BEFORE ESTABLISHING WHETHER IT IS ECONOMICALLY viable to bring proceedings for breach of contract, consideration must always be given to the amount of damages likely to be recovered and, in particular, whether there are any provisions that affect the level of damages available – or, indeed, which provide for an agreed level of damages. If there are such clauses, consideration must always be given to whether they are in fact unenforceable on the basis that they fall foul of the common law rule against penalties.

Conditional fee agreements: a change in the UK litigation landscape

WE LIVE IN FAST-MOVING TIMES. THE SLUMP IN US house prices last year, and the consequent collapse of the US sub-prime mortgage market, has already had a severe global impact and led to investment bank write-downs and the notorious ‘credit crunch’. The current victims of this liquidity crisis, encompassing both corporate entities and individuals, are well-known. The recent negotiations between Bear Stearns and JP Morgan, whereby the latter has sought to purchase the entire share capital of the former for $2 a share when only a year ago such shares traded for $170, suggest that there will be further victims.

Litigation and internal investigations sub-committees: safeguarding privilege

In most larger company litigation and internal investigations, directors of the board are appointed to a sub-committee formed specifically to deal with the litigation and report major findings, or defer major decisions, to the board. Typically, a sub-committee will comprise the legal director, the finance director and the commercial director of the relevant business stream. They run the day-to-day litigation, liaise with external lawyers, and may give a periodic update to the board.

Litigation costs: recent developments

Litigation has the potential to result in considerable expenditure for parties. Solicitors face substantial difficulty in preparing costs estimates because, by its very nature, litigation can be unpredictable. Indeed, a costs estimate prepared at the beginning of a case can quickly become out of date as certain events occur – for example: disclosure becomes more complex; the case requires a heavy exchange of correspondence; extra witnesses are needed; the parties decide to appoint more experts; or the parties need to make additional applications to court.

Corporate reputation: how to protect your biggest asset

It is essential in today's fast-moving environment for corporations to be able to respond swiftly to threats to their reputation. In addition, they need to be conscious of the full range of remedies that are available. This is particularly the case where the damages for defamation no longer reflect the ‘heyday’ of London as the defamation capital of the world. Rapidly rising legal costs and declining awards are just some of the factors to weigh up when taking the decision as to whether the spotlight of publicity occasioned by the commencement of proceedings and a subsequent trial will make matters better or worse. If information does reach the press it is absolutely critical for corporations to have in place a process for pooling their legal and PR expertise – reactions in those early days can be critical in determining the portrayal of the position and the new armoury, in the form of the developing law of privacy, can be used to assist.

Is privilege still a substantive legal right

Has the effect of new government plans and legislation, together with the recent approach of the judiciary in the UK and the EU, affected the provision of legal advice by diminishing the role played by privilege? This article considers recent developments that have impacted on the rules of privilege at both UK and European level, and in particular:

The use of damages clauses to enforce arbitration agreements

Recently there has been a furore surrounding the application of the anti-suit injunction in Europe. This has led many practitioners to assume the worst for the European Court of Justice’s (ECJ) forthcoming consideration of West Tankers Inc v RAS Riunione Adriatica di Sicurta SpA and others (the Front Comor). It is widely believed that, for intra-European disputes, parties will no longer be entitled to an injunction to restrain proceedings brought in breach of an arbitration agreement. They will instead have to wait for the court ‘first seised’ (ie the wrong court) to dismiss the action, as required under EC Regulation 44/2001 (the Regulation), which addresses judgments and jurisdiction.

EC merger control: how in-house lawyers and their competition counsel can make use of arbitration

Over recent years, the European antitrust regulator, the European Commission in Brussels, has initiated a practice of using arbitration commitments to clear cross-border acquisitions within the internal market. In-house lawyers and their competition counsel are often not aware of these developments and the benefits that can be obtained from using international arbitration clauses as a monitoring tool for behavioural commitments with a view to securing clearance of a proposed merger from the Commission.

Drafting arbitration clauses – the international considerations

As readers are no doubt aware, there are many methods available for companies to resolve disputes with their contractual counterparties. These range from a variety of non-binding mediation techniques to the more established and most common way of resolving disputes: litigation. Within this spectrum, arbitration is by far the most developed form of alternative dispute resolution, carrying international recognition in a way that litigation in national courts may not. In this article we aim to provide some practical guidance on how parties that have chosen to resolve disputes by arbitration can ensure that disputes are resolved in the way chosen by them without uncertainty, delay and expense.

Breaking up is hard to do - severing contracts between principals and agents

Most parties involved in an agency relationship, whether they are the principal or agent, will be aware of the impact of the Commercial Agents (Council Directive) Regulations 1993 (the Regulations) on their commercial arrangements.1

Mediation gets results for in-house lawyers

Mediation is a powerful tool to use as part of an effective risk-management policy. It is of great help to in-house lawyers, who constantly need to manage risk and keep costs down. When there is an operational or systemic breakdown, the in-house lawyer will look for a speedy solution to disputes with as little disruption to the day-to-day running of the business as possible, whilst restoring working relations and profit margins. Furthermore, for a business to stay ahead in a competitive market and fill investors with confidence, it needs to have a sound comprehensive risk-management policy that will proactively head off dislocation and therefore save costs.

Promises, promises - judicial review, a change of plan and other considerations

In February 2007 Greenpeace successfully challenged the DTI's decision to include ‘nuclear new build' in the UK's future energy strategy. As a result of Sullivan J's ruling in that case, the DTI has now promised a new round of public consultation on the future of nuclear energy, which will inevitably impact on its energy timetable and the implementation of any new strategy.

Criminalising market abuse - the shifting sands of enforcement by the FSA

Only a tiny minority of people engage in fraud and/or money laundering, and few professionals in the financial markets, or indeed in the wider corporate marketplace, would consider that what they do during their working hours could conceivably lead to a criminal prosecution.

E-disclosure - more change ahead?

Back in September 2005, new court rules came into force which addressed ‘e-disclosure' for the first time. There was a fair deal of discussion about what effect those changes would have (see for example IHL136, p72-76). Now, with the benefit of hindsight and experience, what can be said about the impact of those changes? In the past 18 months have people undertaken e-disclosure differently? Or did the changes simply reflect the existing practice and do no more than generate column inches in the legal press?

Derivative claims under the Companies Act 2006

The implementation of the Companies Act 2006 (the Act) has finally begun. Certain provisions of the Act came into force on 1 January 2007 with a number of further clauses to follow throughout 2007. It has already attracted immense media focus. It has been heralded as comprehensive legislative means both to strip away outmoded administrative obligations imposed on companies and to protect shareholder rights. It addresses a number of further issues within its 1,300 clauses and its scope is generally regarded as going beyond prior Companies Act legislation.

Freezing orders revisited

The previous article entitled ‘Freezing orders in support of foreign proceedings' drew on a practical example of a recent case in which SJ Berwin had been involved in order to demonstrate the ambit of relief that may be able to be obtained in such an order. Nicola Bridge and the author of the article, Kent Dreadon, acted for the claimants in that matter. Since the article was published, a judgment has been released in respect of the case (Cinar Corp and others v Panju), which establishes an important point of principle that is worth noting.

Outsourcing and injunctions

The recent Commercial Court decision in Vertex Data Science Ltd v Powergen Retail Ltd has given useful guidance on remedies available to parties where termination is threatened of a high-value, complex outsourcing contract. Although the decision dealt specifically with the issue of whether an injunction is appropriate in such circumstances, it also provided a useful point of reference when looking at the effectiveness of the dispute resolution methods envisaged in such contractual relationships.

Freezing orders in support of foreign proceedings

As a result of Business having become increasingly global, large commercial disputes have grown more complex and international, and defendants have far greater opportunities to dissipate their assets to defeat an eventual judgment. An interesting and important aspect of this development is the use of interim relief to help parties resolve such disputes. One important form of interim relief to bear in mind in this context is a freezing order in support of foreign proceedings.

Privilege: a practical guide to the courts’ current approach

This article summarises the current position in relation to the three types of privilege most often encountered in commercial practice: legal advice privilege, litigation privilege and without prejudice privilege. For each type, a short case study is provided, which is based on the author's own experience and highlights some of the issues that can arise.

Investment advice and freezing orders:banks’ duties of care to customers and third parties

The past couple of years or so have been rocky for the banking fraternity. When it comes to deciphering the ambit of their duties to customers and third parties, the courts have not always seemed consistent. Add to that the ever-changing (and increasing) statutory duties imposed on banks, and it is not surprising that business at the Royal Courts of Justice has been brisk.

Entire agreement clauses – a necessary evil?

In several recent cases, judges have acknowledged that the existence of an entire agreement clause may lead to an injustice between the parties, but have nevertheless felt bound by them. This article examines these cases and considers whether it is always desirable, or appropriate, to include entire agreement clauses in contracts.

Freezing assets – a practical guide

Bringing a claim against a defendant without funds is futile. The worst scenario for a claimant who has successfully pursued an action is to discover that the defendant has disposed of all his assets and possesses nothing against which the claimant can enforce his judgment. Before making a claim it is crucial, therefore, to consider whether the defendant has sufficient assets to meet any judgment and, if he does, whether there is any risk that he will dispose of them before the judgment is satisfied.

ADR post-Halsey: recent amendments to the CPR further encourage mediation

The 41st update to the CPR came into force on 6 April 2006. It amended the ‘Practice Direction – Protocols’ and most specific pre-action protocols to further encourage the use of ADR at an early stage.

A little knowledge is a dangerous thing: the demise of warranty claims post Infiniteland Ltd

The recent decision of the Court of Appeal in Infiniteland Ltd and another v Artisan Contracting Ltd and another has important consequences for the way in which share sale and purchase agreements are drafted. From now on, negotiating and documenting the terms of any vendor warranties will be much more time-consuming and complex for all concerned. Even more time-consuming and complex will be the process of documenting the scope of any disclosure to be given by a vendor against those warranties (disclosure here in the sense of qualifying the accuracy or truthfulness of the warranties given by a vendor).

Dishonesty in the assistance of a breach of trust: a state of mind?

A man had been overpaid by a bookmaker. He knew that the bookmaker had made a mistake, and that he was not entitled to the money. But he kept it. The case for the defence was that ?bookmakers are a race apart?. It would be dishonest if your grocer gave you too much change and you kept it, knowing that he had made a mistake. But it was not dishonest in the case of a bookmaker. These were the facts in R v Gilks.

Liability to third parties and clients: are auditors watchdogs or bloodhounds?

Auditors have had an uncertain time over the past year, the high-value claims against KPMG and Ernst & Young being the higher-profile examples of this. Some commentators have even drawn parallels with the demise of Arthur Andersen in the wake of Enron, and spoke of the Big Four accounting firms being reduced to the Big Two.