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Press releases and law firm thought leadership

This page is dedicated to keeping readers informed of the latest news and thought leadership articles from law firms across the globe.

If your firm wishes to publish press releases or articles, please contact Shehab Khurshid on +44 (0) 207 396 5689 or shehab.khurshid@legalease.co.uk

 

Legal Developments Worldwide

Articles contributed by Macfarlanes

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Finding the 
right words

January 2014 - Litigation & Dispute Resolution. Legal Developments by Macfarlanes.

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In the recent case of Newbury v Sun Microsystems [2013], the defendant argued that an offer to settle proceedings was ‚Äėin 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 ‚Äėrecorded in a suitably worded agreement'. ‚Ä©

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 ‚Äėnegative' 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 ‚Äėsubject to contract'.‚Ä©

Behind the corporate veil: is that all there is?

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

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

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. ‚Ä©

Silence is not always golden

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

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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. ‚Ä©

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.‚Ä©

You can’t always get what you want

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

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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 ‚Äėopen justice'; it also addresses the steps which a party to a dispute can take to keep those documents confidential.‚Ä©

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).‚Ä©

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.‚Ä©

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.‚Ä©

There‚Äôs a new sheriff in town: the Jackson reforms and the new culture of ‚Äėrobust‚Äô case manage

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

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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:‚Ä©

‚Äė‚Ķ 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.‚Äô‚Ä©

Are you obliged to 
act reasonably?

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

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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 ‚ÄėProduct Star') [1993], Leggatt LJ said that ‚Äėwhere 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. ‚Ä© 

Revisiting Bartoline

May 2013 - Public Law. Legal Developments by Macfarlanes.

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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 decision in Bartoline v Royal Sun Alliance [2006] has some commentators arguing that the door has effectively been shut on recovering environmental liabilities under public liability (PL) policies. This article examines whether this is true; it looks at the legal principles in Bartoline, its impact on the environmental insurance market and the likely future of the PL insurance market in the UK.‚Ä©

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


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

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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. ‚Ä©

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

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

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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.‚Ä©

Absence of assets: no bar to worldwide freezing order jurisdiction

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

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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

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

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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].‚Ä©

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

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

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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...

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

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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?

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

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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 ‚Äėinteresting issues of law‚Äô that he needed to decide, namely:‚Ä©