In a much-anticipated decision concerning the reach of the Alien Tort Claims Act (“ATS“) to foreign actors, the US Supreme Court has concluded that ATS claims alleging a violation of international law “occurring outside the United States” are “barred.” Kiobel v. Royal Dutch Petroleum Co.— U.S. —, No. 10–1491, slip op. at 14 (Apr. 17, 2013). Applying the presumption against extraterritorial application of US laws, a five-justice majority held that foreign nationals could not sue Dutch, British, and Nigerian-based corporations in US federal court based on claims of aiding and abetting human rights violations committed in Nigeria. Thomas Riley and Michael Kelly of our New York office comment on the decision. Continue reading
US Supreme Court decision reduces risk of US claims for violation of international law where no US connection
Filed under Jurisdiction, Tort
High Court decision indicates strict line on revision of costs budgets
The High Court has considered the circumstances in which a costs budget, which has been approved by the court as part of a costs management order, can subsequently be revised or rectified: Murray & anor v Neil Dowlman Architecture Limited [2013] EWHC 872 (TCC).
Although permission to revise the budget was granted on the unusual facts of this case, the decision gives a strong steer that permission to revise a costs budget will not readily be granted in order to correct errors or inadequacies in the budget originally filed. This underlines the importance of getting the budget right first time around.
The decision also illustrates that it will not be sufficient to show that the error caused no prejudice to the opposing party. The judge (Coulson J) commented: “The whole basis of the recent amendments to the CPR [arising from the Jackson reforms] is the emphasis on the need for parties to comply with the CPR, and the court orders made under it. It will, I think, no longer be possible in the ordinary case for parties to avoid the consequences of their own mistakes simply by saying that the other side has not suffered any prejudice as a result.” Continue reading
Filed under Costs
Court of Appeal found agreement to pay instalments excluded right of set-off
The Court of Appeal has held that a settlement agreement, in which the defendant acknowledged that a debt was payable in full and agreed the mechanics and timing of payments, had the effect of excluding the defendant’s right of equitable set-off: IG Index Ltd v Ehrentreu [2013] EWCA Civ 95. The claimant was therefore entitled to summary judgment on the debt. The defendant however remained free to pursue his cross-claim for damages against the claimant.
This decision is surprising in suggesting that a right of set-off may be excluded by implication where an agreement sets out not only the quantum of a liability but also the mechanics of how and when the debt is to be paid. This is contrary to previous authority to the effect that if set-off is to be excluded by contract, clear and unambiguous language is required. Parties who wish to exclude the possibility of set-off would therefore be well-advised to include an express contractual provision to that effect. Equally, where it is intended that there should be a right of set-off, it would seem sensible to say so expressly. Continue reading
Filed under Contract
Commercial Court considers principle that “there is no property in a witness”
The Commercial Court has held that it may be a contempt of court for a party to litigation to seek to prevent a witness or potential witness from attending an interview with the opposing solicitor, and this applies to both witnesses of fact and expert witnesses: Versloot Dredging BV v HDI Gerling Industrie Versicherung AG and others [2013] EWHC 581 (Comm).
The judge (Christopher Clarke J) said that it must be clear to the witness that he or she has a free choice in the matter. Although it is permissible to express a point of view or preference, this must not amount to pressure. Any form of “strong persuasion” should be avoided, as it is liable to be indistinguishable from improper pressure. It is however permissible to raise legitimate concerns about confidentiality and privilege, and to tell the witness that he is not free to reveal that party’s confidential or privileged information to the opposing party. Continue reading
Court of Appeal suggests rethink of prohibition on court-ordered compulsory mediation
The Court of Appeal has suggested that it may be time to review the rule in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 prohibiting a court from ordering unwilling parties to refer their dispute to mediation. Lord Justice Ward has made this suggestion in Wright v Wright [2013] EWCA Civ 234, a dispute between two unrepresented litigants, which he said highlighted the difficulties caused for the judiciary when dealing with litigants in person. He comments that the ”emasculation of legal aid” may have saved expenditure for the Legal Services Commission, but has increased expenditure for the courts. Click here to read more about the case on our ADR blog.
Filed under ADR
Jackson reforms now in force
The long-awaited Jackson reforms have come into force today, 1 April 2013. The reforms will bring about major changes to civil litigation in England and Wales. However, as today is Easter Monday and therefore a bank holiday in England and Wales, most of us will have to wait at least one more day before we see any impact in practice.
Click here (or on “Jackson reforms” in the top menu) to go to our Jackson reforms home page where you can access our ”Handy client guide”, which summarises on two sides of A4 the key changes and their implications for commercial clients, as well as pages containing more detailed information on the reforms.
Court of Appeal finds contract which left matters to be agreed not unenforceable for uncertainty
The Court of Appeal has recently held that a contract for the sale of goods which left matters, including certain charges and a shipping schedule, to be agreed was not unenforceable for uncertainty because it was to be viewed in its wider context: MRI Trading AG v Erdenet Mining Corporation LLC [2013] EWCA Civ 156. The court was prepared to imply a term requiring such charges / schedule to be reasonable.
This decision may be welcomed by commercial parties who are reluctant to commit themselves to a rigid long-term arrangement and may therefore attempt to introduce an element of flexibility by providing that certain terms are to be agreed later. However, each case will turn on its own facts and, for a binding contract to exist, the court must be satisfied that all essential terms have been agreed or are capable of being determined in the absence of future agreement. Parties looking to incorporate some element of flexibility whilst ensuring that their contract is enforceable would be well advised to lay down in their contract clear criteria or machinery for determining matters which are left open.
Gary Milner-Moore and Joanne Keillor comment on the decision below. Continue reading
Filed under Contract
Our new Guide to Dispute Resolution in Africa
On 19 March, at a cross-practice seminar in London attended by over 150 delegates from a range of industries and sectors, Herbert Smith Freehills launched its groundbreaking guide to dispute resolution in all 54 of Africa’s diverse jurisdictions. In producing this guide, we have drawn on the combined knowledge and experience of lawyers from our leading Africa practice in both our London and Paris offices, as well as qualified and experienced local counsel in each of the jurisdictions covered.
Whether you want to know the basics of the legal system, details on litigation and arbitration procedures, if Alternative Dispute Resolution (ADR) is embraced in a particular country, or what the applicable limitation periods or privilege rules are, this publication will help you. It is a first port of call, not just for those facing international disputes, but anyone who is considering investing in unfamiliar territory who would like a better understanding of the legal system of that country.
The guide has been published ahead of the planned launch of our office in Conakry, Guinea, which will be the firm’s first on-the-ground presence on the continent. To access an extract of the guide please click here. If you would like to request a copy please email africadisputes@hsf.com.
Filed under Miscellaneous
UK Supreme Court: court can change decision without “exceptional circumstances”
In a recent decision, the Supreme Court has clarified the circumstances in which a judge who has announced his or her decision is entitled to change that decision before the order is sealed: In the matter of L and B (Children) [2013] UKSC 8. Although the issue arose in the context of care proceedings in the family court, the same principles will apply to civil proceedings.
The Supreme Court noted that it has long been the law that a court is entitled to reverse its decision at any time before the order is drawn up and perfected (i.e. sealed by the court). This is sometimes referred to as the Barrell jurisdiction, after the Court of Appeal decision in In re Barrell Enterprises [1973] 1 WLR 19 which is generally seen to have laid down a restriction that (apart from the correction of minor errors or slips) the jurisdiction should only be exercised in exceptional circumstances.
In the present case, the Supreme Court held that there is no such restriction upon the court’s jurisdiction to revisit its own decision before the order is sealed. In deciding whether to exercise the power, the court’s overriding objective must be to deal with the case justly. It will be relevant whether any party has acted upon the decision to its detriment, especially if it was expected that they might do so before the order was sealed. Every case is going to depend upon its particular circumstances and, the court said, ”a carefully considered change of mind can be sufficient”. Nonetheless, we would not expect judges to take such a decision lightly.
Filed under Appeals, Judgments/Orders
Court of Appeal confirms Norwich Pharmacal orders cannot be used to obtain evidence for foreign proceedings
The Court of Appeal has confirmed that the English courts do not have jurisdiction to make a Norwich Pharmacal order that evidence be produced for use in foreign criminal proceedings: R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] EWCA Civ 118. Rather, the regime by which a third party can be ordered to provide evidence for use in foreign proceedings is exclusively statutory. This broadly confirms the first instance decision on which we commented here and raises questions as to whether a similar approach would be adopted in relation to civil proceedings governed by the Hague Evidence Convention and the Evidence (Proceedings in Other Jurisdictions) Act 1975. Russell Hopkins and Charlie Morgan comment on the most recent decision. Continue reading
Filed under Disclosure, Evidence, Judgments/Orders
