On Wednesday 13 November 2013 (12.45 – 1.45pm GMT) Ann Levin and Michael Mendelblat will deliver a live audio webinar on expert evidence focusing on:
- Steps needed for giving and obtaining effective expert evidence;
- Sources of guidance; and
- Practical suggestions for liaison between lawyers and experts.
The webinar will look at some of the problems highlighted in decided cases, particularly relating to changing experts and disclosing instructions. The implications of the new costs rules and other changes resulting from the Jackson reforms will also be discussed.
This webinar is part of our series of “Soundbite” webinars, which are designed to update Herbert Smith Freehills LLP clients and contacts on the latest developments without having to leave their desks. The webinar can be accessed “live”, with a facility to send in questions by e-mail, or can be downloaded as a podcast after the event. If you would like to register for a webinar, or to obtain a link to the archived version, please contact Jane Webber. The webinars, both live and archived, also qualify for one CPD point.
The High Court has held that a warranty claim was served on a defendant within the contractual time limit. On its proper construction the relevant clause did not require service to have taken place in accordance with the Civil Procedure Rules (CPR) by the relevant deadline; the claim merely had to be served in the sense of delivered to the defendant: Ageas (UK) Limited v Kwik-Fit (GB) Limited  EWHC 3261 (QB).
The question of what is meant by a contractual requirement to “serve” a claim within a particular period is one that arises surprisingly often. The present decision suggests that, in the absence of clear words to the contrary, actual delivery of the claim will ordinarily be sufficient, even if the claim is not yet formally deemed served under the CPR. However, as with all matters of contractual construction, the decision will turn on the words used in the context of the contract as a whole and the relevant background; the same clause appearing in two different contracts may not have the same meaning.
As a practical matter, a claimant who is up against a contractual (or any other) time bar would be well advised to assume the least favourable interpretation of the relevant service provisions. And of course not to wait until the eleventh hour before serving. Ian Gatt QC and Maura McIntosh consider the decision further below. Continue reading
The Commercial Court has held that the existence of an exclusive jurisdiction clause in favour of the English court does not, when there are proceedings already underway in another EU member state, mean the two sets of proceedings cannot be ‘related’ for the purposes of Article 28(3) of the Brussels Regulation. The English court therefore still has the discretion to stay its proceedings in favour of the court first seised. The jurisdiction clause will however be a very significant factor against the grant of the stay: Nomura International Plc v Banca Monte dei Paschi di Siena Spa  EWHC 3187 (Comm).
Where proceedings before two member states’ courts are the same, the court second seised must stay its proceedings until the jurisdiction of the first court is established and then decline jurisdiction (under Article 27). Where the proceedings are related, there is a discretion whether to stay under Article 28. This case shows that such a discretion exists even where there is an exclusive jurisdiction clause in favour of the second court. It is however very unlikely to be exercised. Continue reading
The Commercial Court recently decided that a contract was formed for the supply of crude oil blend even though some of the core terms were subject to further negotiation: Proton Energy Group SA v Orlen Lietuva  EWHC 2872 (Comm). The decision acts as a reminder that a contract may become binding even though there are still terms to be agreed. Gregg Rowan and Rory Wilson consider the case below. Continue reading
The first edition of our popular guide “Document Retention: An International Review” was published in January 2011, providing guidance on key document retention obligations and data management issues in 22 jurisdictions worldwide. We have now published the second edition, expanded to include 28 jurisdictions.
On Tuesday 5 November 2013 (12.30 – 1.30 GMT) James Farrell, Joseph G Falcone and Nick Pantlin will deliver a live audio webinar to help businesses understand the extensive and sometimes competing issues that arise in this area, including:
- the international legal and regulatory framework
- litigation readiness: e-disclosure and document retention policies
- storing data in the US, US disclosure obligations and the implications of US data requests overseas
- how recent technological advances have increased businesses’ data management options but also their risks. Continue reading
The High Court has interpreted a jurisdiction clause as granting exclusive jurisdiction to the English courts in respect of claims made by a hedge fund. It therefore granted an anti-suit injunction restraining proceedings commenced in New York: BNP Paribas SA v Anchorage Capital Europe LLP and others  EWHC 3073.
The court reached this conclusion despite the absence of the word “exclusive” in the clause in question; the essential question was whether on its proper construction the clause obliged the parties to resort to the jurisdiction of the English courts. A jurisdiction clause will normally be expressed to be ”exclusive” where the parties intend to confer exclusive jurisdiction on a particular country’s courts. This decision shows, however, that the absence of the word need not be determinative. Continue reading
The High Court has granted a second application for relief from sanctions for failure to comply with an unless order, reinstating a defence that had previously been struck out: Thevarajah v Riordan  EWHC 3179 (Ch).
This case highlights the recent tension between the new strict approach heralded by the Jackson reforms, in which courts are to be “less tolerant than hitherto of unjustified delays and breaches of orders”, and the desire to do justice in the individual case and prevent parties exploiting minor errors for tactical gain. Here the judge referred to two recent unreported Commercial Court decisions in which, he said, the court “still had principal regard to the requirement to do justice between the parties” while accepting that the purpose of the reforms is to counter a culture of deliberate delay.
All eyes are on the Court of Appeal, which is due to hear an appeal in the high-profile Mitchell case on 7 November. In that case the court imposed a harsh sanction for the claimant’s failure to file a costs budget on time, and refused to grant relief from that sanction. It is hoped that the Court of Appeal will give some guidance as to where the line should be struck between the competing considerations of procedural compliance and the justice of the individual case. Continue reading
The Court of Appeal overturned an order granting the claimants permission to use, in intended Swiss proceedings, certain documents that had been disclosed by the defendants, where the proceedings had been settled before trial, the documents had not been read to or by the court or referred to at a public hearing, and the defendants did not agree to their use: Alphasteel Limited (in liquidation) v Shirkhani and another  EWCA Civ 1272.
Under the terms of settlement, the claimants had agreed not to pursue any claims or rights against the defendants. On the proper construction of the settlement agreement, this precluded the claimants’ application. The defendants continued to have a limited or defeasible right of confidence in their documents, despite their disclosure in the proceedings. In seeking the court’s permission to use the documents for separate proceedings, in the face of the defendants’ refusal, the claimants were seeking to defeat that right. This amounted to a claim against the defendants.
Although this decision turned on the interpretation of the particular settlement agreement in question, the terms of settlement were not out of the ordinary. The decision therefore suggests that in many cases where the parties have agreed a wide-ranging release and covenant not to sue, this may be taken to preclude an application to use disclosed documents for a collateral purpose. Continue reading
The High Court has held that a claimant had a good arguable case that a contract was made in both England and Texas and that this was sufficient to come within the relevant gateway for seeking permission to serve out of the jurisdiction, namely that the contract was made within the jurisdiction (under Practice Direction 6(B) paragraph 3.1(6)(a)): Conductive Inkjet Technology Ltd v Uni-Pixel Displays Inc  EWHC 2968.
Here the contract had been signed on behalf of the claimant in England and posted to the defendant in the USA, who signed and returned it to the claimant. The court declined to apply the traditional “posting” rule that an offer is accepted (and therefore the contract is formed) where the letter of acceptance is posted.
The irony in this case is that the defendant had refused to accept an English law and jurisdiction clause put forward by the claimant, saying the only alternative to Texas that it would accept was to omit any choice of law or jurisdiction clause. Continue reading