News
26 July 2010
Government Announces Position on Jackson Report
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly) announced the Government's intention to consult in the autumn on implementing Lord Justice Jackson's recommendations.
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13 July 2010
Confidentiality Rules Revised
Rule 4.05 of the Solicitors Code of Conduct 2007 has been revised so that solicitors can (subject to exceptions and safeguards) take on work which, from inception, can be seen to raise a conflict between a duty of confidentiality to client A and a duty of candour to client B.
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1 July 2010
Failure to Apply Foreign Law
A challenge to an arbitration award under ss 67 and 68 of the Arbitration Act 1996 on the ground that the tribunal did not apply Spanish law failed. In order to succeed, the applicant had to demonstrate conscious disregard of the governing law, which is an allegation of impropriety and applicant eschewed that allegation.
B v A [2010] EWHC 1626 (Comm)25 June 2010
Revised UNCITRAL Arbitration Rules
The revised UNCITRAL Arbitration Rules will be effective on 15 August 2010.
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23 June 2010
West Tankers - EU Committee Position
The European Parliament's Committee on Legal Affairs endorsed the report of its rapporteur recommending the retention of the arbitration exception in the Brussels I Regulation and that "not only arbitration proceedings, but also judicial procedures ruling on the validity or extent of arbitral competence as a principal issue or as an incidental or preliminary question, are excluded from the scope of the Regulation" and that a judgment should not be recognised if the court "disregarded a rule of the law of arbitration in the Member State in which enforcement is sought".
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22 June 2010
Arbitrators' Religion Qualification Unlawful
A requirement in an arbitration clause in a commercial contract that the arbitrators should all be members of a specified religious community breached the Employment Equality (Religion and Belief) Regulations 2003 and did not fall within the "genuine occupational requirement" exception since the task was to decide according to law and not ex aequo et bono.
Jivraj v Hashwani (Rev 2) [2010] EWCA Civ 71216 June 2010
Costs on Discontinuance
Normally a claimant discontinuing a claim will have to pay the defendant's costs. But here, the claim against tax advisors for negligently advising the claimant to enter into an arrangement incurring a heavy tax liability became academic when the revenue unexpectedly decided not to pursue the tax. Norris J ordered the defendants to pay the bulk of the claimant's costs.
Dhillon v Siddiqui [2010] EWHC 1400 (Ch)12 June 2010
Mediator Honoured
Dr Karl Mackie, leading mediator and Chief Executive of CEDR, was awarded the CBE in the Queen's Birthday Honours list.
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11 June 2010
Transaction Set-off Test
The Court of Appeal considered the authorities on transaction set-off in the context of separate contracts and preferred the test "cross-claims ... so closely connected with [the claimant's] demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross-claim" (para [43])
Geldof Metaalconstructie NV v Simon Carves Ltd [2010] EWCA Civ 6674 June 2010
Civil Mediation Council Money Laundering Advice
The CMC has issued a guidance note (largely endorsing earlier guidance issued by the Chartered Institute of Arbitrators) on the circumstances in which a mediator may be obliged to report suspected money laundering.
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21 May 2010
Complex Structure Theory Revisited
Akenhead J. sitting in the Technology & Construction Court reviewed the leading authorities on the complex structure theory and decided that summary judgment should not be granted on assumed facts and because this is a developing field of law.
Linklaters Business Services (Formerly Hackwood Services Company) v Sir Robert McaLpine Ltd [2010] EWHC 1145 (TCC)21 May 2010
Court First Seized
Where (i) the German Court was seized with a claim for a negative declaration, (ii) the English Court was then seized of claims and then (iii) the applicant in the German proceedings made "a de facto amendment" to their pleading raising a matter before the English court. It was held that the English Court was first seized for the purposes of Arts 28 and 30 of the Brussels Regulation.
FKI Engineering Ltd v Stribog Ltd [2010] EWHC 1160 (Comm)20 May 2010
Anti-deprivation Principle
The principle in British Eagle International Air Lines Limited v Compagnie Nationale Air France [1975] 1 WLR 758 was applied to strike down a termination clause in a valuable commercial contract which purported automatically to terminate in the event of the liquidation or administration of a party.
Mayhew v King & Ors [2010] EWHC 1121 (Ch)4 May 2010
Inter-relationship between Brussels Regulation and CMR
Where the Convention on the Contract for the International Carriage of Goods by Road contained lis alibi pendens provisions, those provisions applied instead of the equivalent provision of the Brussels Regulation.
C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] EUECJ C-533/0829 April 2010
Advocate General's Opinion in Akzo Nobel Case
The Advocate General has advised the European Court of Justice that legal advice from in-house lawyers should not attract legal professional privilege.
Case C-550/07 P Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission28 April 2010
Whether German Court has Exclusive Jurisdiction in Credit Swap Case
The banks brought proceedings in the English Courts claiming sums due under credit swap arrangements pursuant to an exclusive jurisdiction clause. The German counterparty claimed that the German Courts had exclusive jurisdiction under Art 22 of the Brussels Regulation on the ground that the proceedings had " ...as their object ... the validity of the decisions" of the organs of a legal person, BVG. The Court of Appeal rejected the contention because this was not the principal concern of the proceedings.
Berliner Verkehrsbetriebe (BVG) Anstalt Des Offentlichen Rechts v JP Morgan Chase Bank N.A. [2010] EWCA Civ 39016 April 2010
Anti-suit injunction restrains breach of arbitration agreement
The Commercial Court granted an anti-suit injunction to restrain a breach of an arbitration agreement even though the applicant had not commenced the arbitration.
AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2010] EWHC 772 (Comm)1 April 2010
New Higher Rights Regulations
The Solicitors' Higher Rights of Audience Regulations 2010 came into force, replacing the Higher Courts Qualification Regulations 2000 and abolishing (subject to transitional arrangements) the routes to higher rights established by the earlier regime.
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1 April 2010
Court of Appeal Reverses Singh Ruling
The Court of Appeal has reversed the ruling by Eady J to the effect that the allegation made by Dr Simon Singh against the British Chiropractic Association was factual (therefore putting on Singh the burden of proving its truth) and held that it was comment (thereby requiring him merely to prove good faith).
British Chiropractic Association v Singh [2010] EWCA Civ 35026 March 2010
Mediation in SeaWorld Tragedy Case
A court-ordered mediation will take place to resolve the question whether video footage of the death of Dawn Brancheau should be made public. The trainer was killed by an Orca after being pulled into the tank by her pony tail and her family are opposing the publication of the video.
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25 March 2010
No Renvoi in Title to Movables
When applying the lex situs rule, the court should apply the domestic law of that place and ignore its conflict of laws rules.
Blue Sky One Ltd v Mahan Air [2010] EWHC 631 (Comm)18 March 2010
Transfield v Mercator - What was decided?
Mr Justice Hamblen looked closely at the 5 speeches in Transfield Shipping Inc v Mercator Shipping Inc [2008] UKHL 48 HL and attempted to identify the ratio.
Sylvia Shipping Co Ltd v Progress Bulk Carriers Ltd [2010] EWHC 542 (Comm)10 March 2010
Effect of Alleged Fraudulent Evidence
Where it is suggested, after judgment, that the claimant's case was fraudulent, the appeal court may set aside the judgment and order a retrial if the fraud is admitted or undeniable. Otherwise, the question of fraud will have to be decided first, either by a reference back to the court below or at a fresh trial.
Owens v Noble [2010] EWCA Civ 22410 March 2010
Supreme Court Decides Existence of Contract Case
The Supreme Court considered the question whether a contract should be taken to have come into existence where the parties had commenced work and whether there was a conflict between two important authorities: G Percy Trentham Ltd v Archital Luxfer Ltd [1993] 1 Lloyd's Rep 25, Steyn LJ and British Steel Corporation v Cleveland Bridge and Engineering Co Ltd [1984] 1 All ER 504, Robert Goff J
RTS Flexible Systems Ltd v Molkerei Alois Muller Gmbh & Company KG (UK Production) [2010] UKSC 1423 February 2010
Solicitor entitled to terminate retainer
A solicitor is entitled to terminate a retainer (and to be paid even though it is an entire contract) where the client insists that the solicitor advances a hopeless case.
Richard Buxton (Solicitors) v Mills-Owens & Anor [2010] EWCA Civ 12216 February 2010
First English decision on Rome 2 Regulation
In the first reported English decision on the Rome 2 Regulation, Owen J decided that where an English claimant was injured by an uninsured driver in Spain and brought a claim against the Motor Insurers Bureau under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation body) Regulations 2003, the normal choice of law rule in Art 4(1) applied on the basis that the tortfeasor was the uninsured driver. The non-payment by the MIB was not the material event.
Jacobs v Motor Insurers Bureau [2010] EWHC 231 (QB)15 February 2010
ICC International Mediation Competition
The Nottingham Law School Team won the 5th ICC International Commercial Mediation Competition.
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29 January 2010
Super Injunction discharged
The super injunction obtained by John Terry was discharged by Mr Justice Tugendhat on the ground that it was not necessary or proportionate having regard to the gravity of the interference with Terry's private life.
Terry v Persons Unknown (Rev 1) [2010] EWHC 119 (QB)21 January 2010
Civil immunity of expert witnesses in doubt
Blake J has given a certificate for a leapfrog appeal to the House of Lords to challenge the rule that expert witnesses enjoy immunity from suit.
Jones v Kaney [2010] EWHC 61 (QB)19 January 2010
Consultation on defamation costs
The Lord Chancellor's proposal to reduce the maximum success fee which may be charged in defamation proceedings funded under Conditional Fee Agreements from 100% to 10% of base costs has been put out to consultation. The closing date is 16 February.
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14 January 2010
Jackson Report published
Lord Justice Jackson's report on the costs of litigation has now been published. It contains far reaching proposals for reform in a number of areas such as conditional fees and Part 36.
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11 January 2010
Mediation expert appointed to United Nations
Professor Christie S. Warren, Professor of the Practice of International and Comparative Law at William & Mary Law School, Williamsburg, has been appointed Senior Mediation Expert in Constitutional Issues for the United Nations.
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6 January 2010
Practice Directions to be renamed
The Ministry of Justice has announced that all CPR practice directions are to be renamed with effect from 1 April 2010. Instead of the current format "Practice Direction to Rule X", they will be named "Practice Direction X"
1 January 2010
Lugano Convention Amendments
The Civil Jurisdiction and Judgments Regulations 2009 give effect to the revised Lugano Convention and take effect today.
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28 December 2009
Mediation a Top 50 Career
US News declares that mediation is a top 50 career for 2010.
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17 December 2009
West Tankers applied in Court of Appeal
A consignee claimed damages in Spanish proceedings and the owner sought a declaration in English proceedings to the effect that there was a binding arbitration agreement. The Court of Appeal held that the ECJ ruling in Allianz v West Tankers Inc [2009] 1 AC 1138; [2009] 3 WLR 696 ECJ meant that the English court could not decline to recognise the judgment of the Spanish court on the arbitration exception ground.
National Navigation Co v Endesa Generacion SA [2009] EWCA Civ 139717 December 2009
Rome 1 Regulation in force
The Rome 1 Regulation (Regulation (EC) No 593/2008), which determines the law governing contracts in all EU countries bar Denmark, applies to contracts enetered into on and after 17 December 2009.
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16 December 2009
No witness immunity for exhibits
Assuming the defendant's employees had fabricated data which was then exhibited to witness statements, the rule which gave witnesses immunity from civil action in relation to material in witness statements had no application.
Accident Exchange Ltd v Autofocus Ltd [2009] EWHC 3304 (QB)15 December 2009
Canada Steamship Guidelines applied by Court of Appeal
A plant hire company had the benefit of a broadly worded indemnity from the hirer. Where the plant hire company incurred a liability to its own employee through its own negligence, the indemnity should not be construed as covering these circumstances. No mention of Investors Compensation Scheme.
Jose v MacSalvors Plant Hire Ltd [2009] EWCA Civ 13299 December 2009
Civil Mediation Council identifies its role
The CMC has published its interim report on the results of its survey on its future role.
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8 December 2009
Los Angeles Mediator Dies of Gunshot
Jeffrey Tidus, an attorney with Baute & Tidus and a practising mediator and arbitrator was killed by a single gunshot outside his Los Angeles home.
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3 December 2009
Prime minister becomes professor of mediation
The National University of Ireland at Maynooth has caused controversy by appointing former Taoiseach Bertie Ahern as visiting professor in mediation and conflict studies in recognition of his mediation skills.
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1 December 2009
Court declines to decide Goshawk point
A controversial issue following the ECJ decision in Owusu v Jackson is whether the English court is entitled to stay proceedings against an English defendant where there is an exclusive jursidcition clause conferring jurisdiction on a non-member state. As this question has been referred to the ECJ by the Supreme Court of Ireland in Goshawk Dedicated Receivables Ltd v Life Receivables (Ireland) Ltd Burton J decided that it would be wrong for him to determine it.
Deutsche Bank Ag v Sebastian Holdings Inc [2009] EWHC 3069 (Comm)26 November 2009
Examination of gain based damages by Privy Council
The Privy Council has reviewed the principles of assessment of gain based damages
Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2009] UKPC 4524 November 2009
Three Legged Monkey Mediation
A mediation is to take place in El Paso to resolve anti-social behaviour disputes between the owner of the Three Legged Monkey and local residents.
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24 November 2009
Law governing question of ostensible authority
The law which governs the question whether a person has ostensible authority to bind another to a contract is the putative governing law of the contract - i.e. the law which would govern the contract if it was valid.
Rimpacific Navigation Inc v Daehan Shipbuilding Co Ltd (Rev 1) [2009] EWHC 2941 (Comm)19 November 2009
Offer and Acceptance Analysis
Despite Lord Denning's comments in Butler Machine Tool Company Ltd v Ex-cell-O Corporation [1979] 1 WLR 401 CA, it was appropriate to apply traditional offer and acceptance analysis in battle of the form cases.
Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 120918 November 2009
Closed material procedure in civil claim
Silber J decided that it can be lawful and proper for a court to order that a closed material procedure can be adopted in a civil claim for damages.
Al Rawi v The Security Service [2009] EWHC 2959 (QB)17 November 2009
Mediator biting woman in plea agreement
The woman who bit the court appointed mediator was ordered to pay medical bills and to attend anger management counselling.
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16 November 2009
Whether lawyers' markings conferred privilege
The fact that some copy documents had lawyers' markings on them did not mean that the whole set of marked and unmarked documents were privileged as betraying the lawyers' thought process by selection. If the marked copies were privileged, it was because of the content of the markings.
Imerman v Tchenguiz [2009] EWHC 2902 (QB)12 November 2009
Does money paid by mistake give rise to a constructive trust?
Discussion at para [49] of the controversial question whether (and at what point in time) a payment of money by mistake can give rise to a constructive trust.
Fitzalan-Howard (Norfolk) v Hibbert [2009] EWHC 285511 November 2009
Power to stay action based on Art 22 Brussels Regulation
Proceedings against an English registered company and Indian defendants raised issues concerning the validity of an agreement allegedly entered into by the company. The Court of Appeal ruled that "regardless of domicile" in Art 22 did not include defendants domiciled outside the EC.
Choudhary v Bhatter [2009] EWCA Civ 51011 November 2009
Mediation Confidentiality tested by Larry King
Veteran US TV host Larry King so angered one of his guests by probing for the reasons why she settled a dispute in mediation that she removed her microphone and refused to participate in the show. See a clip of the encounter.
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9 November 2009
"Getting to Yes" in Iraq
Mediators recently trained in problem solving negotiation techniques have successfully mediated tribal disputes in Iraq.
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7 November 2009
Ugandan Commercial Court mediation scheme
The Commercial Court in Uganda has implemented a mediation scheme by which every case must be mediated.
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30 October 2009
Mandatory EU law and arbitration
There is a good arguable case for saying that an arbitration tribunal appointed under a contract subject to Canadian law was incompetent to rule that a mandatory EU law had no application to the parties in consequence of their choice of law.
Accentuate Ltd v Asigra Inc [2009] EWHC 2655 (QB)29 October 2009
Payment made in doubt is not payment made by mistake
A payer of money was not entitled to restitution where they were in doubt as to legal liability as distinct from making a mistake as to liability
Marine Trade SA v Pioneer Freight Futures Co Ltd BVI [2009] EWHC 2656 (Comm)28 October 2009
Higher rights of audience for solicitors
The Solicitors Regulation Authority has submitted its proposals for the reform of the solicitors' higher rights regime to the Ministry of Justice.
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21 October 2009
Reform of super-injunctions law after commons debate
Justice minister Bridget Prentice promised consultation over reform of the law concerning super-injunctions following the commons debate.
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20 October 2009
Probability of success and CFA uplifts
There is a logical inconsistency between an appellant saying on the one hand that an appeal has "a good prospect of success" in applying for permission to appeal and on the other hand that the appeal was risky enough to justify a 100% success uplift in a conditional fee agreement. The Master of the Rolls reduced the uplift from 100% to 60%.
Grant v Bragg [2009] EWCA Civ 1228 (Costs)15 October 2009
Lawyers' tax advice could lose privilege
Charles J suggests that in tax areas in which both accountants and lawyers give advice, the lawyers' advice could lose its privileged status rather than accountants' advice gaining it.
Prudential Plc v Revenue & Customs Commissioners [2009] EWHC 2494 (Admin) Click
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10 October 2009
Mediation on the run
A teenager on the run from her Muslim family after her conversion to Christianity has taken part in a judge ordered mediation.
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8 October 2009
Bank deprived of costs for failing to give adequate disclosure
A bank which failed to give adequate electronic disclosure of documents did not have adverse inferences drawn against it, but did fail to recover all of its costs.
Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile)6 October 2009
Is the Qualifying Law Degree fit for purpose?
Law Society Consultation - Closes 29 October.
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5 October 2009
Supreme Court
The first sitting of the new Supreme Court opens.
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3 October 2009
Action, not mediation
A local resident plagued by yobbish behaviour criticised police for offering to mediate between himself and his tormentors.
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2 October 2009
Injunction served by Twitter
An injunction to restrain an unknown person from using the name of blogger Donal Blaney was served by Twitter.
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1 October 2009
CPR 50th Update
The 50th Update to the Civil Procedure Rules introduces changes in a large number of areas.
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