January/February 2019 #83 – Law Journals

Insights by Penningtons Manches: Out of tune or a new refrain?

Clare Arthurs and Nicole Finlayson catch the beat of non-party costs orders ‘Where a non-party does not simply fund the proceedings but substantially also controls or is to benefit from them, justice will ordinarily require the non-party to pay the successful party’s costs.' Non-party costs orders. Seemingly straightforward words, which in Various Claimants v Giambrone …

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Privilege: A goal in the pipeline

Joseph Sullivan reports on the first televised decision in the Court of Appeal ‘The courts have recognised that there are important policy reasons for permitting parties to obtain advice from their lawyers and to prepare for litigation without fear of those communications subsequently being disclosable to their opponent.’ In the recent case of WH Holding …

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Contracting: Discretion is the better part of valour

Jason Rix examines contractual discretion and absolute contractual rights ‘Where a contract is found to include a contractual discretion, the authorities show it will be subject to an implied term that the person exercising the discretion does so honestly and in good faith, with regard to the contract.’ Freedom of contract is a common term …

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Expert evidence: A not so old master

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Kate Raybould looks at duplicity and art dealers ‘In 2016, the buyer raised doubts about the painting following an inspection by an independent expert. Sotheby’s carried out their own review and concurred that the painting was a forgery.’ Privilege has been through the wringer in recent times, largely coming under attack from disgruntled regulators keen …

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Mistake: Oops!… We did it again

Sapna Garg explores the courts’ approach to rectifying parties’ mistakes when agreeing contract terms ‘It is by no means guaranteed that the court will rectify a contract unless there is compelling evidence of a mistake.’ It is a fact of life that mistakes happen when entering commercial agreements. Time is usually tight. Parties want to …

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Guarantees: Demanding practices

Andy McGregor and Sarah Shaul outline a recent case on guarantees!–more–> ‘The guarantee contained both an unconditional guarantee clause and a separate principal debtor clause; the latter rendered Mr Cohen liable to Barclays for any customer liabilities that could not be recovered from him as guarantor.’ In Barclays Bank plc v Price [2018], Mr Cohen …

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Jurisdiction: Should I stay or should I go?

Stephen Atherton QC and Malcolm Jarvis review a decision on a novel point under the Lugano Convention ‘It will only be in exceptional circumstances that case management considerations will be permitted to prevail over the English court’s lack of jurisdiction in respect of a co-defendant once the claim against the anchor defendant has been dismissed.’ …

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Arbitration: Take your time

Michael Bennett considers extensions of time in arbitration proceedings ‘Haven draws a distinction between negligent omission and mistake when considering time limits for issuing arbitration proceedings.’ Deadlines in legal proceedings are often strict and immoveable. In this respect, arbitration is no different from litigation. So how can you gain more time if you are late? …

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