November/December 2017 #76 – Law Journals

Contract: Making your mind up

Tom Whittaker weighs up the judicial scrutiny of contractual discretion ‘Historically, the court has required only that the relevant decision be made without arbitrariness, capriciousness and irrationality. More recent cases, however, suggest that the court may also require that the decision be reasonable.’ Contracts often confer obligations to make decisions, exercise discretion or form opinions …

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Reputation Management: Lachaux must go on

Adele Ashton and Jeremy Clarke-Williams examine the ‘serious harm’ test in defamation claims ‘Since the Defamation Act came into force, practitioners and judges alike have been wrestling with the question of what amounts to ‘‘serious harm’’ to a claimant’s reputation.’ The reputation of a business can be a crucial factor in its success. With the …

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Insights By Penningtons Manches: Roll with it – contractual interpretation

Clare Arthurs and Nicole Finlayson report on recent citations of Wood v Capita ‘Both these cases illustrate in practice the approach set out in Wood of employing the tools of textualism and contextualism together, seeking a balance between the literal meaning of the words and their context to arrive at the correct interpretation.’ Earlier this …

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Jurisdiction: Banking on it

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In the first of a two-part consideration, Asaf Niemoj assesses conflicting case law on the location of bank accounts to establish jurisdiction under the Brussels Regulation Recast ‘Generally speaking, the Regulation provides that a person domiciled in a member state shall, whatever their nationality, be sued in the courts of that member state (Art 4). …

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ADR: Tough love – an obligation to mediate?

Sapna Garg discusses the recent interim report by the Civil Justice Council Working Group on ADR ‘Perhaps the most significant recent development in this debate is the digital awakening that has occurred in the judicial system and the recent realisation that technology can potentially dispense with a myriad of administrative hurdles prevalent in a non-digitised …

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Disclosure: Forcing change

Jeremy Andrews and Giles Hutt look at the latest proposals for disclosure reform ‘A party can seek to overwhelm its opponent with disclosure, making it more difficult for them to find the few documents that make a real difference to their case.’ Disclosure reform is not new. Lord Woolf attempted it in the 1990s, when …

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Fraud: The whole truth and anything but the truth

Andrew Beck and Gwendoline Davies take an overview of remedies for commercial fraud, deceit and bribery ‘While there may be circumstances in which it is necessary to plead fraud, parties should be mindful of the possibility that other types of claim may deliver the results they are looking for.’ Civil cases of fraud, deceit and …

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