September/October 2018 #81 – Law Journals

Contract: Talk is cheap

Rachel Lidgate and Maura McIntosh discuss a case on variations after a no oral modification clause ‘The law should and does give effect to contractual provisions requiring specified formalities to be observed for a variation, such as NOM clauses.’ In Rock Advertising Ltd v MBB Business Exchange Centres Ltd [2018] the Supreme Court has overturned …

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Remedies: One small step

Gwendoline Davies explores Supreme Court case law on contractual damages ‘It is necessary for the court to consider post-breach events known at the assessment of damages if they are relevant to and affect the claimant’s loss.’ Commercial parties are generally aware that a breach of contract gives rise, in the majority of cases, to a …

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Privilege: Don’t quote me on this

Richard Farnhill concludes his examination of privilege and considers if the system is fit for purpose ‘The recent privilege decisions are inconsistent with, and indeed have not considered, the substantive rules on attribution. In the absence of any proper distinction, those rules are binding and the recent privilege decisions are therefore incorrect.’ The first two …

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Insights by Penningtons Manches: A comprehensive reshuffle

Clare Arthurs and Nicole Finlayson report on the disclosure pilot scheme ‘Few litigators or indeed litigants would disagree that disclosure has been ripe, if not crying out, for an overhaul.’ Let’s call a spade a spade: disclosure in the UK litigation process has got increasingly out of hand. The exponential growth in electronic documents in …

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Liability: A conclusion for exclusion?

Nick Lees explains key cases on exclusion clauses and offers some practical advice ‘UCTA provides, in short, that any attempt to exclude or restrict liability for death or personal injury is void and that any attempt to exclude or restrict liability for other loss is subject to the “reasonableness test”.’ The ability to pre-emptively exclude …

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Disclosure: It’s a privilege

Julian Copeman, Anna Pertoldi and Maura McIntosh review a significant Court of Appeal judgment ‘In the Court of Appeal’s view, the whole subtext of the relationship between ENRC and the SFO was the possibility, if not the likelihood, of prosecution if the self-reporting process did not result in a settlement.’ On 5 September 2018 the …

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Negligent misstatement: Bouncing bunnies

Andrew Burnette looks at liability and the unknown: can the provider of a reference be responsible if it doesn’t know who will rely on it? ‘Taking into consideration the principles set out in both Hedley Byrne and Caparo, the Supreme Court found that in the circumstances of the Playboy case it simply was not possible …

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Part 36: On the hoof

Oliver Middleton summarises a recent case of dishonesty and offers to settle ‘At first instance, the judge was asked to determine if the claimant’s alleged dishonest conduct rendered the usual cost consequences “unjust”, and should therefore be disapplied.’ In the recent case of Tuson v Murphy [2018], the Court of Appeal has overturned a decision …

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