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Damages: Offside – a new test for penalty clauses

Paul Joukador and Nathan Searle report on a landmark Supreme Court judgment ‘Provided that the relevant contractual provision: (i) serves a legitimate business interest(s); and (ii) is not extravagant, exorbitant or unconscionable, it will not be a penalty and therefore will be enforceable.’ It is common practice to include a clause in a contract which …
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Part 36: Failed overtures

Maura McIntosh explores a recent judicial interpretation of Part 36 ‘The judge rejected the argument that… the references in the rules to “the whole of the claim or to part of it” must include references to a claim which had not been brought when the offer was made but which was subsequently brought.’The High Court …
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Disclosure: Differential discovery

Teresa Rosen Peacocke investigates whether recent rule changes make US discovery more limited than UK disclosure ‘The key to discovery under the new rule will be proportionality, a concept that has been an integral part of UK civil procedure since the introduction of the overriding objectives under the CPR.’Civil litigation procedure has in some important …
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Costs: Budget cuts

David Sawtell summarises recent costs judgments ‘The summary nature of costs budgeting means that the court may either overestimate or underestimate the future expenditure of costs that will reasonably and proportionately be required.’ Costs budgeting is now a familiar part of the litigation landscape. Costs management hearings are supposed to be carried out quickly and …
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Reform: Keep it in proportion

Adam Dyl takes stock of the implementation of costs reforms ‘Litigators are warned that in assessing costs the court will be more persuaded by arguments that you did all you could to deal with the case proficiently, rather than doing what was in the best interest of your client.’ It has been a few years …
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Banking: Show me the money

Daniela Vella examines the new Financial List: a ‘beacon’ for litigants? ‘Having a single judge, with the appropriate background, experience and understanding of complex financial structures, products and markets, dealing with a case from start to finish is a simple yet effective idea.’ In the second half of 2014 a group of judges from the …
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Contract: Bit of an aggregation?

David Niven and Elisabeth Mason look at aggregation clauses and the AIG Europe case ‘AIG’s case was that the claims brought by the 214 investors against TILP arose from “similar acts or omissions in a series of related matters or transactions”… and should therefore be aggregated, with the result of limiting AIG’s liability.’ The High …
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Practice: Old dog – new tricks

Gwendoline Davies and Marshal Ahluwalia look at the lessons to be learned from recent history ‘Utilising the underlying principles from the Khiaban case and thinking very carefully pre-issue as to the financial value of a claim in respect of the amount in dispute could well result in early resolution. Inflated claims are rarely conducive to …
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Abuse Of Process: Trial run

Laura Crawford and Jon Chesman warn against the expedient choice of defendants ‘Even if the claimant considers that the actions are sufficiently different to warrant separate proceedings, the court confirmed that this is a question for the judge to determine when exercising general case management powers.’ On Friday 11 September 2015, in the High Court …
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Arbitration: Déjà vu

Victoria Brooks, Tom Beezer and Hannah Cockerill discuss the recent reinforcement of final orders in arbitration proceedings ‘This case does not make any new law but represents a useful reminder of the important principle that an arbitral award will be final and binding, unless otherwise agreed by the parties.’ A recent case in the Commercial …
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