Litigation Notes

Court of Appeal finds ISDA jurisdiction clause trumps competing clause in related contract

A recent Court of Appeal judgment provides further assurance that jurisdiction clauses within standard form ISDA documentation will not readily be …

When do you have a binding contract? It may be more (or less) often than you think

Court of Appeal finds offer relating to unpleaded counterclaim was valid under Part 36

The Court of Appeal has upheld a decision that a defendant's offer to accept £100,000 in settlement of both the claim and its unpleaded counterclaim was …

Disclosure Pilot: High Court clarifies transitional operation and considers privilege claims

The High Court has confirmed that the Disclosure Pilot operating in the Business and Property Courts since 1 January 2019 applies to all proceedings …

High Court finds parties agreed to vary application of "without prejudice" rule in subsequent "without prejudice save as to costs" correspondence

The High Court has held that correspondence marked "without prejudice save as to costs" and which described the conduct of prior "without prejudice" …

Court of Appeal confirms no claim for third party's loss unless common intention to benefit the third party at the time of contracting

The Court of Appeal has held that, where a buyer wrongly terminated a two year contract, the seller could only claim its own loss of profit and not that …

Court of Appeal confirms test for dishonesty in dishonest assistance claims

The Court of Appeal has held that an accountant member of a multi-disciplinary firm of solicitors was liable as an accessory for dishonestly assisting …

High Court reaffirms orthodoxy in assessing damages for breach of warranty in a share purchase agreement

Upcoming webinar - Litigation update

On Tuesday 30 April (12.30 – 1.30pm UK time), Anna Pertoldi, Maura McIntosh and Jan O’Neill will deliver a webinar for Herbert Smith …

Court of Appeal overturns CAT's refusal to certify the MasterCard collective action claim

The Court of Appeal has overturned the Competition Appeal Tribunal's (CAT) decision refusing certification in MasterCard's £14 billion collective action …

EU guidance on no deal Brexit suggests increased risk Hague Convention on Choice of Court Agreements won't apply to exclusive English jurisdiction clauses agreed pre-Brexit

As we have previously noted, there is some uncertainty over whether, following a no deal Brexit, EU27 countries will apply the 2005 Hague Convention on …

High Court declines to apply so-called Arkin cap to restrict funder's liability for adverse costs

The High Court has found that a commercial funder was liable for all of the defendants' costs incurred in successfully defending a funded claim, from the …