Tulips are red, violets are blue: do software developers have fiduciary duties too?
Claims concerning the misappropriation of crypto assets have become an increasingly regular feature of the disputes landscape in the English courts. The recent Court of Appeal decision in Tulip Trading Limited v Bitcoin Association for BSV and others adds to the body of case law on crypto fraud and, notably, represents the first time that the … Continue reading Tulips are red, violets are blue: do software developers have fiduciary duties too?
Cryptoasset fraud poses novel questions on jurisdiction and service of proceedings
The recent judgment in Osbourne v Persons Unknown and another adds to the growing body of English case law on cryptoasset fraud and the willingness of the courts to tackle novel questions posed by such cases. Osbourne sets a precedent as the first judgment to authorise service solely by non-fungible token (NFT). It is also … Continue reading Cryptoasset fraud poses novel questions on jurisdiction and service of proceedings
Court to the rescue? High Court refuses to restrict disclosure following a mistake
In the recent case of Pickett v Balkind, the court refused to grant an injunction to restrain the defendant from using a letter which was mistakenly disclosed in unredacted form and which subsequently called into question an expert’s independence.
Miss Practice Direction 6A at your peril: important reminders about the requirements for valid service
In March 2020, as one judgment memorably put it, the world shifted on its axis. As part of this shift, electronic working came to the fore, driven by necessity and now recognised as a permanent feature of the landscape for users of the English courts. Communication – and service – by email was, of course, … Continue reading Miss Practice Direction 6A at your peril: important reminders about the requirements for valid service
Witness evidence: when are witness summaries permitted instead of witness statements and when should material be struck out from a witness statement?
The libel case brought by Rebekah Vardy against Coleen Rooney has made the headlines following a ‘sting-operation’, in which Mrs Vardy is accused of being responsible for leaking stories to the press about Mrs Rooney’s private life. The recent pre-trial review in Vardy v Rooney serves as a useful reminder that parties cannot simply serve witness … Continue reading Witness evidence: when are witness summaries permitted instead of witness statements and when should material be struck out from a witness statement?
Whodunnit: important reminders about disclosure duties for clients and their lawyers
Two recent decisions of the High Court, in actions involving high-profile parties, shine a spotlight on the duties of both parties and their legal representatives when it comes to disclosure.
Fraudulent misrepresentation and the awareness condition: will the Court of Appeal bring certainty?
One of the key ingredients for a successful claim in fraudulent misrepresentation is the claimant proving that they relied on false representations in entering into a contract. In a recent interlocutory decision in the “NOx” litigation arising from the Volkswagen emissions scandal (Anthony Crossley and others v Volkswagen Aktiengesellschaft and others) the High Court grappled … Continue reading Fraudulent misrepresentation and the awareness condition: will the Court of Appeal bring certainty?
Playing fast and loose with justice: estoppel by conduct
The potential for estoppel to arise based on the conduct of a party in litigation is well established in the law of England and Wales. The courts acknowledge that a party cannot change its position adopted in previous proceedings and then expect the court not to hold that party to its previous conduct.
Be careful what you reference: when witness evidence waives privilege
The extent to which a statement of case or witness statement makes reference to documents, thereby giving rise to a right to inspection by the opponent, is one that often arises in practice. The issue is particularly acute when the document in question is protected by legal professional privilege and the party would otherwise be … Continue reading Be careful what you reference: when witness evidence waives privilege
Weighing in on the importance of attention to detail in service cases
A recent string of judgments have emphasised the need to follow correct procedure when serving documents in court cases, as well as demonstrating the court’s proactive and purposive approach when determining the validity of service.
Adding claimants pre-service and amending outside the limitation period: pitfalls for the unwary
The recent High Court judgment in Various Claimants v G4S plc provides important guidance on the ability of claimants to be added to a claim before service, and on amendments to the descriptions of claimants after service where the relevant limitation period arguably has expired.
Disclosure and documents referenced in expert reports: a level playing field?
It is well-established that parties have the ability to seek specific disclosure of documents not already provided by way of disclosure but mentioned in a statement of case, witness statement or summary, affidavit or an expert report. This is set out in CPR 31.14, and has been preserved in the Disclosure Pilot Scheme (DPS) by … Continue reading Disclosure and documents referenced in expert reports: a level playing field?
“Subject to contract” wording in settlement negotiations: a label that sticks
It is commonplace in commercial transactions for communications to be marked “subject to contract”. The extent to which the label has effect in settlement negotiations was put to the test in Joanne Properties Ltd v Moneything Capital Ltd and another, where the Court of Appeal provided guidance on this, particularly whether agreement that the qualification … Continue reading “Subject to contract” wording in settlement negotiations: a label that sticks
Safeguarding search orders and the role of public interest: lessons to be learned from recent case law
Search orders are one of, if not the most, draconian orders the courts can make. The recent decision in Calor Gas Ltd v Chorley Bottle Gas Ltd and others (Calor Gas) contains two points of particular significance: The extent to which questions of public interest, and in particular public safety, may be factored into the … Continue reading Safeguarding search orders and the role of public interest: lessons to be learned from recent case law
COVID-19: security for costs in an economic downturn
The recent case of International Pipeline Products Ltd v IK UK Ltd and others is an early example of a party seeking to use the economic consequences of the COVID-19 pandemic to support a security for costs application. Given the predictions of a slow recovery and the prospect of litigating in financially uncertain times for … Continue reading COVID-19: security for costs in an economic downturn
Claiming privilege in investigations: whose decision is it?
The recent decision of A v B and another arises in the context of an investigation by a regulator and deals with an important issue of privilege. Regulated service providers and their clients alike should take note of the decision.
A timely reminder for clients not to “self-select” disclosable documents
This time of enforced home working presents various difficulties to those working on contentious matters. How do you conduct remote hearings effectively? How do you interview witnesses effectively? But a timely case reminds all litigation practitioners to take control of the disclosure process and, in particular, not to allow their clients to select the documents … Continue reading A timely reminder for clients not to “self-select” disclosable documents
Judgment in default: better late than never?
Nestled in amongst the recent updates to the Civil Procedure Rules (CPR) is a significant update to the rules regarding default judgments, specifically the conditions to be satisfied before obtaining such judgment.
To disclose or not to disclose: the Ramilos restriction on the courts’ Norwich Pharmacal jurisdiction in aid of foreign bank proceedings
In Ramilos Ltd v Buyanovsky, it was held that the statutory regime of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act) limits the courts’ otherwise inherent jurisdiction to make a Norwich Pharmacal order when it comes to obtaining evidence in aid of foreign proceedings. This restriction, however, is one that in our … Continue reading To disclose or not to disclose: the Ramilos restriction on the courts’ Norwich Pharmacal jurisdiction in aid of foreign bank proceedings
Up, close and personal? Guidance on what constitutes personal service on an individual
Under the Civil Procedure Rules, where the defendant is an individual, the claim form is served personally by “leaving it with that individual”. But what does that mean, particularly in circumstances where the individual refuses to accept the claim form? The recent case of Gorbachev v Guriev provides a useful case study, in which it … Continue reading Up, close and personal? Guidance on what constitutes personal service on an individual
Changes to the CPR for media and communications claims
From 1 October 2019, significant changes to CPR 53 will come into force, establishing the Queen’s Bench Division’s (QBD) Media and Communications List (M&C list), a specialist list of the High Court to deal with claims arising in the area of media and communications. The M&C list was created in May 2017 but had not … Continue reading Changes to the CPR for media and communications claims
Strike out or security for costs as sanction: a question of proportionality
In Alba Exotic Fruit Sh Pk v MSC Mediterranean Shipping Company S.A., the Circuit Commercial Court imposed security for costs as a sanction for a claimant that failed to take any substantive steps in pursuing its case for over four years, instead of ordering that the claim be struck out.
Access all areas? When the “interests of justice” may permit a non-party access to arbitration documents
The extent to which a non-party may obtain access to documents on the court file, and what those documents comprise, has been the subject of recent judicial scrutiny, notably the Court of Appeal’s ruling in Cape Intermediate Holdings Limited v Dring. In The Chartered Institute of Arbitrators v B and others, the High Court was … Continue reading Access all areas? When the “interests of justice” may permit a non-party access to arbitration documents
From warehouse to courthouse: when delay may amount to abuse of process
In Asturion Foundation v Alibrahim the court saved a claimant that allegedly warehoused its claim for over nine months from having its claim struck out. This post considers that decision as well as when delay may amount to an abuse of process; why there wasn’t a delay amounting to abuse in Asturion; and what a … Continue reading From warehouse to courthouse: when delay may amount to abuse of process
It takes three to agree: time extensions and Commercial Court protocol
In Griffin Underwriting Ltd v Varouxakis (Free Goddess), the parties agreed a litigation moratorium following the filing by the defendant of an acknowledgment of service indicating that he intended to contest jurisdiction. At the time of entering the moratorium, the defendant had one day left in which to bring his challenge.
