Posts from Gardner Leader

Buyer beware? Misrepresentation in property transactions

The buyer beware principle that applies to land transactions absolves a seller of land and property from a wide range of defects and disrepair. It is, therefore, incumbent upon purchasers to satisfy themselves that the land or property they are purchasing is in the condition they believe it to be in. Misrepresentation is one of … Continue reading Buyer beware? Misrepresentation in property transactions

What is in a name? Is the identity of those communicating with solicitors protected by the rules of litigation privilege?

In Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd, Mr Justice Robin Knowles QC provides a helpful two-part test to clarify whether the identity of those providing instructions to solicitors can be covered by litigation privilege.

The privilege is mine? Court offers guidance on litigation privilege

In Kyla Shipping Co Ltd and another v Freight Trading Ltd and others, Charles Hollander QC (sitting as a deputy judge of the High Court) provides helpful guidance on when litigation privilege applies – and the circumstances in which it may be waived.

Sweet relief: Court of Appeal grants relief from sanctions in the absence of a formal application

CPR 3.8 provides that any sanction arising from a litigant’s failure to comply with a rule, practice direction or court order will have effect “unless the party in default applies for and obtains relief from the sanction”. In Boodia v Yatsyna, the Court of Appeal confirmed that this does not fetter the court’s ability to grant … Continue reading Sweet relief: Court of Appeal grants relief from sanctions in the absence of a formal application

The buck stops where? Relevance of the defendant’s funding arrangements to an application for security for costs

The court may grant an order for security for costs if a two-part test is satisfied. First, at least one of the gateway conditions listed at CPR 25.13(2) must apply. Secondly, it must be just for the court to make the order in all the circumstances of the case (CPR 25.13(1)(a)). In Heathfield International LLC … Continue reading The buck stops where? Relevance of the defendant’s funding arrangements to an application for security for costs

A sense of purpose: UK Supreme Court clarifies SAAMCO principles

The UK Supreme Court (UKSC) has provided welcome clarification on the scope of the duty assumed by a professional adviser. The distinction between information and advice drawn by Lord Hoffmann in South Australia Asset Management Corporation v York Montague Ltd (SAAMCO) has been dispensed with in favour of a more practical examination of the purpose … Continue reading A sense of purpose: UK Supreme Court clarifies SAAMCO principles

The winner takes it all? Court of Appeal overturns “no order as to costs” in favour of “clear winner”

In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123, the Court of Appeal demonstrated the circumstances in which an appellate court will overturn costs decisions made by judges below. Disputes over who is substantially the winner at the end of litigation are not uncommon and judges regularly exercise their discretion, under CPR 44, … Continue reading The winner takes it all? Court of Appeal overturns “no order as to costs” in favour of “clear winner”

Collateral value: use of documents disclosed under the Norwich Pharmacal jurisdiction in other proceedings

Under CPR 31.22, a party to whom a document has been disclosed may only use it for the purpose of the proceedings in which it has been disclosed. There are some limited exceptions to this, the most important (for our purposes) being that the court may grant permission for the disclosure to be used for … Continue reading Collateral value: use of documents disclosed under the Norwich Pharmacal jurisdiction in other proceedings

Jockeying for position: determining forum conveniens

In Traxys Europe SA v Sodexmines Nigeria Limited and Basem El Ali, Teare J provided helpful guidance on how the court will balance the burden of proof and assess the usual competing factors when determining the forum conveniens for a claim. The court also considered how exclusive jurisdiction clauses may apply to a contracting party’s … Continue reading Jockeying for position: determining forum conveniens

A need to engage: recent court rulings remind litigants of the need to explore ADR

Pursuant to CPR 44.2, the court may exercise its discretion to order one party to a claim to pay the costs incurred by another. While the general rule is that “the unsuccessful party will be ordered to pay the costs of the successful party”, the court may depart from this if it so chooses.

Privilege: following recent Court of Appeal decisions, how important is the status of parties when claiming legal professional privilege?

Legal professional privilege (LPP) is once again in the headlines, following a series of recent high profile decisions. In January 2020, the Court of Appeal in Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd rejected an attempt to circumvent LPP by a party that alleged LPP had been waived. Then in February, the … Continue reading Privilege: following recent Court of Appeal decisions, how important is the status of parties when claiming legal professional privilege?

Security for costs: delay isn’t always fatal

A balancing act Under CPR 25.13, the court may grant an order for security for costs if a two part test is satisfied. First, at least one of the gateway conditions listed at CPR 25.13(2) must apply. Secondly, it must be just for the court to make the order in all the circumstances of the … Continue reading Security for costs: delay isn’t always fatal