Posts from King & Spalding

Class warriors: UK group actions gain pace

Class or collective actions have not been a prevalent feature of the English legal system and the viability of such actions before the English and Welsh courts has been limited, at least historically. The concept of large group actions conjures up thoughts of Hollywood courtroom dramas or bumper cash payouts following high-profile corporate scandals, which … Continue reading Class warriors: UK group actions gain pace

Lost and profound: court guidance on protecting privilege

In Suppipat and others v Siam Commercial Bank Public Company Ltd and others, it was held that certain documents obtained by the claimants (“Suppipat”) from a third-party Wind Energy Holding Company Limited (“WEH”), pursuant to subpoenas lawfully obtained from the Thai courts, remained privileged and therefore could not be used in the proceedings. In reaching … Continue reading Lost and profound: court guidance on protecting privilege

10 things you (probably) need to know about the new Commercial Court Guide

The 11th edition of the Commercial Court Guide (the Guide) was published on 3 February 2022 and – perhaps unsurprisingly – reflects some of the major changes in disputes prompted by the COVID-19 pandemic. The new framework, the first update since 2017, sharply focuses on the future of litigation, with emphasis on the use of … Continue reading 10 things you (probably) need to know about the new Commercial Court Guide

When a settlement agreement means business: the release of fraud-based claims

The recent decision in Maranello Rosso Ltd v Lohomij BV and others affirms the applicability of the normal principles of construction to the interpretation of contractual releases and, crucially, indicates that the lack of express wording referring to claims based on fraud or dishonesty will not prevent the release of such claims. The wide-ranging and … Continue reading When a settlement agreement means business: the release of fraud-based claims

Keeping a level playing field: High Court throws out technical expert evidence mid-trial

In Dana UK Axle Ltd v Freudenberg FST GmbH, Smith J of the Technology and Construction Court handed down a forceful judgment in which she granted a mid-trial application to exclude the defendant’s technical expert evidence. This decision, albeit arising from a particular set of circumstances, provides a helpful reminder to parties, lawyers and experts … Continue reading Keeping a level playing field: High Court throws out technical expert evidence mid-trial

Key takeaways from London International Disputes Week 2021

London International Disputes Week 2021 (LIDW21), held earlier in May, came at arguably one of the most critical times for dispute resolution in the UK. This year has not only seen the UK officially leave the EU (creating the potential for great divergences in legislation and regulation), but has also seen court hearings shift online … Continue reading Key takeaways from London International Disputes Week 2021

We shall fight on the breaches: GDPR vs class actions

“Data is like garbage; you’d better know what you are going to do with it before you collect it.” This quote is, alas, not a creative warning from a FTSE 100 Data Protection Officer about the risk of collecting data under the General Data Protection Regulation (GDPR). No, the quote is from Mark Twain, who … Continue reading We shall fight on the breaches: GDPR vs class actions

Virtual reality: what have we learnt from online dispute resolution hearings?

It was just over a year ago (on 16 January 2020) that the UK government announced that TV cameras would be allowed to broadcast from Crown Courts in England and Wales for the first time, sweeping aside centuries of legal tradition. At the time, it seemed revolutionary. The Crown Court (Recording and Broadcasting) Order 2020 … Continue reading Virtual reality: what have we learnt from online dispute resolution hearings?

One-way sheet: asymmetric clauses in finance documents post-Brexit

From 1 January 2021, lenders may reconsider whether it is desirable to include in their finance documents “asymmetric” or “one-way” jurisdiction clauses that grant English courts exclusive jurisdiction to decide disputes, subject to the option of the lender to sue the borrower in any other jurisdiction it wishes. Such clauses are widely used in financial … Continue reading One-way sheet: asymmetric clauses in finance documents post-Brexit

Mousavi-Khalkali v Abrishamchi and another: a case study on “substantial injustice” and service out of the jurisdiction

On 12 November 2020, the Court of Appeal handed down its judgment in Mousavi-Khalkali v Abrishamchi and another. At first blush, the court’s judgment is surprising: Phillips LJ (with whom Newey and Floyd LJJ agreed) unanimously held that “it was difficult to see how” the claimant, a British-Iranian national, was subject to a “real risk” … Continue reading Mousavi-Khalkali v Abrishamchi and another: a case study on “substantial injustice” and service out of the jurisdiction

Disclosure Pilot Scheme: practical guidance on the duty of cooperation

In AAH Pharmaceuticals Ltd and another v Jhoots Healthcare Ltd and another, HHJ Worster offered some practical guidance on the duty of cooperation owed by the parties pursuant to the Disclosure Pilot Scheme (DPS).

It’s not me, it’s you: terminating English law contracts

Terminating any relationship can be painful. For contractual parties, an incorrect or even careless termination may result in costly legal consequences. Two recent cases highlight the development around this body of law and serve as an aide-mémoire of the principles underpinning termination under English law: Bains v Arunvill Capital Ltd reminds parties committing remediable breaches, … Continue reading It’s not me, it’s you: terminating English law contracts

To be determined: Empyreal Energy Ltd v Daylighting Power Ltd

In Empyreal Energy Ltd v Daylighting Power Ltd, Stuart-Smith J held that an expert determination was null and void because the dispute had not properly been notified and referred under the contract.

To be (full and) frank, take accusations of material non-disclosure seriously

Without notice applications carry with them a duty on the applicant to provide full and frank disclosure: that is, disclosure to the court of all objectively material facts, including those which it is anticipated would be raised by the other side if it were present (Konamaneni v Rolls Royce Industrial Power (India) Ltd). If the … Continue reading To be (full and) frank, take accusations of material non-disclosure seriously

Pre-action stations: disclosure applications under CPR 31.16

In Taylor Wimpey UK Ltd v Harron Homes Ltd, the applicant (Taylor Wimpey) sought pre-action disclosure against the respondent (Harron Homes) under CPR 31.16.

Nothing to declare? Taking English declaratory relief overseas

In early May 2020, it was reported that the Financial Conduct Authority (FCA) intended to seek and obtain declaratory relief in order “to resolve contractual uncertainty in business interruption insurance cover” in response to the COVID-19 pandemic. The aim, according to the FCA, was to obtain an “authoritative declaratory judgment” that would “resolve some key … Continue reading Nothing to declare? Taking English declaratory relief overseas

Keep your distance? COVID-19 and online dispute resolution

As authorities take unprecedented measures to help control the spread of the 2019 novel coronavirus disease (COVID-19), working from home using online technologies has become an abrupt but necessary fact of life for many. Adaption to disruption is becoming the new normal and the UK courts are no exception.

Once privileged, always privileged… unless and until waived

“I take it that, as a general rule, one may say once privileged always privileged.” This principle, articulated by Sir Nathaniel Lindley MR in the 1898 decision in the case of Calcraft v Guest, is a fundamental aspect of privilege. It is based upon the principle that a client must be free to consult their … Continue reading Once privileged, always privileged… unless and until waived

Is “split” the difference for complex trials? A multi-billion dollar Danish tax fraud case prompts English courts to consider a split trial

In an era of ever-increasing complexity of commercial cases, in particular involving allegations of cross-border fraud, lengthy trials are on the rise. In recent years, one need only point to Berezovsky v Abramovich (16 weeks) and Libyan Investment Authority v Goldman Sacs International (seven weeks), as examples of the phenomenon for ultra-high value claims occupying … Continue reading Is “split” the difference for complex trials? A multi-billion dollar Danish tax fraud case prompts English courts to consider a split trial