REUTERS | Benoit Tessier
April 6, 2016

One Step too far? Wrotham Park damages after One Step (Support) Ltd v Morris-Garner

Wrotham Park damages (named after Wrotham Park Estate Co v Parkside Homes) are often known as “hypothetical bargain” or “negotiating” damages. Instead of quantifying how much the aggrieved party has lost, or how much the wrongdoer has gained, Wrotham Park damages try to quantify the sum which might reasonably have been negotiated between the parties as a quid pro quo for giving permission to the wrongdoer to act contrary to his or her contractual obligations. They tend to be relied on in cases involving breaches of restrictive covenants, whether in contracts of employment, partnership agreements, contracts of sale, or commercial contracts more generally. Continue reading →

REUTERS |
March 31, 2016

Arbitration, litigation and the growth of the common law

In the recent BAILII Lecture 2016 the Lord Chief Justice (LCJ) called for a rebalancing of the relationship between arbitration and the courts. The LCJ’S primary concern was that the present turning which the law had taken in 1979 and the Nema Guidelines, largely embedded in the Arbitration Act 1996 (AA 1996), had stunted the common law’s growth. Furthermore, the UK had gone too far in favouring the perceived advantages of arbitration as a means of dispute resolution in London over the development of the common law. Due to its confidential nature and the fact that arbitrators are not vested with a state judicial role, the increased use of arbitration in fields such as construction, engineering, shipping, insurance and commodities means that, together with the restrictive conditions on appeals in section 69 AA 1996, such disputes are less commonly considered by the courts. This gives them less opportunity to clarify and develop the law. The LCJ’s concern has been voiced in other quarters as well. However, the proper approach to remedying this is debatable. Continue reading →

REUTERS | Ivan Alvarado
March 30, 2016

Is Pickard v Roberts a harsh application of CPR 39.3?

CPR 39.3 provides that the court can make final and effective orders in the absence of a party to the proceedings. There is no obligation on a party to attend a civil trial. Where a party is represented, their absence may not have any effect at all on the outcome of a hearing. Where the non-attending party is not represented, the consequences of non-attendance are likely to be more severe, and may result in a respectable case being wholly lost. Equally, the authority of the courts must be respected, and not turning up is not like missing a dental appointment. Continue reading →