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Articles by Anna Pertoldi
Employment Appeal Tribunal considers when privilege applies to communications via an agent and to documents evidencing legal advice
A recent Employment Appeal Tribunal decision contains an interesting discussion of some difficult issues relating to legal professional privilege: Moving Brands Ltd v Heinl [2023] EAT 34. The decision relates to communications between a solicitor (instructed on behalf of an individual client) and a third party, some but not all of which were copied to the client.
High Court underlines need to consider scope of agency in considering whether documents to which agent has access are in principal’s control
In a recent decision, the High Court has held that the documents of a claimant’s creditor were not in the claimant’s control for the purposes of disclosure. Although two employees of the creditor acted as the claimant’s agent in conducting the litigation, that did not mean that all the documents to which they had access in their capacity as the creditor’s employees were in the claimant’s control: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 548 (Comm).
Part 36 offer to settle “the whole of the claim” did not include claims set out in draft amended pleadings
In a recent Court of Appeal decision, a defendant’s Part 36 offer to settle “the whole of the claim” (which the claimant had accepted) was construed as relating only to the pleaded claims and not the additional claims set out in the claimant’s draft amended particulars of claim.
Court of Appeal finds disclosure to party’s US lawyers breached embargo on draft judgment, but no further steps taken
The Court of Appeal has held that, where a judgment was provided in draft to parties and their legal representatives under embargo in advance of being handed down in public, neither the judgment nor the outcome could be disclosed to foreign lawyers, even though they had been involved to some extent in the proceedings. Such disclosure was a breach of the embargo, potentially punishable by contempt proceedings: InterDigital Technology Corporation v Lenovo Group Ltd [2023] EWCA Civ 57.
Commercial litigation podcast series - Episode 17: General update
Click here to listen to the audio In this 17th episode of our series of commercial litigation update podcasts, we consider recent cases on waiver of privilege, developments relating to disclosure, judgments and enforcement, and two recent Court of Appeal decisions on limitation and settlement respectively.
Anti-suit Injunction Granted Restraining Proceedings In An EU Member State
The Commercial Court has granted an anti-suit injunction restraining Belgian proceedings brought in breach of an exclusive English jurisdiction clause: Ebury Partners Belgium SA/NV v Technical Touch BV, Jan Berthels [2022] EWHC 2927 (Comm). This appears to be one of the first cases post-Brexit in which an anti-suit injunction has been granted by an English court restraining proceedings in an EU member state.
Commercial Litigation Podcast Series – Episode 16: General Update (Podcast) - Trials & Appeals & Compensation - UK
In this 16th episode of our series of commercial litigation update podcasts, we look at a couple of recent decisions relating to privilege, two interesting Court of Appeal decisions on good faith and force majeure respectively, and finally we discuss the recent Supreme Court decision in the BTI v Sequana case, which clarifies when directors owe obligations to consider the interests of creditors.
Enforcement of Foreign Judgments Comparative Guide - - UK
1 Legal and judicial framework 1.1 Which legislative and regulatory provisions govern the recognition and enforcement of foreign judgments in your jurisdiction? In England and Wales, a range of rules govern the recognition and enforcement of foreign judgments. Which rules apply will depend on where and when the foreign judgment was obtained.
High Court Declines To Impose Disclosure Conditions On Party Wishing To Replace Expert As No
In a recent case the High Court has considered its discretion to require disclosure of documents relating to a previous expert's views when granting a party permission to adduce evidence from a new expert: The University of Manchester v John McAslan & Partners Ltd [2022] EWHC 2750.
Supreme Court Finds Civil Liability (Contribution) Act 1978 Applies Only Where Contribution Claim Governed By English Law
The Supreme Court has held that the Civil Liability (Contribution) Act 1978 does not have overriding effect and therefore applies only where domestic conflict of laws rules indicate that the contribution claim in question is governed by English law: The Soldiers, Sailors, Airmen and Families Association – Forces Help v Allgemeines Krankenhaus Viersen GmbH [2022] UKSC 29. In doing so, the Supreme Court disagreed with the conclusion reached by the Court of Appeal and the High Court.
Competition Appeal Tribunal Considers When There Is A Dispute Sufficient To Give Rise To Without Prejudice Privilege
In a recent decision, the Competition Appeal Tribunal (CAT) held that an email was protected by without prejudice privilege, where it sought to resolve a dispute about interpretation of a contractual indemnity as well as various commercial issues: Sportradar AG v Football Dataco Ltd [2022] CAT 29. The without prejudice rule means that evidence of negotiations aimed at resolving a dispute are inadmissible and cannot be relied on by either party, unless both waive the privilege.
Court Of Appeal Confirms Damages-Based Agreements (DBAs) Are Not For Defendants
The Court of Appeal has confirmed that Damages-Based Agreements (or DBAs) cannot be used by defendants as, under s.58AA of the Courts and Legal Services Act 1990, the agreement must provide for payment to the lawyer if the client "obtains a specified financial benefit" from the litigation: Candey Ltd v Tonstate Group Ltd [2022] EWCA Civ 936.
High Court Considers When Recast Brussels Regulation Continues To Apply In Transitional Cases
The High Court has considered when the rules in the recast Brussels Regulation will continue to apply to English proceedings commenced post-Brexit: Simon v Tache [2022] EWHC 1674 (Comm).
Commercial Litigation Podcast Series – Episode 14: General Update - Trials & Appeals & Compensation - UK
UK: Commercial Litigation Podcast Series – Episode 14: General Update 21 July 2022 Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Courts Have New Powers To Allow Remote Observation Of Hearings
From today, courts and tribunals have new powers to allow reporters and other members of the public to observe hearings remotely, under new s.85A of the Courts Act 2003 and the Remote Observation and Recording (Courts and Tribunals) Regulations 2022. The Lord Chief Justice and the Senior President of Tribunals have issued practice guidance to the judiciary on the new powers.
Party Penalised In Costs For Disproportionate Application To Strike Out Witness Evidence For Non-compliance With PD 57AC
A recent High Court decision highlights the need to think carefully before applying to strike out an opponent's witness statements, or parts of them, for non-compliance with Practice Direction (PD) 57AC (which applies to trial witness statements signed since April 2021): Curtiss v Zurich Insurance Plc [2022] EWHC 1514 (TCC).
Supreme Court Clarifies Test For Re-Opening Judgment Before Order Is Sealed
It has long been established that a judge has the power to re-open their judgment or order at any time until the order has been sealed. In a recent decision, the Supreme Court has clarified the approach a judge should adopt if asked to exercise this power, finding that the essential task is to do justice in accordance with the overriding objective of the CPR: AIC Ltd v Federal Airports Authority of Nigeria [2022] UKSC 16.
High Court Finds Identity Of Those Giving Instructions To Lawyers Not Protected By Litigation Privilege
In a recent decision, the High Court has held that a claimant could not claim litigation privilege in respect of the identities of the individuals giving instructions to its lawyers on its behalf in relation to the litigation: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2022] EWHC 1136 (Comm).
English Court Judgment Enforced In China For The First Time Following Landmark Policy Announcement
A court in the People's Republic of China (PRC) has for the first time recognised and enforced an English court judgment in Mainland China. The decision, which was formally approved by the country's highest court, the People's Supreme Court (PSC), granted enforcement of a High Court commercial judgment based on the principle of reciprocity: (2018) Hu 72 Xie Wai Ren No.1 (Shanghai Maritime Court, 17 March 2022).
High Court Finds Onus On Non-resident Respondent To Application For Security For Costs To Provide Evidence Of Location, Nature And Value Of Assets
A recent High Court decision helpfully sheds light on the court's approach to exercising its discretion as to whether to order security for costs against a claimant on grounds of their residence outside the court's jurisdiction (and outside the states bound by the 2005 Hague Convention on Choice of Court Agreements): Ras Al Khaimah Investment Authority v Azima [2022] EWHC 1295 (Ch).
High Court Orders Broad
In a recent decision, the High Court has made a rare order for disclosure to be given under Model E of the Disclosure Pilot at PD51U - ie old-fashioned "train of inquiry" disclosure, of the sort that applied before 1999 when the Civil Procedure Rules introduced a more limited concept of "standard disclosure": Ras Al Khaimah Investment Authority v Azima [2022] EWHC 1295 (Ch). The debate in this case was between Model D and Model E disclosure.
High Court Decision Suggests Party Alleging Witness Statement Fails To Comply With PD 57AC Must Identify Specific Failures
The latest in a line of High Court decisions considering Practice Direction (PD) 57AC, which applies to trial witness statements signed since April 2021, suggests that opponents should identify specific passages which they allege fail to comply with the PD if they wish the court to take action: Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch).
High Court Orders Stay Of English Proceedings Brought By Bank On Grounds Of Forum Non Conveniens
The High Court has ordered a stay of English proceedings brought by a bank against several shareholders of a company for deceit and unlawful means conspiracy on the grounds of forum non conveniens: Abu Dhabi Commercial Bank Pjsc v Shetty & Ors [2022] EWHC 529 (Comm). This decision will be of interest to financial institutions seeking to bring a fraud claim in the English courts in relation to financial services provided to a UK customer and its foreign subsidiaries.
Another Decision Showing What Parties Can – And Cannot – Do When They Receive A Draft Judgment Under Embargo - Trials & Appeals & Compensation - UK
In a recent decision, the High Court found that there was a clear breach of the embargo on a draft judgment where the defendant disclosed the outcome to journalists on confidential terms and subject to an agreement that they would not publish anything until after formal hand down.
High Court Hands Down Judgment Despite The Proceedings Having Settled Before Circulation Of The Draft Judgment
The High Court has held that it was within the court's power to hand down a reserved judgment where the proceedings had settled before the draft judgment was circulated. There was no need for the court to be satisfied that there were exceptional circumstances. The proper approach was to weigh the public interest for and against handing down judgment: Jabbar & another v Avviv Insurance Ltd & others [2022] EWHC 912 (QB).
Commercial Litigation Podcast Series – Episode 13: General Update (Podcast) - Litigation, Mediation & Arbitration - UK
UK: Commercial Litigation Podcast Series – Episode 13: General Update (Podcast) 31 March 2022 by Anna Pertoldi , Maura McIntosh and Philip Lis Herbert Smith Freehills In this 13th episode of our series of commercial litigation update podcasts, we give an update on recent cases relating to force majeure in the context of US sanctions, trial witness statements, draft judgments provided under embargo, and privilege, as well as cases and developments concerning cryptocurrencies.
English Commercial Court Allows Appeal Under S.69 Of The Arbitration Act On The Meaning Of A Reasonable Endeavours Obligation
UK: English Commercial Court Allows Appeal Under S.69 Of The Arbitration Act On The Meaning Of A Reasonable Endeavours Obligation 23 March 2022 by Chris Bushell , Susannah Cogman , Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Party Entitled To Rely On Force Majeure Clause Where Counterparty's Parent Company Became Subject To US Sanctions
To print this article, all you need is to be registered or login on Mondaq.com. The Commercial Court has held that a shipowner was entitled to rely on a force majeure clause in a shipping contract where its charterer's parent company became subject to US sanctions - allowing an appeal from an arbitration award on a point of law under section 69 of the Arbitration Act 1996: MUR Shipping BV v RTI Ltd [2022] EWHC 467 (Comm).
Commercial Court Report: Cross-Border Disputes Resilient As Key London Forum Takes Covid Disruption In Its Stride
To print this article, all you need is to be registered or login on Mondaq.com. The UK's primary venue for commercial disputes was less impacted by Brexit and the pandemic than many expected The Commercial Court annual report (2020-2021) was published last week.
Commercial Court Report 2020-2021: Court Remains Very Busy With Significant International And Complex Domestic Disputes
To print this article, all you need is to be registered or login on Mondaq.com. The Commercial Court annual report (2020-2021) was published last week. In her introduction, Mrs Justice Cockerill, Judge in Charge of the Commercial Court, notes that while the legal year was in a sense headlined by Brexit and the Covid-19 pandemic, in operational terms both had a smaller impact on the court than might have been anticipated.
High Court Finds No Litigation Privilege Where Expert Instructed To Try To Find Backing For Potential Counterclaim
UK: High Court Finds No Litigation Privilege Where Expert Instructed To Try To Find Backing For Potential Counterclaim 03 March 2022 by Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Court Of Appeal Gives Guidance On Jurisdiction Rules In Libel Claims
To print this article, all you need is to be registered or login on Mondaq.com.
High Court Finds Submission To Jurisdiction No Bar To Staying English Proceedings In Favour Of Thai Proceedings Following Change In Circumstances
UK: High Court Finds Submission To Jurisdiction No Bar To Staying English Proceedings In Favour Of Thai Proceedings Following Change In Circumstances 18 February 2022 by Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com. The High Court has granted a stay of English proceedings on the basis that the Thai courts were clearly and distinctly the more appropriate forum to determine the dispute.
UK: Court Of Appeal Decision Highlights Dangers Of Filing Claim Form Electronically On Final Day For Service 17 February 2022 by Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Another Decision Regarding A Failure To Comply With The New Requirements For Trial Witness Statements Under PD 57AC
UK: Another Decision Regarding A Failure To Comply With The New Requirements For Trial Witness Statements Under PD 57AC 17 February 2022 by Chris Bushell , Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Iniquity Exception To Privilege Does Not Apply Just Because Defendant To Fraud Claim Lies To Their Solicitors And The Court
UK: Iniquity Exception To Privilege Does Not Apply Just Because Defendant To Fraud Claim Lies To Their Solicitors And The Court 17 February 2022 by Anna Pertoldi , Maura McIntosh and Jan O'Neill Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
High Court Finds Covid-19 Pandemic Did Not Trigger A Material Adverse Change Clause In A Contract For Premier League Broadcasting Rights
UK: High Court Finds Covid-19 Pandemic Did Not Trigger A Material Adverse Change Clause In A Contract For Premier League Broadcasting Rights 17 February 2022 by Rachel Lidgate , Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
New Edition Of Commercial Court Guide Includes Important Updates
UK: New Edition Of Commercial Court Guide Includes Important Updates 08 February 2022 by James Farrell , Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com. The 11th edition of the Commercial Court Guide was published last week, reflecting a variety of changes to court practice. The new edition includes amendments to reflect new ways of working prompted, in part, by the Covid-19 pandemic.
UK Floats Tougher Push To Settle But One-Size Stance Looks A Poor Fit For Commercial Litigation
UK: UK Floats Tougher Push To Settle But One-Size Stance Looks A Poor Fit For Commercial Litigation 07 February 2022 by Anna Pertoldi , Maura McIntosh and Jan O'Neill Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
In this 12th episode of our series of commercial litigation update podcasts, we outline some recent cases on witness evidence, privilege and the dangers of filing court documents on the last day for service. We also cover some decisions on jurisdiction, and finally we look at a few recent cases where the courts have had to interpret force majeure and material adverse change clauses.
UK Floats Tougher Pre-Court Push To Settle But One-size Stance Looks A Poor Fit For Commercial Litigation
UK: UK Floats Tougher Pre-Court Push To Settle But One-size Stance Looks A Poor Fit For Commercial Litigation 03 February 2022 by Anna Pertoldi , Maura McIntosh and Jan O'Neill Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
A Counterclaiming Defendant Can Make A Valid
UK: A Counterclaiming Defendant Can Make A Valid "claimant's" Part 36 Offer 03 February 2022 by Anna Pertoldi , Maura McIntosh and Caroline Tuckwell Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com. In a recent decision, the High Court has confirmed that a party can obtain the costs benefits of making a "claimant's" Part 36 offer in relation to its counterclaim, even though it is not formally the claimant in the litigation.
High Court Finds Defendant Submitted To The Jurisdiction By Applying For Extension Of Time To Serve Defence
UK: High Court Finds Defendant Submitted To The Jurisdiction By Applying For Extension Of Time To Serve Defence 02 February 2022 by Anna Pertoldi and Maura McIntosh Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Civil Justice Council Consultation On Changes To Pre-action Protocols – Problematic Aspects For Commercial Litigation - Litigation, Mediation & Arbitration - UK
UK: Civil Justice Council Consultation On Changes To Pre-action Protocols – Problematic Aspects For Commercial Litigation 02 February 2022 by Anna Pertoldi , Maura McIntosh and Jan O'Neill Herbert Smith Freehills To print this article, all you need is to be registered or login on Mondaq.com.
Dispute Resolution Post-Brexit: How Important is Lugano?
The U.K. and the EU reached a deal on Christmas Eve. The U.K. completed its withdrawal from the EU on 31 December 2020, when the transition period established under the U.K./EU withdrawal agreement came to an end. The two sides concluded a last minute Trade and Cooperation Agreement to govern their future trading and security relationship.
Defendant awarded its costs where claimant failed to beat withdrawn Part 36 offer, as the offer should have been accepted when it was on the table | Lexology
In circumstances where a claimant failed to beat a defendant’s Part 36 offer, the High Court has granted the defendant a favourable costs order, very similar to the costs consequences that would have applied under CPR Part 36, despite the defendant having withdrawn the Part 36 offer before trial: Blackpool Borough Council v Volkerfitzpatrick Ltd [2020] EWHC 2128 (TCC) The automatic costs consequences under CPR Part 36 do not apply to a withdrawn offer, but the offer may still be taken into...
Commercial litigation podcast series - Episode 3: General update | Lexology
Click here to listen to the audio. In this third episode of our series of commercial litigation update podcasts, we look at developments in disclosure and privilege since our February update, as well as some developments relating to costs and funding.
High Court Finds "Control" For The Purposes Of Disclosure Includes Third Party Documents That The Litigating Party Can Access Under A Standing Consent Short Of An Enforceable Right - Litigation, Mediation & Arbitration - UK
To print this article, all you need is to be registered or login on Mondaq.com. In a recent decision, the High Court found that the documents of two of the defendant’s subsidiary companies were within its “control” for the purposes of disclosure: Pipia v BG Group Ltd [2020] EWHC 402 (Comm).
Master Finds Privilege Does Not Apply To Documents Held In Solicitors' Client Files Due To The Fraud Exception - Litigation, Mediation & Arbitration - UK
To print this article, all you need is to be registered or login on Mondaq.com. A High Court Master has found that documents held by a firm of solicitors on behalf of a former client were not protected by legal professional privilege, as there was a strong prima facie case that the firm had been instructed for the purpose of furthering the client’s fraudulent investment scheme: Addlesee v Dentons Europe LLP [2020] EWHC 238 (Ch).
New Podcast Available: The Implications Of Brexit For Choice Of Law, Jurisdiction & Enforcement Of Judgments
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