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COVID-19: force majeure and frustration flowcharts
29 March 2020The Coronavirus situation may interfere with contractual performance for a variety of reasons. Download here our flowcharts of the issues for those considering whether it is possible to bring contracts to an end (or suspend performance of contractual obligations) without breaching the contract by relying on contractual force majeure clauses or the common law doctrine of frustration.
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Dispute Resolution Update - March 2020
12 March 2020Welcome to our March 2020 Dispute Resolution Update. We’ve included articles on a range of disputes, including summaries of recent cases and guides on key aspects of dispute resolution. With an increasingly globalised and fast changing environment, disputes are an inevitable part of business. Not only can we help resolve disputes once they arise, we also work with our clients to reduce the risk of litigation. If you have any feedback, comments or queries let us know by contacting Rachel Rooksby.
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Court of Appeal refuses to depart from "natural and ordinary" meaning of commercial indemnity clause
26 February 2020The Court of Appeal has considered the construction of an indemnity clause in a trust deed holding that the words used should be given their natural and ordinary meaning. The case highlights the importance of clear and careful drafting as the courts will not readily rescue parties from the effects of the words used even where this means an unexpected advantage for a party.
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Court of Appeal confirms dominant purpose test for legal advice privilege
19 February 2020The Court of Appeal has recently provided guidance on the scope of legal advice privilege. The guidance is particularly important for in-house lawyers and those with a hybrid legal and commercial role.
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Counting the cost of the Coronavirus
17 February 2020The spread of the Coronavirus (officially named COVID-19) shows no sign of abating. There have been around 71,000 confirmed cases worldwide and around 1,700 deaths (as at 17 February 2020). Authorities in China have put parts of the country in lockdown to limit the spread. An estimated 500 million people in the country are affected by restrictions.
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Terminating contracts: breaking up is never easy...
12 February 2020The UK has now left the EU. However, the precise terms of our departure are as yet unclear. In the face of uncertainty, prudent businesses are assessing contracts, their cost base and their exposure to currency fluctuations. As part of such a review, the well-prepared need to develop exit strategies where arrangements have become, or will become, unprofitable.
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Dispute Resolution Update - January 2020
16 January 2020Welcome to our January 2020 Dispute Resolution Update. We’ve included articles on a range of disputes, including summaries of recent cases and guides on key aspects of dispute resolution. With an increasingly globalised and fast changing environment, disputes are an inevitable part of business. Not only can we help resolve disputes once they arise, we also work with our clients to reduce the risk of litigation. If you have any feedback, comments or queries let us know by contacting Rachel Rooksby.
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Witness statements in the Business & Property Courts: no radical change, but room for improvement
07 January 2020After a consultation period, the Witness Evidence Working Group has published its report on factual witness evidence in the Business and Property Courts of England and Wales (the “B&PCs”), i.e. the Commercial Court, the Chancery Division and the Technology and Construction Court. The report does not propose radical changes, but recommends a number of ways in which the use of witness statements in the B&PCs can (and should) be improved.
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How damages are measured can make a stark difference in claims for breach of a tripartite collateral warranty
06 December 2019The High Court has given one defendant a stark lesson in how the measure of damages can make a significant – and costly – difference to the value of a successful claimant’s remedy.
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Without Prejudice and Without Prejudice Save as to Costs – Reasons to be Careful
21 November 2019The judgment in Sternberg Reed Solicitors v Andrew Paul Harrison [2019] EWHC 2065 (Ch) has put practitioners on notice that mislabelling without prejudice correspondence may have serious implications.
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Parties making false statements in pre-action witness statements to face proceedings for contempt of court
18 November 2019In a case relating to a package holiday which will serve as a warning to anyone considering fabricating facts to support a letter of claim, the Court of Appeal has ruled that parties making false statements in pre-action witness statements (potentially exposed as being untrue by the witnesses’ own social media posts) can face proceedings for contempt of court.
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“Once privileged, always privileged”
24 October 2019The Court of Appeal has held that legal advice privilege attaching to communications between a company client and its lawyers survived the dissolution of the company client, even where the Crown had disclaimed its interest in the documents concerned.
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Dispute Resolution Update - October 2019
10 October 2019Welcome to our October 2019 Dispute Resolution Update. We’ve included articles on a range of disputes, including summaries of recent cases and guides on key aspects of dispute resolution. With an increasingly globalised and fast changing environment, disputes are an inevitable part of business. Not only can we help resolve disputes once they arise but we also work with our clients to reduce the risk of litigation.
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Law Commission confirms legality of electronic signatures
19 September 2019Following consultation, the Law Commission has published its report on the electronic execution of documents and confirmed that, “An electronic signature is capable in law of being used to execute a document (including a deed) provided that (i) the person signing intends to authenticate the document and (ii) any formalities relating to execution of that document are satisfied.”
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Misrepresentation: the truth, the half-truth and anything but the truth
19 September 2019When negotiating a deal, counterparties often exchange pre-contract statements and promises. Sometimes those statements and promises turn out to be wrong. Exaggerations, mistaken beliefs, misleading opinions as well as statements made recklessly might result in an aggrieved counterparty seeking redress.
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Mistakes in contracts – How to assess the parties’ intentions?
18 September 2019The legal remedy of rectification is an equitable remedy that, if granted by the court, may be used to amend a contract that says one thing, but which both parties had intended to say something else – i.e. a common mistake was made. The test to be adopted by the courts in assessing what the parties’ intentions were for the purposes of establishing a common mistake has been unclear and the source of much legal debate for several years. However, the Court of Appeal has now considered the issue and concluded that in certain situations that the correct test is a subjective one.
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Publicity remains the “soul of justice” as Supreme Court rules non-party should be allowed access to court documents
16 August 2019The Supreme Court has found that the courts have inherent jurisdiction under the constitutional principle of open justice to grant public access to documents placed before them or referred to during hearings – but “it is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle”.
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Privilege disapplied: the “iniquity” exception
06 August 2019In an application brought by a hotel portfolio company (in liquidation) for a declaration that it was entitled to disclose a number of documents within its possession, the High Court has considered when the “iniquity” exception will apply to legal professional privilege. So what is the iniquity exception and what does a party need to establish in order to rely on it?
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Nottingham Forest FC loses High Court claims following club’s sale but plans appeal
06 August 2019The High Court has dismissed claims arising out of the sale of Nottingham Forest Football Club (“the club”) for breaches of indemnities in the share purchase agreement (“the SPA”) and for the alleged misrepresentation of the club’s liabilities.
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Dispute Resolution Update - July 2019
10 July 2019Welcome to our July 2019 Dispute Resolution Update. We’ve included articles on a range of disputes, including summaries of recent cases and guides on key aspects of dispute resolution. With an increasingly globalised and fast changing environment, disputes are an inevitable part of business. Not only can we help resolve disputes once they arise but we also work with our clients to reduce the risk of litigation.