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Without prejudice privilege: not a cloak for improper threats
16 August 2016Without prejudice privilege (“WP privilege”) allows parties to a dispute to try to settle their differences without their discussions being revealed to the court, and potentially to the public.
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Pheasant sick as a parrot
21 March 2016Today, 21 March 2016, HHJ Pelling handed down his judgment in relation to the account of profits element of the long-running dispute between Jack Wills and House of Fraser over the use of a logo consisting of a pigeon with a top-hat and bow-tie on some of its own-brand “Linea” products. The logo was found by Mr Justice Arnold to infringe Jack Wills’ rights in its “Mr. Wills” pheasant with a top-hat and a cane.
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Highly unattractive: Court criticises complaints raised for the first time when resisting enforcement
04 February 2016The Commercial Court denied an application to resist enforcement and recognition of a French judgment on the basis of public policy. The court reiterated the exceptional nature of the public policy carve out in the Brussels Regulation (44/2001) particularly in circumstances where the grounds relied on by the applicant could have been raised in the foreign court itself.
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When a loss becomes a gain: accounting for gains made when mitigating losses
01 February 2016Following a breach of contract, the innocent party is usually entitled to damages. Broadly speaking these are set at a level required to put them in the position they would have been had the contract been performed properly. However, there is no entitlement to recover for avoidable loss and so this gives rise to what is sometimes referred to as a “duty” to take all reasonable steps to mitigate one’s loss. If the steps taken increase the loss overall, the increased figure is recoverable. On the other hand, if steps taken in mitigation are successful, the wrongdoer is entitled to the benefit accruing and their liability is for the resulting loss as lessened. But what happens when the claimant’s steps to mitigate are so effective that he makes a profit, wiping out any loss arising from the breach?
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Court of Appeal has no appetite for salami slicing
25 January 2016Without prejudice privilege is founded upon public policy. It serves to encourage litigants to settle their differences. Its effect is to exclude all negotiations genuinely aimed at settlement (whether oral or in writing) from being referred to at trial. Solicitors will often head negotiating correspondence “without prejudice” yet protection is not dependent upon use of the label. It is often misused and arises automatically in appropriate circumstances. So what happens when no label is used and attendees of a meeting later disagree as to its status?
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What’s obvious to some is not obvious to all: Supreme Court espouses a conservative approach to implied terms
18 January 2016“Rent” is what a tenant pays to occupy premises – agreed? So you might think it was “obvious” that a tenant shouldn’t pay rent for any period after the tenancy terminates – e.g. in circumstances where a tenant validly terminates the lease early. If you think that, you were in good company and indeed many landlords would voluntarily reimburse rent paid for the period after the termination date even where the lease did not expressly require this. Why? – because it was it was the right thing to do, obviously!
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When will a court override an exclusive jurisdiction clause?
30 November 2015In Jong v HSBC Private Bank (Monaco) SA [2015] EWCA Civ 1057, the Court of Appeal upheld the decision of HHJ Purle QC not to override an exclusive jurisdiction clause, setting out the factors to be balanced in the exercise of the court's discretion.
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No duty of loyalty owed by directors to shareholders
26 November 2015On 12 November 2015, in Sharp & Others v Blank & Others [2015] EWHC 3220 (Ch), Mr Justice Nugee handed down his latest judgment in litigation between the directors and shareholders of Lloyds Bank. His decision is of interest to directors and shareholders alike. It re-affirms the scope of duties owed by directors to shareholders, as well as the approach to be adopted when assessing them.