12 April, 2012

Court of Appeal decision on best endeavours clause

By a majority, the Court of Appeal has held that an airport operator’s obligation to use best endeavours to promote an airline’s low-cost services gave rise to an enforceable obligation to operate outside normal opening hours, as this was essential to the airline’s business model. The airport could not escape this obligation on the basis that to comply would be unprofitable: Jet2.com Limited v Blackpool Airport Limited [2012] EWCA Civ 417.

Clauses requiring the use of ”best”, “reasonable” or “all reasonable” endeavours to achieve some objective are commonly used in commercial agreements where a party will not accept an absolute obligation. Their precise meaning is, however, open to a great deal of debate. This decision gives further illustration of the potential uncertainties. Where a clause is broadly drafted, it may be difficult to predict in advance not only what is required to fulfil the obligation, but whether it is sufficiently certain to be enforceable in the first place.

Some practical implications of the judgments include:

  • Given the uncertainties, the drafting of such clauses should be approached with great care.
  • Where possible, it may be best to specify what steps a party is required to take (or not take) in order to comply with an obligation, or at least set some criteria by which a party’s endeavours can be assessed.
  • Parties should give careful consideration to how they perform an agreement in practice. Once the status quo has been established, a party may be called upon to justify any departure from it. Continue reading →

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10 April, 2012

Permission to change experts only if “good reason”

The Court of Appeal has confirmed that permission for a change of expert will only be granted where a party has “good reason” for the change; the mere fact that the expert has altered his view is not enough: Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392.

The decision is further confirmation that the courts will take a hard line against “expert shopping” – the practice of going from expert to expert until a favourable opinion is found. Previous decisions have established that, in order to discourage expert shopping, the court will normally require disclosure of a previous expert’s report as the price of granting permission for a new expert (see post on the decision in Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136). The present decision shows that permission may not be granted at all unless good reason can be shown, and permission may be particularly difficult to obtain at a late stage of an action. Practical implications of the decision include:

  • Where possible, in order to maintain flexibility, it is preferable to obtain permission to serve expert evidence based on a particular discipline rather than a named expert.
  • It is difficult to over-state the importance of testing a potential expert’s views robustly before obtaining a report. Continue reading →

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30 March, 2012

No legal advice privilege for claims consultants

The High Court has confirmed that communications between a party and his construction claims consultants (in relation to a claim for extensions of time) were not subject to legal advice privilege: Walter Lilly and Company Limited v. Mackay and DMW [2012] EWHC 649 (TCC). This was because the claims consultants had not been retained as solicitors or barristers, even if certain individuals dealing with the matter were qualified barristers.

The court applied the Court of Appeal decision in R (on the application of Prudential PLC) & Anor v Special Commissioner of Income Tax & Anor [2010] EWCA Civ 1094 confirming that legal advice privilege does not apply “in relation to any professional other than a qualified lawyer: a solicitor or barrister or an appropriately qualified foreign lawyer” (click here for more on that decision). Prudential’s appeal to the Supreme Court will be heard in November. Continue reading →

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27 March, 2012

Application of litigation privilege to competition investigations

In a ruling last Tuesday, 20 March, the Competition Appeal Tribunal has held that notes of third party witness interviews conducted by a party’s lawyers during an OFT investigation under the Competition Act 1998 were subject to litigation privilege under English law, as by the time the interviews took place the OFT’s investigation could be regarded as “sufficiently adversarial” to amount to litigation. Continue reading →

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26 March, 2012

Lord Justice Jackson emphasises role of ADR in resolving disputes

One of Lord Justice Jackson’s recommendations, in his January 2010 report on civil litigation costs (see our 14 January 2010 e-bulletin), was that all litigation lawyers and judges should be properly informed about the benefits of alternative dispute resolution (ADR) and alert the public and small businesses to those benefits. To this end he recommended that an authoritative mediation handbook be prepared. In his recent lecture on the role of ADR in furthering the aims of the costs review (the 11th lecture in the implementation programme for the Jackson reforms), Lord Justice Jackson confirmed that an ADR handbook for use by judges and litigators is planned to be published in April 2013. Continue reading →

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22 March, 2012

Litigation from a client’s perspective: top tips from the advocacy unit

On 21 March Murray Rosen QC, head of Herbert Smith’s Advocacy Unit, together with support lawyers Pamela Kiesselbach and David Phillips, presented a webinar entitled ‘Litigation from a client’s perspective: top tips from the advocacy unit’. Murray, Pamela and David drew on a combined half century of knowledge gained from running disputes of all types to impart some practical advice for in-house lawyers. Here are their top ten tips: Continue reading →

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Filed under Disclosure, Evidence, Experts, Privilege, Settlement

21 March, 2012

New powers to define and limit factual evidence

The Civil Procedure Rule Committee has agreed a proposal to address the concerns expressed in Lord Justice Jackson’s costs review as to the use of “lengthy and prolix” witness statements (see our e-bulletin of 14 January 2010). 

CPR 32.2 will be amended to give courts express powers to define and/or limit the factual witness evidence, similar to the provisions recently approved to encourage greater focus of expert evidence (see post). These amendments will be held over until the general implementation date for rule changes to implement the Jackson reforms, expected for April 2013. Although the final text of the rule relating to factual evidence is not yet available, we understand that it will allow the court to give case management directions:

  • identifying or limiting the issues to which factual evidence may be directed;
  • identifying the witnesses who may be called or whose evidence may be read;
  • limiting the length of witness statements. Continue reading →

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14 March, 2012

Party in breach of “unless” order due to strict application of deemed service provisions

The High Court has held that a party was in breach of an “unless” order requiring service of a disclosure list by a particular date, despite the opponent’s solicitors having received the list by that date, as a result of the strict application of the CPR deemed service provisions Joyce v West Bus Coach Services Limited [2012] EWHC 404 (QB). As a result, the claim was automatically struck out from the date of the breach, although it was subsequently reinstated when the court granted the claimant’s application for relief from the sanction of striking out. The court also held (rather unsurprisingly) that, in the period following breach of the unless order and before the grant of relief, the claimant could not validly accept a Part 36 offer to settle the claim which had previously been made by the defendant.

Practical points emerging from the decision include:

  • The dates for deemed service apply strictly to documents served in the course of proceedings, not just the claim form. A document will be deemed served on the date provided in the rules, regardless of whether it is in fact received sooner (or later).
  • Where a party is required to serve a document by a particular date pursuant to an unless order, a failure to have regard to the deemed service rules could mean that the party’s claim (or defence) is automatically struck out, though the court has a discretion to reinstate it on the defaulting party’s application for relief from sanction.
  • If an opponent’s claim (or defence) has been struck out as a result of breach of an unless order and they have applied for relief from sanction, consider withdrawing or varying any Part 36 offers you have previously made. If relief is granted, any Part 36 offers will be reactivated. Continue reading →

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Filed under Judgments/Orders, Part 36 offers, Service

12 March, 2012

High Court guidance on non-party access to court documents

In the context of the phone hacking litigation, the High Court has considered the principles governing which court documents are publicly available: Various claimants v News Group Newspapers Ltd and another [2012] EWHC 397 (Ch).

Under CPR 5.4C a non-party to proceedings can obtain, without the court’s permission, a copy of a statement of case or a judgment or order made in public. Any other document is available only with the court’s permission. In this case the judge held that a “statement of case” for these purposes includes only the documents expressly mentioned in the definition at CPR 2.3(1) (namely a claim form, particulars of claim, defence, Part 20 claim, reply to defence, or any further information given in relation to any of them), and amended versions of these documents. A notice to admit and the response to it were not therefore available automatically under the rule.

This contrasts with R (Corner House Research) v The Director of the Serious Fraud Office [2008] EWHC 246, in which the Administrative Court held that an acknowledgment of service and detailed grounds in a judicial review claim were available to non-parties without the court’s permission under CPR 5.4C, as the word “defence” in the definition of a statement of case could include the judicial review equivalent of a defence.

Continue reading →

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8 March, 2012

MoJ’s “Call for Evidence” re proposed Common European Sales Law

The Ministry of Justice has published a Call for Evidence in relation to the European Commission’s proposals for a Common European Sales Law (see post). The consultation is open until 21 May, and responses to it will help the UK government develop its position on the Commission’s proposals. Continue reading →

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