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RPC | United Kingdom | 18 May 2021

Exceptions to without prejudice rule – another retrenchment?

The Court of Appeal has resisted the temptation to provide clarity on the scope and application of the Muller exception to the without prejudice rule. In a recent case, the court indicated that recent first-instance decisions have strayed beyond the facts in Muller, a development that might widen the scope of the exception unjustifiably.
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RPC | United Kingdom | 11 May 2021

Hand in your notice – how to bring a successful warranty claim

Buyers wishing to make a claim under contractual warranty provisions must comply with those provisions to the letter; sufficient and timely information is key. The case discussed in this article is a salutary reminder of the importance of complying with contractual warranty provisions and the difficulties of bringing a misrepresentation claim where warranties have superseded any......
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RPC | United Kingdom | 16 Feb 2021

Does an expert owe a fiduciary duty to its client?

For the first time the Court of Appeal has considered the duties of an expert concurrently engaged in two potentially conflicting disputes. While the case involved an unusual set of circumstances, it provides an interesting review of the duties owed by expert witnesses to their clients and the court and highlights important considerations for those engaging expert witnesses and drafting......
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RPC | United Kingdom | 1 Dec 2020

Largest 'white elephant' in history of group actions

BHP has successfully applied to strike out 200,000 claims as an abuse of process. Had the judge not struck out the claims, he would have stayed proceedings on jurisdictional grounds under Article 34 of the EU Recast Brussels Regulation and the doctrine of forum non conveniens. While the significant nature of the proceedings would have raised England's profile as a forum for group litigation,......
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RPC | United Kingdom | 22 Sep 2020

What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement

The Court of Appeal recently held that 'market practice' is too wide a term to be implied into an International Swaps and Derivatives Association (ISDA) master agreement covering currency trading transactions by dismissing a claim arising from the 'de-pegging' of the Swiss franc from the euro. The desire to maintain the certainty and stability of the relationship between those contracting......
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RPC | European Union, United Kingdom | 28 Jul 2020

High Court reaches decision on test for jurisdiction over co-defendants

The High Court recently clarified the rules applicable to defendants domiciled in states that are party to the EU Recast Brussels Regulation (1215/2012). Following the decision, the court has jurisdiction to hear a claim against a non-UK defendant under Article 8(1) of the regulation only if the claim against the UK-domiciled anchor defendant is sustainable.
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RPC | United Kingdom | 23 Jun 2020

Privileged but admissible? When can without prejudice material be pleaded in statements of case?

In a recent decision the High Court considered the scope of the existing exceptions to the without prejudice rule. This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The High Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the without......
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RPC | United Kingdom | 5 May 2020

What are good grounds for appeal in insolvency applications?

Applying for permission to advance new evidence on appeal is a complex application which has had varying degrees of success in the courts. A recent decision is a useful example of the application of the criteria in the context of insolvency proceedings. This case clarifies that if unreliable evidence is put before the court, decisions based on that unreliable evidence can be challenged on......
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RPC | United Kingdom | 21 Jan 2020

Witness evidence reform: evolution not revolution?

Concern that current practice in relation to factual witness evidence does not achieve the best evidence at proportionate cost prompted the creation of the Witness Evidence Working Group to consider how the current practice could be improved in the business and property courts. The group's recommendations focus on the more consistent enforcement of existing rules with some limited new measures.
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RPC | United Kingdom | 15 Oct 2019

World freezing orders: recent dissipations and reasonable delays

The High Court has held that a delay in applying for a world freezing order was not fatal to its continuation at the return date, as the underlying transactions provided solid evidence of a risk of dissipation and the delay in seeking relief was not material and did not evidence the absence of a genuine belief in that risk. While the court may be reluctant to freeze assets on the basis of......
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