Welcome to the Commercial Dispute Resolution Update for March 2010.
If you require the full text of any of the cases referred to or further information about any of the items referred to, or if you have been forwarded this update by a colleague and would like to receive it direct, please contact Sian Forbes.
All links are correct at the date of publication. The following topics are covered:
Porton Capital Technology Funds & another v 3M UK Holdings Ltd & another (2010)
Disclosure during litigation did not release potential witnesses from their duty of confidence owed to a former employer. That duty was not altered by the employer's disclosure of documents and the former employees could not legitimately provide information that would breach their obligation not to disclose confidential information.
BSkyB Ltd & another v HP Enterprise Services UK Ltd (formerly Electronic Data Systems Lts) & another (2010)
The defendant was liable in deceit where it had falsely represented that it had carried out a proper analysis of the amount of time needed to complete the initial delivery of a customer relationship management system for the claimant broadcaster and that it was of the opinion, and had reasonable grounds for holding the opinion, that it would deliver the project in the timescales put forward. There was no proper analysis carried out and no reasonable grounds for making those statements. The statements had been made dishonestly with the intention that the claimants would rely on them. The defendant was therefore liable in deceipt for those misrepresentations.
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Cheltenham Borough Council v Laird (2010)
A party who had successfully defended an action for fraudulent misrepresentation was awarded only 65% of her costs on the basis that she had failed on several issues. The Court of Appeal held that the judge had been entitled to make that order. Under CPR 44.3(4)(b) the court had to adopt an issue based appraoch to costs and it was no different in cases involving fraud.
Lawtel reference AC9400965 (password required).
Drew v Whitbread (2010)
There was no rule that a failure to raise a point before a trial judge would preclude the raising of it before the costs judge on detailed assessment. Where a case had been heard on the multi-track but should have been heard on the fast-track, the judge could not simply assess costs on the fast track basis but he could assess costs on the standard basis, taking into account that the case should have been allocated to the fast track.
Lawtel report AC0123626 (password required).
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O'Beirne v Hudson (2010)
A consent order provided for costs to be assessed on the standard basis. The court held that in making an assessment the costs judge was entitled to take account of all the circumstances, including the fact that the case would almost certainly have been allocated to the small claims track. The judge would then be entitled to have regard to what could or could not be recoverable if the case had been so allocated and whether it was reasonable for the paying party to pay more than would have been recoverable.
James Pankhurst v (1) Lee White (2) Motor Insurance Bureau (2010)
It was only in circumstances where a part 36 offer had been unilaterally withdrawn at a time when the offeree could still have accepted it (either within the 21 day period after the offer was made or with leave of the court), that the enhanced interest and costs consequences would not take effect.
Shaw v Nine Regions (2009)
The case had been allocated to the small claims track and the Recorder made no order for costs at the end of the case on the basis that it was a small claim. The court held that the Recorder had erred in making this decision as there was a contractual right to costs and the defendant had done nothing which would justify depriving it of that right.
Lawtel report AC0123384 (password required).
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Sughra Sulaman v (1) Axa Insurance plc (2) Direct Line Insurance plc (2009)
The trial judge was entitled to reduce by two thirds the costs of a successful defendant who had lied.
Ali & others (appellants) v Birmingham City Council (respondents) & Secretary of State for Communities & Local Government (intervenor) sub nom Tomlinson v Birmingham City Council (2010)
A decision by a local housing authority that it had discharged its duty to ensure that accomodation was available for occupation by a homeless applicant was not a determination of that person's 'civil rights' under the European Convention on Human Rights.
Hotel Cipriani SRL & others v Cipriani (Grosvenor Street) Ltd & others (2010)
The 'own name' defence under Regulation 40/94 art 12(a) could be used where a company's corporate name differed from its trading name. Whether it could be used in any particular circumstances would depend on what trading name had been adopted, in what circumstances it had been adopted and whether the use was in accordance with honest practices.
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Practice and procedure
Richard Buxton (Solicitors) (Appellant) v Huw Llewelyn Paul Mills-Owens (Respondent) & Law Society (Intervener) (2010)
A solicitor would have a 'good reason' (under the Solicitors' Practice Rules 1990 and Solicitors' Code of Conduct 2001) to terminate a client's retainer if the client required the solicitor to put forward a case that was not properly arguable because it was bound to fail. However, it is necessary to give reasonable notice to the client and have reasonable grounds for ceasing to act.
Without prejudice communications