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Commercial Disputes Weekly – Issue 154 February 2020

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

Abuse of process
The Court of Appeal has confirmed that although a unilateral decision not to pursue a claim for a substantial period while maintaining an intention to pursue it at a later juncture (also known as “warehousing”) may constitute an abuse of process, it does not necessarily do so. It will all depend on the reason the proceedings were put on hold, the strength of that reason, and the length of the period in question.
Alibrahim v Asturion Fondation

"… for legal advice privilege to apply to a particular communication or document, the proponent of the privilege must show that the dominant purpose of that communication or document was to obtain or give legal advice."The Civil Aviation Authority v R (on the application of Jet2.com Limited) & Anr

Appeals
It will be an unusual step to take, but the Commercial Court has held that a court hearing an appeal from an order registering a foreign judgment in England has the power to order disclosure. Nevertheless, parties will be reassured to know the court will generally be reluctant to order disclosure in such circumstances unless strictly necessary and appropriate.
The Kingdom of Spain v The London Steam-Ship Owners’ Mutual Insurance Association Limited

Maritime
In a case concerning in rem proceedings against an arrested vessel, the Admiralty Court has noted that since other parties may have a claim against the vessel, pursuant to the Civil Procedure Rules it is not appropriate to grant judgment in default of a defence unless the court is satisfied that the claim has been proved.
Qatar National Bank QPSC v The Owner of the Yacht Force India

Privilege
The Court of Appeal has handed down its second significant judgment on privilege in as many weeks, confirming that a dominant purpose test applies to legal advice privilege as well as litigation privilege, and so when assessing whether emails sent to both lawyers and non-lawyers are covered by privilege, it is necessary to identify the purpose of the communication.
The Civil Aviation Authority v R (on the application of Jet2.com Limited) & Anr

Settlement
Subsequent changes to the law can mean that past decisions taking a contrary view can be set aside for common mistake. However, the High Court has emphasised that when deciding whether a settlement agreement should be set aside for mistake, it will be necessary to consider the change of law and whether the parties simply made a misprediction about the course of future legal events, rather than a mistake.
Elston v King & Anr

FOR MORE INFORMATION

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams:

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