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Commercial Disputes Weekly – Issue 619 February 2021

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

We appreciate that our clients, partners and friends are currently facing unprecedented challenges as a result of the spread of the COVID-19 virus. Click here for a message from our Managing Partners, and here for all of our latest updates and articles on the subject. If you have any questions or require support, please do not hesitate to speak to your usual contact at WFW.

"It is obvious that third parties can only be compelled to do anything by an order under CPR Part 31.17 or another procedure to which they are made a party. But that does not, in our judgment, mean that the court cannot, as a matter of principle, require the parties to the proceedings to make requests of third parties by way of making a search for relevant documents."Phones 4U Limited (in administration) v EE Limited & Ors

Abuse of Process
Emphasising that it will be a rare case where the relitigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse, the Court of Appeal has nevertheless confirmed that it is possible for a claim to be struck out on the basis that it constitutes a collateral attack on a judgment in another case, even though the struck out claim was issued first.
Tinkler v Ferguson & Ors

Affidavits
Although declining to determine the issue given the significant implications across a range of practice areas, the High Court has suggested that it may be possible for an affidavit to be sworn remotely via video link without any amendment to the Commissioners for Oaths Act 1889.
Investohills Vesta v Petergrow Ltd & Ors

Covid-19
In an important case for the aviation industry, the Commercial Court has rejected arguments by an airline operator that its aircraft leases had been frustrated as a result of the Covid-19 pandemic. Read our full article on the case here.
Salam Air SAOC v Latam Airlines Group SA

Covid-19
Construing the terms of a contract between a local authority and a provider of sports and leisure services, the TCC has confirmed that while a change in law provision which was triggered by measures put in place as a result of the Covid-19 pandemic could reduce the management fee payable to zero, it could not fall below zero.
Westminster City Council v Sports and Leisure Management Limited

Disclosure
In a warning on the potential breadth of disclosure obligations, the Court of Appeal has refused an appeal from an order requiring defendants to ask employees and ex-employees to provide access to their personal mobile phones and emails, holding that the court had jurisdiction to make such an order and that it was neither inappropriate nor disproportionate.
Phones 4U Limited (in administration) v EE Limited & Ors

Part 36
While a Part 36 offer can be made in relation to detailed assessment proceedings, the High Court has confirmed that an offer cannot also be made in relation to the costs of detailed assessment, emphasising that otherwise there was potential for an indefinite cycle of Part 36 offers and new detailed assessment proceedings, each one parasitic on the last.
Best v Luton & Dunstable Hospital NHS Foundation Trust

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:

Andrew WardRebecca Williams
Ryland AshCharles Buss
Dev DesaiMarcus Dodds
Andrew HutcheonRobert Fidoe
Mike Phillips
Sarah Ellington

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