Dispute Resolution analysis: Dr Tim Sampson, barrister at Lamb Chambers, examines a High Court decision that—in a claim for trade mark infringement and passing off—the first to fourth defendants were not entitled to withhold inspection of two documents that they maintained were subject to legal advice privilege, but they were entitled to other relief. This would prevent the claimants’ use of another document subject to litigation privilege, which they had disclosed by mistake.

Dispute Resolution analysis: This case confirms the dangers of parties seeking to extend the deadline for service of the claim Form and particulars retrospectively. The argument that the defendants had impliedly agreed to the extension was not made out and, in any event, a retrospective extension will only be granted under CPR 7.6 (3) where the claimant has taken ‘all reasonable steps’ to serve the claim form (where the onus is on them to do so). The claimant had taken no such steps to serve in advance of the expiry of the deadline and, accordingly, the court lacked jurisdiction to hear the application. Further, this case confirms that, while CPR 2.11 allows parties to vary the time specified to undertake an act by written agreement, to be effective, a stay must be pursuant to an order of the court. Written by Georgia Whiting, legal counsel at Capita.

Construction analysis: The Technology and Construction Court (TCC) found that a first adjudicator had not breached natural justice by considering counterclaims only very briefly and not engaging in considering the quantum elements of that counterclaim, finding instead that this was an error of law. In relation to a second adjudication on similar issues, a distinction was made between a claim on similar facts and what had actually been decided in the first adjudication, and thus the second adjudication was also enforceable as it was a different claim on the same factual matters.

Dispute Resolution analysis: Burton J has reiterated the Court of Appeal position in Masri that determining whether an English court has jurisdiction it must do so on the basis of the grounds/gateways in CPR Part 6 and that where an anti-suit injunction is also sought, no jurisdictional gateway is required in relation to the injunction as it is ancillary and incidental to the main proceedings. The same was true in respect of Lord Cairns’ Act damages (damages in lieu of an injunction under s 50 of the SCA 1981). In addition, where a contract, in this case a bill of lading, is governed by an English law clause but has no jurisdiction clause, the English courts cannot restrain a party from bringing proceedings in a foreign jurisdiction solely on the basis that there was a concern that the foreign court would not apply English law as the law of the contract.

TMT analysis: In this preliminary ruling concerning a claim for defamation, misuse of private information and harassment, the High Court has granted the first and second defendants’ application to waive their anonymity rights, but has dismissed the claimant’s application for a reporting restriction order. The court gave detailed consideration of the correct test to apply when considering the latter application, concluding that section 12(3) of the Human Rights Act 1998 (HRA 1998) applied.

Planning analysis: In Lisle-Mainwaring v RBKC, the court rejected the argument that a local planning authority (LPA) has a discretion to refuse to determine an application for the discharge of a condition which it considers after the expiry of the relevant planning permission. The court held that the general principle that an LPA has a continuing duty to determine an application for planning permission and for approval of reserved matters also applies to applications for approvals required under a planning condition. This is still the case where an application is made before the time limit for implementation of a planning permission has expired and is determined afterwards. As this approach was not before the LPA, the court also held that there was no requirement for it to cast around for alternatives to determining an application. There was no material misdirection in the officer’s report or advice to committee and the council’s decision to determine the application was lawful. Written by Elizabeth Dunn, partner, and Sarah Sutherland, practice development lawyer at Burges Salmon LLP.

Property analysis: Tim Cowen, barrister at 9 Stone Buildings, examines a Chancery Division decision on whether the extent of the premises demised by a lease included the airspace above the buildings or was confined to the interior of the buildings.

Dispute Resolution analysis: Judge Waksman QC has refused to set aside or stay a court order dealing with detailed assessment of costs pending a decision of the European Court of Human Rights (ECtHR)—the appellant claiming his right to a fair trial had been breached. The judgment reiterates the issues the court will consider when determining whether to set aside or stay a court order and, in particular, considers the approach of the court where there are proceedings in the ECtHR.

Dispute Resolution analysis: The Commercial Court dismissed an application to substitute a party for the existing claimant, holding that the purported assignment of rights was ineffective due to contractual restrictions and void for champerty. The court narrowly construed the assignment clause in the contract, finding Chillblast Ltd, the applicant, did not qualify as a permitted assignee. It also ruled Chillblast lacked a legitimate interest to justify the assignment. The judgment clarifies that the CPR 19.2(4) requirements for party substitution are disjunctive and applies a balance of probabilities test to meeting them. This case offers significant guidance on interpreting anti-assignment clauses, the modern application of champerty rules, and ‘change of party’ procedural requirements in commercial litigation. Written by the Dispute Resolution team at LexisNexis.

Commercial analysis: The High Court has allowed an application to continue an interim injunction. The injunction was aimed at protecting an exclusive licensee's right to distribute and promote the licensor's luxury footwear within specified countries, including the US. The licensor argued that the agreement contained express or implied terms permitting either party to terminate the agreement on reasonable notice. The court rejected this because the agreement included carefully drafted termination provisions which did not permit such a term. As a result, the court granted summary judgment. Written by Helen Hart, senior practice development Lawyer, Lewis Silkin LLP.

Court costs are the expenses associated with bringing or defending legal proceedings, excluding the professional fees of solicitors and counsel unless specifically included by rule or order. They typically cover court filing fees, hearing fees, service of documents, witness expenses, expert fees, and certain enforcement costs. In England and Wales and Northern Ireland, the term is often used interchangeably with “costs” in civil procedure, though the Civil Procedure Rules and court rules usually refer simply to “costs”, which may include both court fees and legal representatives’ charges. In Scotland, “judicial expenses” is the more common expression, while in Ireland “costs” and “outlay” are used, with court fees forming part of those costs. Court costs are usually subject to the court’s discretion and may follow the event (the loser pays the winner’s costs), be reserved, or be made the subject of specific costs orders or taxation/detailed assessment. They are central to litigation risk assessment, access to justice, and costs budgeting, and are treated in legislation, rules of court and case law across all four jurisdictions in broadly similar ways, though terminology and procedure differ.

Commercial analysis: The Court of Justice ruled on the interpretation of Directive 2006/123/EC (the Services Directive) in the two joined cases of College van Burgemeester en Wethouders van de gemeente Amersfoort v X BV and Visser Vastgoed Beleggingen BV v Raad van de gemeente Appingedam (Cases C-360/15 C-31/16). This analysis focuses on the judgment in the second of those cases. In respect of that case, the Court of Justice considered the interpretation of the Services Directive and, among other things, found that: (i) the Services Directive must be interpreted as meaning that the activity of retail trade in goods constituted a ‘service’ for the purposes of the Services Directive; and (ii) the provisions of Chapter III (freedom of establishment) of the Services Directive are to be interpreted as meaning that they apply to a situation where all the relevant elements are confined to a single Member State.