Dispute Resolution analysis: Christopher Snell, Barrister at No 5 Chambers considers the case of EMW Law LLP v Halborg. This In Brief considers some of the exceptions to the general rule that without prejudice negotiations will usually be inadmissible in their entirety. The claimant, EMW, sought specific disclosure of documentation produced during the course of settlement negotiations between the defendant and a third party. The defendant refused to disclose those documents on the basis that they were, inter alia, covered by the without prejudice rule and were thus inadmissible evidence. The court found the documents to be disclosable, disapplying the usual rule.

Dispute Resolution analysis: Rosamund Baker, barrister at Selborne Chambers, considers the case of Philp and another v Cook, in which the High Court construed the effect of a contractual provision in a share purchase agreement which excluded the sellers’ liability for a breach of warranty where the buyer failed to notify the sellers of a claim within a certain period of time. The High Court followed Aries Tanker Corporation v Total Transport Ltd, the Aries [1977] 1 All ER 398 in stating that a contractual limitation bar could not only preclude a party from setting up a counterclaim but could also preclude a party from relying upon equitable set-off as a defence. In the circumstances of this particular contract, the High Court held that the buyer was so precluded from relying upon equitable set-off.

Commercial analysis: Jonathan Edwards, barrister at Radcliffe Chambers, considers the case Royal Devon and Exeter NHS Foundation Trust v Atos IT Services. The claim was brought by an NHS Trust which had contracted to buy a computing system and five years of support services for a price of almost £5m. The NHS Trust found the system unsatisfactory and despite attempts at fixes the contractual relationship broke down. The NHS Trust claimed (on a reliance loss basis) that it had wasted expenditure, including payments towards the contract price, of almost £8m. Preliminary issues arose as to how this claim should be characterised for the purposes of a clause seeking to exclude liability for loss of profits, revenue or anticipated savings (as well as other heads of loss), and as to whether a clause seeking to limit liability was unenforceable by reason of uncertainty. The claimant succeeded on the first issue, but failed on the second, with the overall effect of any liability being subject to a cap.

IP & IT analysis: From 28 July 2016, section 52 of the Copyright, Designs and Patents Act 1988 (CDPA 1988) will be repealed and mass-produced artistic works will be protected by copyright for the full term of 70 years plus the life of the author.

Dispute Resolution analysis: David Sawtell, barrister at Lamb Chambers, considers the case of Michael v Phillips [2017] EWHC 1084 (QB), where Soole J held that where a defendant has been debarred from defending a claim, it is not open to that party to contest liability or quantum. The debarred party cannot challenge factual or expert witnesses by cross examination or submission. Claimants must still prove their case to the satisfaction of the court.

IP & IT analysis: The freedom of speech provisions in section 12 of the Human Rights Act 1998 (HRA 1998) require the court in granting gagging orders, to ensure that it is satisfied that it is ‘likely’ the injunction would be made permanent at trial. Ashley Roughton, intellectual property barrister at Nabarro, considers the case of Middleton and another v Person Unknown or Persons Unknown.

Commercial analysis: A judge had been correct in granting summary judgment in a dispute concerning the right to terminate an agreement on six months notice. There was no implied duty of good faith when exercising rights of termination and the case of Yam Seng Pte v International Trade Corporation is distinguished. The test for determining whether there has been an implied variation of an existing contract by conduct is clarified as being the same as for determining whether there is an implied contract.

Commercial analysis: Graeme Kirk, barrister at Lamb Chambers, considers the case of McConomy and another v ASE plc and another, in which HHJ Stephen Davies, sitting as a judge of the High Court in the Manchester District Registry, considered allegations of breach of a shareholders’ agreement and a service level agreement (SLA) relating to a joint venture. This case considered contractual interpretation, variation, material and repudiatory breach, express obligations of good faith and other issues.

IP & IT analysis: Roger Wyand QC, barrister at Hogarth Chambers, considers the case of Signature Realty Ltd v Fortis Developments Ltd and another. This case concerned the use of architectural drawings by a developer when the drawings were submitted by a third party and the developer has no licence. The judge considered originality, reproduction of a substantial part, damages under section 97(2) of the Copyright, Designs and Patents Act 1988 (CDPA 1988) and the appropriateness of an injunction.

Dispute Resolution analysis: In Welsh Ministers v Price and another, the Court of Appeal provided guidance on the circumstances in which a third party may be joined to proceedings, both generally and specifically in the context of proceedings for the restoration of a company to the Register of Companies. Niraj Modha, barrister at Tanfield Chambers, considers the case.

IP & IT analysis: This is a case brought by Nvidia Group for groundless threats of proceedings for infringement of a trade mark and also for a declaration of non-infringement. German attorneys of the defendant Hardware Labs Performance Systems Inc (HLPS) had written to the claimants’ US parent company Nvidia Corp alleging infringement of their EU trade mark ‘GTX’ and the Nvidia group had sued in the UK for groundless threats pursuant to section 21 of the Trade Marks Act 1994. This section is extended by a statutory instrument to threats of infringement proceedings relating to EUTMs. Nicola Hill of Browne Jacobson LLP considers the case of NVidia Corporation & Ors v Hardware Labs Performance Systems.

Commercial analysis: Kira King, barrister at New Square Chambers, considers the case of MacInnes v Gross. The claim was for €13.5m arising out an alleged oral contract or alternatively by virtue of a quantum meruit for the same sum. It was held that the contractual claim failed because there was no intention to create legal relations and there was uncertainty as to both the contractual parties and the terms of the contract. Similarly, it was held that the quantum meruit claim failed because it could not be said that the €13.5m represented the objective market value of the services provided by the claimant.