A round-up of some recent litigation cases

We've brought together a round-up of some recent litigation cases.

Disclosure of documents mentioned in witness statements

The test for whether a document has been "mentioned" in a witness statement under CPR 31.14 so as to entitle another party to inspect it is whether there was a direct allusion to it, or a specific mention of it. The mention has to be to the document itself, not merely to its contents or effect. In this case it was in the interests of justice to decline to order inspection (W M Morrison Supermarkets Plc v Mastercard Inc).

Subject to contract

Where the claimant accepted the defendant’s offer to pay a sum in full and final settlement “to be recorded in a suitably worded agreement”, the court held that this was an enforceable settlement agreement. The fact that the parties could not agree the terms of the Tomlin order was irrelevant, since execution of the consent order was not a condition of the settlement. The fact that the defendant’s offer was not stated to be “subject to contract” indicated that it was an offer of terms capable of acceptance as it stood (Newbury v Sun Microsystems).

Litigation privilege

Where documents are created for a dual purpose - for example, documents produced on the instruction of liquidators who have statutory duties with regard to both the orderly collection of assets and the settlement of liabilities – they cannot be protected from disclosure by litigation privilege unless they were originally produced for the dominant purpose of the contemplated litigation (Tchenguiz v Serious Fraud Office).

Effect of “near miss” Part 36 offers

The view expressed in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd, that a costs penalty might be appropriate where one party made a Part 36 offer that was nearly sufficient and the other party rejected that offer outright without any attempt to negotiate, no longer applies to Part 36 and should not be applied as a special "near miss" rule under CPR 44.2(4)(c) (Hammersmatch Properties (Welwyn) Ltd v Saint-Gobain Ceramics and Plastics Ltd).

Relief from sanctions

A party was entitled to relief from sanctions under CPR 3.9 where it had made errors in providing electronic disclosure under an unless order. The defaults had been caused unintentionally by human error, their consequences had been temporary and they had not affected the scheduled trial date (Wyche v Careforce Group Plc).

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