Latest by Davina Given

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Litigation privilege: whose privilege?

Published on 15 March 2018. By Davina Given, Partner and Christopher Whitehouse, Associate

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The claimants, companies in the corporate group of the mining company MMG, applied to inspect certain documents created in foreign proceedings over which the defendants, companies belonging to the mining company Glencore, asserted litigation privilege.

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Privilege: A welcome respite from ENRC?

Published on 05 February 2018. By Davina Given, Partner and Mafruhdha Miah, Trainee Solicitor

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Are interviews held with employees to prepare a report intended to deter a governmental authority from taking legal action privileged?

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Documents from which legal advice can be inferred – are they privileged?

Published on 28 December 2017. By Christopher Whitehouse, Associate and Davina Given, Partner

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The High Court considered the extent to which legal advice privilege could attach to documents which were not communications of legal advice between lawyer and client but from which privileged legal advice could be inferred and held that privilege could indeed apply to such documents. The test is whether there is a "definite and reasonable foundation" for such an inference to be made as opposed to material that would merely make the reader speculate what the legal advice was.

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Ghosh test overturned: dishonesty according to the standards of ordinary, reasonable and honest people

Published on 14 December 2017. By Sarah Shaul, Associate and Davina Given, Partner

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The Supreme Court has held that the test for dishonesty should be assessed only by reference to whether or not the defendant's conduct is dishonest by the objective standards of ordinary, reasonable and honest people. The Court concluded that there were convincing grounds for holding that the second limb of the longstanding Ghosh test did not correctly represent the law and that directions based upon it ought no longer to be given. The Court further stated that the assessment of dishonesty in criminal and civil proceedings should be made by reference to the same test.

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The Proceeds of Crime Act 2002: harsh but fair?

Published on 05 May 2017. By Davina Given, Partner

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A recent case highlights the dilemma of businesses whose assets are frozen as suspected proceeds of crime.

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Lessons learned from Property Alliance Group v RBS

Published on 25 April 2017. By Daniel Hemming, Senior Associate and Davina Given, Partner

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This article assesses the key aspects of the High Court's judgment and considers their implications for similar claims.

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Guidance on the "cardinal rule" for implying terms

Published on 21 April 2017. By Ed Holmes, Associate and Davina Given, Partner

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In Irish Bank Resolution Corp Ltd (In Special Liquidation) v Camden Market Holdings Corp the Court of Appeal held that a term could not be implied into an agreement because, although it was linguistically consistent, it was substantively inconsistent with the express terms. In doing so, the court shed further light on the application of the "cardinal rule" that an implied term must not contradict any of the express terms of the contract.

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Cultural Property (Armed Conflicts) Act 2017: what do collectors and dealers need to know?

Published on 19 April 2017. By Davina Given, Partner

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The UK Parliament has recently passed the Cultural Property (Armed Conflicts) Act 2017. Although the provisions of the Act have not yet come into force, how will this impact collectors and dealers?

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The law of unintended consequences

Published on 12 April 2017. By Victoria Sugden, Senior Associate and Davina Given, Partner

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Why professional indemnity insurers should closely examine losses in professional negligence claims

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Prior arbitral award – abuse of process?

Published on 30 March 2017. By Davina Given, Partner

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Michael Wilson & Partners Limited v Sinclair and others [2017] EWCA Civ 3 demonstrates the interplay between arbitration and litigation, considering whether legal proceedings commenced by A against C are an abuse of the court's process where arbitration proceedings between A and B have decided the issue in question. The Court of Appeal held that a prior arbitration award can found an argument that subsequent litigation against a third party is an abuse of process, but will rarely do so. On the facts of this case, the claim was not considered to be an abuse of process.

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