Litigation and Alternative Dispute Resolution

Authors: Edward H. Rosenthal and Barry Werbin

If there be … no law now to cover the savage and horrible practices, practices incompatible with the claims of the community in which they are allowed to be committed with impunity to be called a civilized community, then the decent people will say that it is high time that there were such a law.

Thus opined the New York Times on August 23, 1902, commenting on the “savage and horrible practice”—then permitted by the New York Court of Appeals—of allowing Franklin Mills Company to get away with photographing and distributing lithographic prints of little Abigail Roberson as part of an ad campaign for Franklin Mills Flour, which described her as the “Flour of the Family.” Abigail’s mother was quite upset and sued on behalf of her minor daughter for damages and injunctive relief.

Read more: A Historical Retrospective on New York’s Right of Privacy Law: 115 Years of New York Court of...

Author: Simon Hough

The recent decision of the Technology and Construction Court in Palmer Birch (A Partnership) v Lloyd & Anor [2018] EWHC 2316 (TCC) (24 September 2018) will make for interesting reading both for those who seek to hide behind the corporate veil provided by a limited company and those who find themselves out of pocket as a result of that protection. 

The circumstances in which the protection offered by a limited company will be removed and the corporate veil lifted were considered by the Supreme Court a few years ago in Prest v Petrodel Resources Ltd & Ors [2013] UKSC 34. In that case, the Supreme Court decided that the veil should only be lifted where a private individual had an existing liability that he or she sought to avoid by subsequently making use of a limited company. However, there is more than one way to fix a private individual with liability for the debts of his company, as the TCC has now clarified.

Read more: Peeking around the corporate veil

A shadow has been cast over the seemingly well-accepted ability of courts to make common fund orders in third-party funded representative proceedings. The New South Wales Court of Appeal is to determine whether the Supreme Court has the power to make such orders. This determination coincides with a challenge by Westpac in its application for leave to appeal Justice Lee’s decision in Lenthall v Westpac Life Insurance Services Limited [2018] FCA 1422.

Partner, Anne Freeman, Special Counsel, Susanna Khouri and Law Clerk, Amir Chowdhury provide an update.

Read the entire article.

Author: Tilbe Birengel


At the 2016 Annual Meeting of the Administrative Council, the International Centre for Settlement of Investment Disputes ("ICSID") launched an amendment process on its' rules and regulations ("ICSID Rules and Regulations"). This has been the fourth amendment process since 1984, 2003 and 20061.

As per Article 6 of the ICSID Convention, the amendments will only be effective upon the approval of two-thirds of the contracting states2. Hence, ICSID invited contracting states and the public3 to provide their amendment suggestions on topics worthy of consideration, which will be used as background papers throughout the process.

Read more: Amendment of ICSID Rules and Regulations

Author: David Moore

In a recent unreported case in the County Court at Central London (Sajid v Nuur, 30 July 2018), a Claimant (Landlord) had brought a claim against a Defendant (a former Tenant) and attempted to serve the claim at an address which the Claimant knew the Defendant had left some two years before. It could be fair to say the Landlord should well have known – as it was his own property!

The claim itself was for rent arrears which the Claimant Landlord (C) alleged the Defendant Tenant (D) owed under a tenancy agreement for the property D had rented from C. 22 months after D had moved out of C's property, C issued a Claim Form for the unpaid rent.

C then served the Claim Form at the property, knowing D had left nearly 2 years previously, and quickly obtained default judgment for D's failure to defend the claim (of which she was unaware).

In a later appeal against the default judgment, D argued that the Claim Form had not been properly served under the requirements of the Civil Procedure Rules 1998 ("CPR").

Read more: Good Service is more than just Good Business