Litigation Brief | “I reserve my rights”, liability creep, legal privilege

Written on 13 Feb 2020

Welcome to the latest edition of Osborne Clarke’s Litigation Brief.

This edition includes the second in our series of articles on parent company liability. The article looks at the ways in which the “economic torts” are being used more and more in commercial disputes to seek to impose liability on shareholders, directors and parent companies.

We also look at recent case law on how to effectively reserve your rights during a dispute, what to look out for when drafting a settlement agreement and how best to protect sensitive documents from being shown to the other side once litigation is in contemplation.

A video by Ian Hyde, partner in our Disputes and Risk team, explains what drives tax disputes and how they differ from commercial litigation.

Finally, we have a Q&A on arbitration and the video gaming industry.

If you would like to discuss any of the issues raised in this edition of Litigation Brief, please contact one of us. Our contact details are set out below.

‘Liability creep’ | Economic torts widening the net for claimants

Unclear lines of authority and decision-making can expose corporates to liability for the actions of other group companies where there are allegations of intentional wrongdoing.

The second in our series of insights focussing on ‘liability creep’ looks at the increasing use of economic torts as a way of bringing claims against group companies other than those with which the claimant contracted.

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“I reserve my rights!” | But do you really?

Parties frequently write in their correspondence with each other that they are reserving their rights. The hope is that this formula will protect them against an argument that they did not intend to (or have actively chosen not to) raise a particular argument or defence or assert a particular right – and so have foregone the right to do so in future.

There are various principles of English law that such an opponent may seek to rely on: waiver, estoppel, election or affirmation. Does a “reservation of all rights” sentence in correspondence really protect against all of those arguments?

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Protecting communications once litigation is in contemplation

A judicial trend narrowing the interpretation of litigation privilege can be claimed poses challenges for litigants looking to protect sensitive communications regarding the dispute. Board members simply discussing an amount to offer the other side might not be able to claim litigation privilege. But if, during those same discussions, one director gave “advice or information” about the offer, would that be enough to cloak the discussion with litigation privilege?

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A cautionary tale on drafting settlement agreements

A settlement agreement is invariably the product of negotiations. Without prejudice privilege protects written communications made during those negotiations from being disclosed. If the negotiations succeed though, and a settlement agreement is concluded, that agreement is not covered by WP.

A recent case has now held that other WP communications also cease to be privileged if they are referred to in the settlement agreement.

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Q&A | Arbitration and the video gaming industry

As part of a series of insights looking at what is shaping the agenda for the interactive entertainment industry in 2020, Greg Fullelove, co-head of Osborne Clarke’s International Arbitration Group, explains why arbitration is seen as an attractive option for the video games industry, particularly by those concerned about the potential impact of Brexit.

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Straight to the point of dispute resolution | What’s different about tax disputes?

As part of our “straight to the point of dispute resolution” video series, Ian Hyde, tax disputes partner at Osborne Clarke, talks to Adrian Lifely about what drives tax disputes and how they differ from commercial litigation.

Watch the video >