In a recent decision, the High Court held that legal advice taken in relation to certain transactions was not protected by privilege, as there was prima facie evidence that the purpose of the advice was to structure the transactions in a way that avoided the client’s liability to pay local authority care charges and/or as a transaction defrauding creditors: London Borough of Brent v Kane [2014] EWHC 4564 (Ch).

The Court of Appeal has held that claimant liquidators were in breach of an “unless order” for e-disclosure, overturning the High Court’s decision that there was no breach despite the mistaken omission of certain important categories of documents from the list:Smailes v McNally [2014] EWCA Civ 1296. The result was that the liquidators’ claim was struck out.

In the context of joint liquidators’ applications for documents “belonging to” the company or “relating to” its affairs (under sections 324 and 326 of the Insolvency Act 1986), the High Court confirmed that English law applied to determine whether documents could be withheld by the Luxembourg lawyers who were respondents to the application.

The Court of Appeal has held that a settlement agreement, in which the defendant acknowledged that a debt was payable in full and agreed the mechanics and timing of payments, had the effect of excluding the defendant’s right of equitable set-off: IG Index Ltd v Ehrentreu [2013] EWCA Civ 95. The claimant was therefore entitled to summary judgment on the debt. The defendant however remained free to pursue his cross-claim for damages against the claimant.

The government has clarified which claims will benefit from the continued recoverability of CFA success fees and ATE insurance premiums, following its announcement in May last year that there would be a two-year delay to implementation of this aspect of the Jackson reforms for “insolvency proceedings” (see post).

In the case of Coughlin v. South Canaan Cellular Investments, LLC, C.A. No. 7202-VCL (Del. Ch. July 6, 2012), Respondents made a request for fee shifting under the bad-faith exception to the American Rule.  In reviewing this fee shifting request, the Court found that Respondents’ request itself was unfounded, and coupled with Respondents’ own conduct in the case, instead awarded Petitioner his fees in costs in the amount of $17,906.

In the case of Wagamon v. Dolan, C.A. No. 5594-VCG (Del. Ch. Apr. 20, 2012), the Court of Chancery reviewed Defendant William Krieg’s motion for summary judgment pursuant to Court of Chancery Rule 56.  This dispute involves the winding up of a joint venture, Internet Working Technologies, Inc. (“INT”) owned by Allan Wagamon and David B.