Jonathan Hitchin

Publications: 25 FEBRUARY 2020

A misprediction is not a mistake: settlement not set aside despite change in law

A change in the law made shortly after a compromise agreement was entered into did not give rise to a common mistake of law capable of setting aside the agreement.  The High Court held that while the doctrine of mistake operates in the context of compromise agreements, there was no “common assumption” between the parties as to the relevant law in this case and therefore no mistake.  The court observed that “a mistake will more likely arise where a well-established and unquestioned rule of law is dramatically overturned than where a single decision on a new and difficult point is overruled”.  The decision highlights the reluctance of the English courts to disturb already concluded settlements on the basis of a future revision of the law: Jeremy Philip Elston v (1) Lawrence King (2) Sue Roscoe (trustees in bankruptcy of Jeremy Philip Elston) [2020] EWHC 55 (Ch).

Publications: 25 FEBRUARY 2020

Legal advice privilege subject to “dominant purpose” test – how to deal with multi-party email communications

The dominant purpose of a communication must be to obtain, or give, legal advice for legal advice privilege to apply.  The Court of Appeal considers how, in the light of this, to analyse privilege and internal multi-party email communications between in-house lawyers and non-lawyer employees. Three Rivers No. 5 is criticised but acknowledged to be binding: The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of) [2020] EWCA Civ 35.

Publications: 25 FEBRUARY 2020

Time limits for damages claims based on public law breaches during rail franchise procurement

This case highlights the very different, and often very strict, time limits that apply in different private law and public law claims.  Rejecting the Secretary of State’s attempt to strike out part of the claims against it, the Court of Appeal confirmed that the six-year time limit for damages claims applies to a procurement conducted outside the Public Contracts (and similar) Regulations.  However, the three- month judicial review time limit may apply to other private law claims in this context.  The decision highlights the importance of considering time limits when challenging, or defending, public body decision-making.  Where the public law act engages private law rights, damages and other remedies may still be available where the time limits for judicial review have passed – provided that judicial review is not being sought by the back door: Secretary of State for Transport v Arriva Rail East Ltd & ors [2019] EWCA Civ 2259.

Publications: 25 FEBRUARY 2020

Oil and gas joint venture parties not bound by good faith or rationality when discharging operator

Parties to an unincorporated oil and gas joint venture were free to act in their individual best interests in deciding whether to discharge another party from its operator role.  No duty of good faith or rationality applied: (1) Taqa Bratani Ltd; (2) Taqa Bratani LNS Ltd; (3) JX Nippon Exploration and Production (UK) Ltd; and (4) Spirit Energy Resources Ltd v Rockrose UKCS8 LLC [2020] EWHC 58 (Comm).