Kavitha Gupta's blog

  “I reserve my rights!”: But do you really? Written on 12 Feb 2020 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? Too vague to be effective At the beginning of 2019, the Court of Appeal held in the case of  Bresco v Michael J Lonsdale  that a purported reservation of the "right to raise any jurisdictional and/or other issues, in due course, whether previously raised or not and whether within the forum of adjudication or other proceedin...

Supreme Court upholds rule against penalties and provides new test Emily Parris 04/11/2015 After much speculation that the Supreme Court would either abolish the rule against penalties or narrow its scope to exclude commercial bargains, today the Supreme Court has unanimously upheld the validity of the rule while reformulating it. Cavendish Square Holding BV (Appellant) v Talal El Makdessi (Respondent); ParkingEye Limited (Respondent) v Beavis (Appellant)  [2015] UKSC 67. The rule against penalties is a longstanding rule under English law, based on public policy, that a contractual provision is invalid and unenforceable if it seeks to  punish  a party for failing to comply with the contract, i.e. if it is penal in nature. Until recently, the courts have rarely had to apply the rule to anything other than straightforward liquidated damages clauses. As more complex cases have come before the courts, the test for determining whether a contract provision is pe...

Avoid Overpaying for Software Settlements by Keli Johnson Swan Jan 19, 2017 Most software audits initiated by the software publisher or a third party entity authorized to pursue copyright infringement claims on behalf of the software publishers, such as the BSA| The Software Alliance (“BSA”) or the Software & Industry Information Association (“SIIA”), are resolved outside of a courtroom.  Many of the settlements require payment of a monetary penalty as part of the resolution. There are many factors that precede the negotiation stage and affect the total payment. Once a company decides to participate in the audit and submits audit results, the BSA or SIIA identify any gaps in software licensing, according to the auditing entity’s rules. These gaps may range from a deficiency of licenses to acquiring the incorrect license for the software installed. Once the auditing entity determines the number of gaps, it calculates a total settlement based on the information p...