Kavitha Gupta's blog

How to scope your internal investigations: another debate on privilege Newsletters May 23 2017 | Contributed by RPC Only months after its decision in Re the RBS Rights Issue Litigation , (1) the High Court has provided another landmark judgment reaffirming the narrow scope of legal professional privilege. (2) In proceedings between the Serious Fraud Office (SFO) and Eurasian Natural Resources Corporation Limited (ENRC), ENRC unsuccessfully attempted to protect documents created during internal investigations into suspected bribery and corruption, claiming legal professional privilege. Facts While expanding its operations into Africa in 2009/2010, ENRC became aware of unsubstantiated allegations of corrupt practices by target companies that it sought to acquire and the individuals behind those entities. Accordingly, it instructed DLA Piper LLP (DLA) and then Dechert LLP to investigate allegations of "corruption and financial wro...

October 27, 2016 A Liquidated Damages clause does not oust the need to prove the loss: Bombay HC In a claim for liquidated damages, evidence has to be led in support of the same, and such a claim shall be granted on consideration of the basic principles for grant of liquidated damages. Relying on precedents, the High Court has reaffirmed that (a) the amount stipulated as liquidated damages has to be a reasonable compensation and a genuine pre-estimate of damages; (b) should not exceed the amount so stated, or the penalty so prescribed; The actual loss or injury has to be proved for claiming liquidated damages, and such burden may be dispensed with only when actual damage from breach of contract cannot be proved or calculated.  Introduction Recently in Raheja Universal Pvt. Ltd. ( “Appellant” ) v. B.E. Bilimoria & Co. Ltd. 1 ( “Respondent” ), the Bombay High Court ( “High Court” ) elaborated on the scope and implications of liquidated damages under Section ...

A recent judgment of the US court has held that claims for losses incurred for a data breach is a consequential damage and is barred under the Disclaimer of Liability clause dealing with indirect and consequential damages - Interesting update on Indirect and direct damages. Recent Case Highlights The Dangers Of Consequential Damage Waivers in IT Contracts By Matthew Spohn (US) and David Navetta (US) on September 26, 2016,  Norton Rose Fulbright US LLP The U.S. Court of Appeals for the Eleventh Circuit —one of the highest federal courts below the Supreme Court—recently affirmed a decision in Silverpop Systems, Inc. v. Leading Market Technologies, Inc. finding that all damages flowing from a vendor’s data breach were barred by a standard provision in IT service contracts, disclaiming all liability for consequential damages. The court’s analysis could apply to almost any breach of data provided to a vendor under an IT service contract, and highlights the need to carefull...

Negotiating Software Contracts – Successfully Negotiating a Limitation of Liability By Scott & Scott, LLP Limitation of Liability ranks as one of the most important contract provisions in a software contract. The limitation of liability limits each party’s liability for all sorts of harm. A software provider’s liability is usually limited to the amount of fees paid to the vendor or a fraction thereof. The risk in not negotiating these terms is that the licensee is capped at the amount of damages. A “cap” is the aggregate upper limit for direct damages associated with a party’s liability. The cap on liability can be a specific dollar amount, but in many contracts the “cap” is tied to the amounts paid for the products or services purchased. This cap may not equate to the actual amount of harm of the licensee. Therefore, successfully negotiating a limitation of liability becomes the key point in finalizing the contract. But, what exactly are the pitfalls when negotiat...

Punitive damages awarded for breach of contract Rajah & Tann Singapore LLP prev next Singapore December 7 2015 Introduction Ordinarily, damages for breach of contract are compensatory in nature. However, certain jurisdictions have recognised the concept of punitive damages for breach of contract, where the breach is so oppressive that additional damages are awarded as a form of „punishment‟. In the recent case of Ai rtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2015] SGHC 307, the Singapore High Court confirmed that punitive damages are in fact available for breach of contract in Singapore law. The Plaintiff in this matter was successfully represented by Tan Chuan Thye S.C., Avinash Pradhan and Alyssa Leong of Rajah & Tann Singapore LLP. Punitive Damages The Plaintiff had purchased a 300 tonne reel drive unit (“ RDU ”) from the Defendant for offshore use. However, there was a major failure of the RDU, and after consider...