REUTERS | REUTERS/Louafi Larbi

With the transition period following the UK’s exit from the EU having ended on 31 December, and no information on whether, and if so when, the UK might join the Lugano Convention 2007, attention has turned squarely to the Hague Convention on Choice of Court Agreements 2005.

Where this Convention applies (that is, where there is an exclusive jurisdiction clause in favour of the courts of a contracting state), the position regarding jurisdiction and enforcement between the UK and the EU is similar (although not identical) to the position under the Recast Brussels Regulation (1215/2012) (RBR). A court must accept jurisdiction where it is the chosen court (and more importantly decline jurisdiction when it is not) and it must enforce judgments from other Convention countries, with limited defences to enforcement available.

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REUTERS | GCS

The defence of illegality has long been considered available to negligent practitioners where an underlying fraud has been committed by their clients, but the courts have shown they are no longer willing to let lawyers or their insurers use it as a get out of jail free card.

In a unanimous judgment handed down by Lord Lloyd-Jones last month, the Supreme Court considered the defence of illegality in Stoffel & Co v Grondona, developing the Court of Appeal’s application of the principles set down in the Supreme Court’s decision in Patel v Mirza.

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REUTERS | REUTERS/John Sibley

From 1 January 2021, lenders may reconsider whether it is desirable to include in their finance documents “asymmetric” or “one-way” jurisdiction clauses that grant English courts exclusive jurisdiction to decide disputes, subject to the option of the lender to sue the borrower in any other jurisdiction it wishes. Such clauses are widely used in financial instruments such as loan agreements, their aim being to ensure that creditors can always litigate in a debtor’s home court, where the debtor’s assets are located, or anywhere else a creditor might prefer, and to reassure a creditor that it can only be sued in its preferred jurisdiction.

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REUTERS | GCS

The second part of this blog post looks at Lavender J’s reasons, in Belsner v Cam Legal Services Ltd, for allowing Ms Belsner’s appeal against District Judge Bellamy’s decision in which he had found that “informed consent” to the deduction of a success fee was not required where the solicitor relied on CPR 46.9(2), and that the retainer documentation was sufficiently clear that the client could be charged more than the costs of recovery from the losing defendant.

The background to and facts of this decision were explored in the first blog post which can be read here.

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REUTERS | Kai Pfaffenbach

Under CPR 31.22, a party to whom a document has been disclosed may only use it for the purpose of the proceedings in which it has been disclosed. There are some limited exceptions to this, the most important (for our purposes) being that the court may grant permission for the disclosure to be used for a collateral purpose.

There are obvious policy reasons behind CPR 31.22: disclosure is an invasive process and litigants have a legitimate entitlement to a degree of privacy. This is all the more important where it is not intended that the disclosing party will play a role in the resulting proceedings, as is generally the case under the Norwich Pharmacal jurisdiction. The court will therefore only exercise its discretion to permit the collateral use of disclosed documents where it is in the interests of justice having regard to all the circumstances of the case.

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REUTERS | Miguel Vidal

Many lawyers face a dilemma while applying for litigation funding and insurance: how should they treat an unexpected mediation mid-application? While mediation is an important opportunity for any client, it can raise complicated questions on whether to put the funding and insurance applications on hold and try to settle or secure a funding arrangement while there is still an offer of funding on the table.

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REUTERS | REUTERS/Gonzalo Fuentes

On behalf of the Practical Law Dispute Resolution team, we would like to extend a massive thank you to all of our contributors for their stellar pieces this year and to you for reading. We wish you all a joyful festive period and a safe and prosperous New Year.

Should you find yourself short of festive legal reading over the holidays, we will continue to publish blogs to feed your curiosity on a variety of civil litigation and dispute resolution topics, so do keep your eyes out!

REUTERS | REUTERS/Jason Lee

It is commonplace in commercial transactions for communications to be marked “subject to contract”. The extent to which the label has effect in settlement negotiations was put to the test in Joanne Properties Ltd v Moneything Capital Ltd and another, where the Court of Appeal provided guidance on this, particularly whether agreement that the qualification is expunged may be necessarily implied.

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