In July 2022, the Ministry of Justice (MoJ) released a consultation on Increasing the use of mediation in the civil justice system, which outlines proposals for mediation to be a compulsory element of all small claims track County Court proceedings. This would extend to all claims under £10,000 that were in the small claims track as well as personal injury and housing disrepair claims, although at the lower small claims track level for this type of litigation.
Clients increasingly ask for “alternative fee” options, and most lawyers are now well-versed in discussing litigation funding as a part of that. In contrast, litigation insurance remains under-utilised and I suspect this is due to a misunderstanding that its role is limited to adverse costs (or after the event (ATE)) cover).
Litigation insurance does so much more. (While this blog focuses on coverage for litigating parties at various stages of a claim, another key area is coverage for the risks faced by lawyers themselves, for example, insuring law firms when they act on contingent fees such as damages-based agreements (DBAs).)
In March 2020, as one judgment memorably put it, the world shifted on its axis. As part of this shift, electronic working came to the fore, driven by necessity and now recognised as a permanent feature of the landscape for users of the English courts. Communication – and service – by email was, of course, a feature long before the pandemic. However, amid all the changes brought about by remote working, the rules on service have remained – for now – unchanged. Cases continue to come thick and fast highlighting the ease with which parties and legal representatives alike can fall foul of those rules, the most recent example being R (Karanja) v University of the West of Scotland.
Over a year in, there has been guidance emerging from the courts, at first instance, as to the approach to taking witness statements under the new PD 57AC. There are five key points that are worth highlighting.
It has been observed that guideline hourly rates are just that – guidelines and not tramlines; in other words the courts are free to depart from them.
That view is now barely sustainable following a number of recent decisions, including two in the Court of Appeal.
Recent years have seen the English courts make a number of significant rulings in the law governing the application of legal professional privilege.
Whilst the pace slowed slightly this year, 2022 has seen the courts hand down interesting decisions concerning: the use of privileged documents lawfully obtained in foreign proceedings; the privilege attaching to the identity of individuals instructing a solicitor; the specificity required for a claim to be reasonably in contemplation; the limits of without prejudice privilege; and the use of privileged documents by a solicitor in litigation against their former client (technically a 2021 case, but delivered shortly before the winter holiday and interesting enough to justify inclusion).
This post provides an overview of the most important privilege decisions so far this year, noting the key takeaways for practitioners.
The recent Court of Appeal decision in Spire Property Development LLP and another v Withers LLP helps clarify the scope of the duty owed by a solicitor when providing legal advice outside of an agreed retainer and also serves as a useful reminder to solicitors on how to avoid the risk of litigation when responding to informal enquiries.
At the root of the Law of Costs lies the indemnity principle. If a solicitor acts for a client in a case and wins, the losing opponent’s liability to pay the winner’s costs cannot exceed the sum which the client is liable to pay the solicitor. This is a principle which goes back to the days of Queen Victoria (see Harold v Smith). Thus, if the solicitor says to the client, “Don’t worry, it won’t cost you a penny because we shall collect our costs from your opponent when you win”, there are no costs to indemnify and by operation of the indemnity principle, the loser’s liability is nil. On the other hand, if the solicitor says “Don’t worry, this will not cost you more than £10,000”, the client has an obligation to pay, which means that on a win, the loser will be liable to pay up to (but no more) than £10,000 in costs if the court makes a costs order in favour of the client.
The Frankfurt offices of Deutsche Bank and its asset management unit, DWS, were recently raided by the German police investigating claims of greenwashing. Within days, DWS’ chief executive, Asoka Woehrmann, had stepped down and investigations continue in the US and Germany. Right now, this seems to be an extreme example of how greenwashing claims can play out for financial services firms. But, this may be just the start and financial services firms have much to think on in respect of their ESG (environmental, social and governance) responsibilities. In this blog, we consider how greenwashing claims pose a risk in the context of ESG or sustainable funds.
Change is on the horizon, in the form of compulsion to mediate civil disputes. In the meantime, the ebb and flow of a judicial policy of “encouragement” and “sanction” continues.
The court’s efforts at encouragement have fortunately not taken the extreme form contemplated in 2013 in Wright v Michael Wright Supplies:
“You may be able to drag the horse (a mule offers a better metaphor) to water, but you cannot force the wretched animal to drink if it stubbornly resists. I suppose you can make it run around the litigation course so vigorously that in a muck sweat it will find the mediation trough more friendly and desirable. But none of that provides the real answer.”
(Paragraph 3, judgment.)