REUTERS | Jim Urquhart
REUTERS | Jim Urquhart

For more than two decades, the courts have struggled to meet the challenges posed by an ever-increasing volume of electronic documents. English litigation has long embraced a “cards on the table” approach, under which parties have to disclose documents relevant to the dispute so that the court can decide the issues from a position of knowledge, rather than ignorance. But in an age where a major dispute may throw up hundreds of thousands, if not millions, of potentially relevant documents, such an approach can lead to huge costs unless some way is found to control the process.

In seeking to reduce the costs of disclosure, the direction of travel has (understandably) been to try to limit the amount of documentation that must be reviewed and disclosed. In general terms, that was the aim of the changes to disclosure implemented by the Woolf reforms in the late 1990s, the Jackson reforms almost ten years ago, and the disclosure pilot which began in 2019 and has recently been adopted as a permanent practice direction for the Business and Property Courts (at PD 57AD).

But the court’s decision in Genius Sports Technologies Ltd v Soft Construct (Malta) Ltd   bucks that trend. In that case the court ordered the “massive overdisclosure” of documents, taking the view that this would both improve the process and save costs as compared to a more traditional approach. This post considers the merits and practicalities of such an approach and concludes that, in most cases, the downsides are likely to outweigh any potential benefits.

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REUTERS | Pavel Mikheyev

HH Judge Pearce’s judgment in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd is important reading for all those involved in preparing and certifying witness statements. It gives a clear warning about the risks:

  • For a party if it relies on a witness statement that confirms the witness’s understanding that “it is not my function to argue the case, either generally or on particular points” but nevertheless does so. The judge may not place much reliance on the witness’s evidence, as well as the risk of adverse findings on costs.
  • For the lawyer who signs the certificate of compliance for such a statement. Naming and shaming is the shorthand term. That means the publicly available judgment will name the lawyer involved and criticise their performance in clear terms.

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REUTERS | Alexandros Avramidis

The Chancellor of the High Court, Sir Julian Flaux, delivered the 2022 Combar lecture on 16 November 2022, in which he stated that the “commercial landscape is changing, and the law will need to develop with it”.

Climate litigation has been tracked globally by the London School of Economics and Political Science (LSE), who reported that cases have more than doubled since 2015 with a quarter being filed between 2020 and 2022, against both government and corporate entities. The LSE also reported that many of the recent cases share a common theme in highlighting the most important issues as discussed by the international community at COP26, including to increase awareness and motivation to achieve net-zero emissions.

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REUTERS | Shailesh Andrade

In a post-Brexit first, the Commercial Court has granted an anti-suit injunction (ASI) in relation to proceedings issued in an EU member state. Ebury Partners Belgium SA/NV v (1) Technical Touch BV; and (2) Jan Berthels also provides a useful refresher on the key principles relating to the incorporation of standalone terms into a contract.

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REUTERS | Luisa Gonzalez

This blog wraps up the key privilege updates for 2022 following on from the earlier post Legal professional privilege: 2022 so far. If you have not read that, it’s a good place to start. Two of the cases discussed in the earlier post have been to the Court of Appeal (spoiler alert: appeals dismissed).

Whilst this term has not seen the blockbuster decisions of recent years, the English courts have continued to grapple with thorny privilege issues, including on the issues of accidental disclosure, formalities for a claim of privilege, whether privilege can be backdated to documents following legal advice, and waiver.

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REUTERS | Phil Noble

The recent case of Motorola Solutions, Inc and another v Hytera Communications Corporation Ltd and others is a helpful reminder to all parties of the care that needs to be taken in relation to the rules of service of proceedings within the jurisdiction on a defendant’s solicitor, and in particular on the scope of acceptance of service.

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REUTERS | Amira Karaoud

Lord Justice Birss is a man with a lot of influence over the world of costs right now. Not only is he the Deputy Head of Civil Justice, but he also chairs the Civil Procedure Rule Committee and the Civil Justice Council’s (CJC) current costs review.

So he had a lot to talk about when addressing the Association of Costs Lawyers’ annual conference in London at the beginning of November. He did not disappoint. He talked about the choices the CJC working group is facing – he listed some of the many, many reform suggestions received in relation to costs budgeting – without indicating which way it is going. But it was when he went on to talk about three “bugbears” with the current costs system that he gave more of an idea of his thinking.

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REUTERS | Gary Hershorn

A multi-national, well-resourced corporate approaches your firm about a large, cross-border dispute which seems to have strong merits and will keep a litigation team busy for the next few years. That all sounds like a good day in the office until the client starts to ask about managing the costs and risks of running the case. They have the cash to pay legal bills, but they face internal pressures from management to constrain legal spend; there is concern over how to justify to shareholders the drain on the company’s financial resources over the next few years and the inherent risk of that spend not being recovered if the case loses.

The obvious suggestion is to advise the client to move the case “off balance sheet” by seeking funding: a third party will pay the legal bills, leaving the client’s cash available for investing in the business itself, and the financial risk of loss is taken on by the funder. However, lawyers should be actively helping clients to consider other approaches to managing their objectives and internal pressures.

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REUTERS | Yves Herman

The Marex tort

I doubt there is a word to describe the joy of discovering a tort you have not heard of before (five possible words are “need to get out more”), but if there is, I experienced it recently.

The tort in question is the snappily-named “inducing or procuring another to act in wrongful violation of rights under a judgment”. The first judge affirmatively to recognise the existence of this tort was Knowles J in Marex Financial Ltd v Sevilleja, and in view of the full name he gave it, it is perhaps not surprising that it has become known as “the Marex tort” (which is also how I will refer to it in this blog).

Marex of course became much better known as the leading modern authority on the principle of reflective loss, following the decision of the Supreme Court on that aspect of the case. But this other, lesser-known contribution it made to the legal landscape is arguably the more far-reaching.

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REUTERS | Louafi Larbi

A different costs system with digitisation, vulnerable court users and a properly functioning civil justice system at its heart is the goal of a Civil Justice Council’s (CJC) working party, which recently closed its wide-ranging consultation on areas for possible reform.

As the group of lawyers with the most direct experience of the issues, the ACL has responded in detail to the consultation following extensive member consultation.

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