We are now one year into the operation of PD 57AC – the practice direction on trial witness statements which came into force on 6 April 2021. Unlike many other new practice directions, the first year has seen a reasonable number of cases on PD 57AC before the court. This post looks at some of the key themes that have come out of the cases on PD 57AC in the past year.
In the recent case of Owners of the Panamax Alexander v Registered Owners of the NYK Falcon, the defendant managed to obtain an order for security for costs despite culpable delays. What then, does this mean, for the timing of such applications?
In Danisz v Persons Unknown and Huobi Global, the High Court granted the claimant (a Bitcoin-holder) an interim proprietary injunction against persons unknown and a cryptocurrency exchange, a worldwide freezing order against persons unknown, and a banker’s trust order against the cryptocurrency exchange, following a suspected cryptocurrency fraud.
The case is similar to Ion Science Ltd v Persons Unknown (unreported, 21 December 2020), which also involved fraudsters operating with what appeared to be a crypto investment company and absconding with the invested funds. Analysis of that decision and the key recent crypto cases can be found in RPC’s blog: Cryptocurrencies: basic legal principles and their future in English law.
Danisz further demonstrates the court’s willingness to provide swift injunctive relief to combat cryptocurrency fraud, and the ease with which English law continues to be applied successfully to cryptocurrency claims.
Background
The recent case of Abu Dhabi Commercial Bank PJSC v Shetty raised the question of whether section 1140 of the Companies Act 2006, when used in conjunction with the “necessary or proper party” gateway under PD 6B.3.1(3), has an “exorbitant and arbitrary” effect.
“It is no longer enough for judges to think that their role begins and ends with hearing the evidence, the legal argument and delivering judgment. We are not just there to referee a fight, we are there to break it up.” – Sir Geoffrey Vos, Master of the Rolls.
That recent pronouncement by the Head of Civil Justice captures his vision for a civil justice system in which the potential for out-of-court resolution is placed at the heart of the system and is in no sense an “alternative” to it. (While this has recently prompted a move away from ADR as an umbrella term, I will continue to use it here for consistency.)
“If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both”.
So said Lord Denning in Packer v Packer, probably the greatest judge of England and Wales in the twentieth century. And if an example is needed about doing something that has never been done before, look no further than the judgment of the Supreme Court in Bott and Co v Ryanair, in which the majority (Lords Briggs and Burrows, and Lady Arden) outnumbered the minority (Lord Leggatt and Lady Rose) in holding that Bott could assert a solicitors’ equitable lien over compensation payable by the Irish airline, Ryanair, to the firm’s clients where flights had been delayed or cancelled.
On 20 January 2022, Anthony Meltzer QC handed down a judgment following a 12-day trial in November 2021, awarding the claimant damages in excess of £1.6 million for her minor traumatic brain injury. But of particular significance to instructing solicitors and expert witnesses, were his comments regarding the conduct of two of the experts for the defence, warning them against forming opinions of the claimant that suggest a level of unconscious bias.
This case was heard by the Court of Appeal and the lead judgment was given by Carr LJ (approved by Snowdon and Asplin LJJ), who considered when, how and why an application for civil contempt of court may be an abuse of process.
The unprecedented sanctions imposed on Russia by the international community in the wake of the invasion of Ukraine have had a significant impact on international commercial relationships. Where the performance of contractual obligations may be affected by sanctions, contracting parties are having to look carefully at the force majeure (FM) provisions in their contracts, just as they did as the global impact of the pandemic developed.
Two recent decisions of the High Court, in actions involving high-profile parties, shine a spotlight on the duties of both parties and their legal representatives when it comes to disclosure.