REUTERS | Copyrighted
September 24, 2020

Preparing witness evidence: significant changes proposed for Business and Property Courts

REUTERS | Copyrighted
September 24, 2020

Preparing witness evidence: significant changes proposed for Business and Property Courts

The way witness statements are prepared for trials in the Business and Property Courts is set to change substantially, if proposals in a new draft Practice Direction (PD) and Appendix are adopted.

The proposals arise out of the work of the Witness Evidence Working Group, set up in 2018 to consider possible reforms. The Working Group’s report was published in December 2019, and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the Working Group, in the form of a draft PD 57AC and Appendix, and was published in advance of the Commercial Court’s first online seminar on 7 September 2020. The draft will be considered in due course by the Business and Property Courts Board and the Civil Procedure Rule Committee.

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REUTERS | Christian Charisius
September 23, 2020

Jockeying for position: determining forum conveniens

In Traxys Europe SA v Sodexmines Nigeria Limited and Basem El Ali, Teare J provided helpful guidance on how the court will balance the burden of proof and assess the usual competing factors when determining the forum conveniens for a claim. The court also considered how exclusive jurisdiction clauses may apply to a contracting party’s alter ego.

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REUTERS | Copyrighted
September 22, 2020

Simplifying CPR 81: contempt of court

Since its introduction in 2012, CPR 81, an unhappy, complex and repetitive mix of procedural and substantive law, has been subject to significant criticism. As Dame Victoria Sharp (President of the Queen’s Bench Division) noted in Attorney-General v Yaxley-Lennon, at paragraph 97, it had “been examined and found wanting” on a number of occasions. Following work by the Civil Procedure Rule Committee (CPRC) in 2019 and a public consultation earlier this year (the 2020 consultation), it is to be replaced in its entirety on 1 October 2020.

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REUTERS | Paul Hanna
September 17, 2020

Costs management: “teeing off” for the autumn

We have been living with budgeting and costs management for over seven years. There have been some unpleasant growing pains as practitioners have learnt the sometimes harsh reality of the significance of the rules, and a failure to comply with them.

I have been surprised that, whilst practitioners have adjusted to the need of budgeting, there is still a significant lag in the willingness to engage with the second part of the process: costs management. There appears to be relief once the first costs and case management conference (CCMC) has taken place and the budget is approved. Time to mop the brow and put the budget at the back of the file until the case concludes.

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REUTERS | Jason Reed
September 15, 2020

Addressing the existential threat to litigation funding

Is the litigation funding industry under existential threat?

That’s certainly what some are suggesting following recent events in Australia, which culminated in the enactment of legislation headlined, “Litigation funders to be regulated”. While that may seem an overreaction to what is regulation only for Australia class actions (and who can blame them given the recent boom of this market?), the inquiry into litigation funding by the Australian Parliamentary Joint Committee on Corporations and Financial Service laid bare a deeper objection to the industry. And the transcripts seem to add weight to claims that there are global commercial interests wanting to limit the influence of (or in the words of one funder, “destroy”) litigation funding.

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REUTERS |
September 3, 2020

Considering litigation funding for the first time? What questions should you ask a potential funder?

Fortunately, most people are never involved in a major legal dispute. However, not everybody is so lucky and it’s not uncommon for a claimant to enlist the help of lawyers to seek redress. Frequently they are also supported by the capital of litigation funders, but how should a claimant select a litigation funder? Continue reading →

REUTERS | Danish Siddiqui
September 2, 2020

Avoiding the procedural pitfalls of defective service on individuals: Ivanchev v Velli

It is a familiar tale: a dispute arises; claimant issues claim; claimant serves claim. But what do you do if the identity and address of an individual defendant is unknown? In the recent judgment of Ivanchev v Velli, the High Court revisited this all too common chink in a claimant’s armour: effecting proper service of both a claim form, and an application notice, where no address is given for the defendant in accordance with the Civil Procedure Rules (CPR).

The judgment reminds us of how to avoid the procedural pitfalls of defective service of a claim form and other documents on individuals.

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REUTERS |
September 1, 2020

Civil litigation funding agreements: Part 2: damages-based agreements

The single potential benefit of damages-based agreements (DBAs) is that it is a form of out and out contingency fee agreement (see also Part 1), that is taking a percentage of damages, which is available for contentious work, and thus can be used once proceedings have been issued, in contrast to a contingency fee agreement under section 57 of the Solicitors Act 1974, which cannot be used once proceedings have been issued. Continue reading →