Practical Law

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 … Continue reading Massive overdisclosure: bucking the trend →

Where the court is to hand down a reserved judgment, the parties and their legal representatives ordinarily do not have to wait until the judgment is made public to find out the result. They are given a sneak preview, on confidential terms, usually a couple of days beforehand. This is usually referred to as receiving … Continue reading Draft judgments: navigating the embargo →

New requirements for the preparation of witness evidence in the Business and Property Courts (B&PCs) have been introduced in the form of Practice Direction (PD) 57AC and Appendix, and apply to all trial witness statements signed on or after 6 April 2021. A key feature of the new regime is the requirement, at paragraph 3.2 of … Continue reading Witness evidence and refreshing memory: virtue or vice? →

The Civil Procedure Rule Committee (CPRC) has, in principle, agreed an amendment to the rules governing service out of the jurisdiction after the end of the Brexit transition period. The amendment will remove the need for the court’s permission to serve out where the claim falls within a choice of court agreement in favour of … Continue reading Jurisdiction clauses and service out post-Brexit: a welcome rule change →

On Tuesday 22 September 2020, Flaux LJ (Chair of the Disclosure Working Group) published an update on the operation of the Disclosure Pilot Scheme (DPS). It was accompanied by the long-awaited publication of the Third Interim Report on the DPS, dated 25 February 2020 and prepared by Professor Rachael Mulheron (of Queen Mary University of … Continue reading Disclosure Pilot Scheme: a potential way forward? →

Damages-based agreements (DBAs) have been available to fund civil litigation in England and Wales since 2013, when they were introduced as part of the Jackson reforms. But in practice, they are still a rare breed. The reluctance on the part of the legal profession to embrace DBAs is generally attributed to difficulties with their implementation, … Continue reading Damages-based agreements and termination: a small chink of light →

It has been clear for some time that a third party who funds litigation on commercial terms may be ordered to pay the costs of the winning defendant if the funded claim is unsuccessful. What was less clear, until recently, was the extent of that liability, and in particular whether it is subject to a … Continue reading Funders’ liability for adverse costs: scrapping the cap →

With the imminent passing of the European Union (Withdrawal Agreement) Bill, the UK is set to leave the EU on 31 January 2020 at 11.00 pm GMT under the terms of the revised withdrawal agreement of 19 October 2019 negotiated by Boris Johnson. That agreement provides for a transition period until the end of 2020, … Continue reading Enforcement of judgments between the UK and the EU post-Brexit: where are we now? →

A proposed redraft of the much-criticised 2013 regulations governing damages-based agreements (DBAs) has recently been published and has been broadly welcomed by practitioners. The redraft is a joint effort by Professor Rachael Mulheron of QMUL and Nicholas Bacon QC, who were invited by the Ministry of Justice (MoJ) to conduct an independent review of the … Continue reading Redrafted DBA Regulations: a promising basis for reform →

As is widely recognised, and often repeated, legal professional privilege serves an important public interest. It allows parties to take professional legal advice, and to prepare for and conduct litigation, without the fear that what they say as part of that process will come back to haunt them later.

In WH Holding Ltd v E20 Stadium LLP, the Court of Appeal rejected a claim to litigation privilege in respect of emails between a company’s board members discussing a commercial proposal for the settlement of a dispute.

It is now more than eight years since Sir Rupert Jackson published the final report in his Civil Litigation Review, which recommended sweeping reforms to how litigation is funded. It is more than five years since those reforms were implemented, in large part, via Part 2 of the inaptly named (for these purposes) Legal Aid, … Continue reading Damages-based agreements: a chance to make them work? →

In recent years, third party funding has gradually entered the mainstream in English litigation. Arrangements that would once have been struck down as offending against public policy, in the form of the historic rules against trafficking in litigation known as champerty and maintenance, are now accepted and indeed endorsed by lawyers and judges.

Almost a year ago, on 1 August 2016, the Civil Justice Council (CJC) published its report on concurrent expert evidence, also known as “hot-tubbing“. The report was prompted in part by a perception that, despite the potential benefits of hot-tubbing, the procedure had not been widely used since it was formally introduced into English civil … Continue reading Testing the waters: CPRC approves new wording for hot-tubbing Practice Direction →

To the casual observer, it may seem that the English courts’ approach to interpreting contracts has been in something of a state of flux in recent years, with contrasting decisions at the highest levels.

The starting point is that a party to litigation is entitled to conduct that litigation in the way it believes will best serve its own interests. But is that always the end point?

One of the lesser discussed aspects of the Jackson reforms was the formal introduction of concurrent expert evidence, aka “hot-tubbing“, as an optional procedure to be adopted at the discretion of the court. As described in PD 35.11, it involves hearing evidence concurrently from the experts in a particular discipline, with the judge initiating the … Continue reading A plunge into the hot tub: Civil Justice Council report on concurrent expert evidence →

Common interest privilege is, in my view, the great red herring of English law. The term is often used in circumstances where it is inapt or unnecessary, and as a result it causes a great deal of confusion. In this blog post I will set out, and hopefully dispel, what I see as some common … Continue reading Common interest privilege: common misconceptions →

The introduction of DBAs (aka contingency fees) in April 2013 was one of the headline-grabbing aspects of the Jackson reforms. For the first time, lawyers would be able to conduct litigation or arbitration in England and Wales in return for a share of the winnings.

In its recent judgment in CITIC Pacific Limited v Secretary for Justice and Commissioner of Police (unreported, 29 June 2015) the Hong Kong Court of Appeal (HKCA) rejected the much-criticised approach to legal advice privilege under English law, as established by the Court of Appeal in Three Rivers District Council v Bank of England (Three … Continue reading Legal advice privilege: is there light after Three Rivers? →