- July 5, 2019
Anomalies in the English law of privilege: a triumph of form over substance
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.
- January 15, 2019
Discussing settlement options: minding the gap between litigation privilege and the without prejudice rule
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.
- July 10, 2018
Damages-based agreements: a chance to make them work?
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? →
- January 15, 2018
Litigation funding: does the cap fit?
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.
- July 12, 2017
Testing the waters: CPRC approves new wording for hot-tubbing Practice Direction
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 →
- May 9, 2017
Contractual interpretation: continuity rather than change?
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.
- January 17, 2017
Conduct of claims alleging employee wrongdoing: is there a duty of care?
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?
- August 1, 2016
A plunge into the hot tub: Civil Justice Council report on concurrent expert evidence
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 →
- March 11, 2016
Common interest privilege: common misconceptions
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 →
- September 15, 2015
A future for Damages-Based Agreements? Civil Justice Council recommendations for reform
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.
- July 14, 2015
Legal advice privilege: is there light after Three Rivers?
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? →