Massive overdisclosure: bucking the trend
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
Injunctions against “Persons Unknown”: uncertain territory
The past few years have seen a significant increase in cases where claimants commence an action and obtain an injunction against “Persons Unknown”, who are defined by reference to their actions or role in respect of the alleged conduct. Such orders can be extremely useful to claimants, allowing them to enlist the assistance of the … Continue reading Injunctions against “Persons Unknown”: uncertain territory
Expansion of jurisdiction gateways coming soon
The Civil Procedure Rule Committee has approved a number of new jurisdiction gateways in PD 6B, as well as amendments to existing gateways, aimed at filling in perceived gaps in the current rules or, in some cases, clarifying their meaning. The changes are expected to come into effect in October this year and some of … Continue reading Expansion of jurisdiction gateways coming soon
Compulsory ADR: a commercial litigation perspective
“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 … Continue reading Compulsory ADR: a commercial litigation perspective
Draft judgments: navigating the embargo
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
(Non) alternative dispute resolution in UK civil courts: has its day finally come?
At the risk of adding to crystal-ball gazing about the post-pandemic legal landscape, it is hard to resist speculating that mediation may ultimately join the list of things that have been available for many years but took the nudge of the pandemic to be embraced widely and come into their own. A perfect storm of … Continue reading (Non) alternative dispute resolution in UK civil courts: has its day finally come?
Witness evidence and refreshing memory: virtue or vice?
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?
New rules on trial witness statements from 6 April 2021: what should you be doing now?
On 6 April 2021, new rules on witness evidence (through a new Practice Direction 57AC and accompanying Appendix with statement of best practice) will come into force in the Business and Property Courts (B&PCs). As I commented in my earlier blog post, this is no mere tinkering with the existing rules. Important changes are being made to … Continue reading New rules on trial witness statements from 6 April 2021: what should you be doing now?
Does the Hague Choice of Court Convention 2005 apply to asymmetric jurisdiction clauses?
With the transition period following the UK’s exit from the EU having ended on 31 December, and no information on whether, and if so when, the UK might join the Lugano Convention 2007, attention has turned squarely to the Hague Convention on Choice of Court Agreements 2005. Where this Convention applies (that is, where there … Continue reading Does the Hague Choice of Court Convention 2005 apply to asymmetric jurisdiction clauses?
Jurisdiction clauses and service out post-Brexit: a welcome rule change
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
Disclosure Pilot Scheme: a potential way forward?
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?
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 … Continue reading Preparing witness evidence: significant changes proposed for Business and Property Courts
Damages-based agreements and termination: a small chink of light
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
Dealing with the COVID-19 pandemic: are your emails privileged?
The COVID-19 pandemic has brought with it huge challenges for businesses dealing with ever more difficult trading conditions, while trying to safeguard the health and safety of employees and customers. All of this against a background of rapidly changing law, regulation and guidance.
Funders’ liability for adverse costs: scrapping the cap
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
Enforcement of judgments between the UK and the EU post-Brexit: where are we now?
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?
Redrafted DBA Regulations: a promising basis for reform
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
The new Singapore Convention: some practical issues to consider now
The Singapore Convention (Convention) has received widespread attention since it was signed on 7 August 2019. Not only did its tally of 46 first-day signatories break the record for any United Nations trade convention, it also included the world’s two largest economies, China and the US.
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.
Exclusive English jurisdiction agreements agreed before no-deal Brexit may not come within Hague Choice of Court Convention
In a worrying recent development, guidance has been issued by the European Commission which suggests exclusive English jurisdiction agreements entered into between October 2015 and exit day may not, in the case of a no-deal Brexit, come within the Hague Convention on Choice of Court Agreements 2005.
Brexit extension until 31 October 2019: what are the key points for disputes?
In the latest twist and turn of the Brexit rollercoaster, the UK and the EU have agreed a further extension of Article 50 until 31 October 2019; Halloween, as many have pointed out.
Open justice: rule changes to increase transparency in the civil courts
From 6 April 2019, a number of changes to the Civil Procedure Rules will come into effect with the intention of reinforcing the principle of open justice and clarifying how it operates within the civil justice system. While some of those changes simply bring the rules into line with principles established in case law, there … Continue reading Open justice: rule changes to increase transparency in the civil courts
No-deal Brexit and disputes: what do parties need to know?
A no-deal Brexit could never be ruled out as a possibility, but the volatile political climate in recent days and weeks has brought it, and the challenges it poses, into ever sharper focus. So what would a no-deal Brexit mean for disputes and what questions should a business be asking its lawyers to advise on?
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.
The new Singapore Convention: will it be the New York Convention for mediation?
We are soon to have a new international regime for the enforcement of mediated settlement agreements, which it is hoped will achieve for mediation what the New York Convention has for international arbitration. The UN Convention on International Settlement Agreements Resulting from Mediation was finally approved in June 2018 by UNCITRAL (the United Nations Commission … Continue reading The new Singapore Convention: will it be the New York Convention for mediation?
Choosing a jurisdiction clause with Brexit on the horizon
What jurisdiction clause should you choose with Brexit looming on the horizon? Well, unfortunately, I can’t give you a solution which will be perfect in every circumstance. As lawyers are fond of saying, it is going to depend on the particular facts.
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?
Privilege and the cherry-picking rule: when it does (and doesn’t) apply
If you choose to waive privilege over a selection of documents, it is well known that the waiver may extend further than you intended. This is the principle of “collateral waiver” or, more colloquially (and descriptively), the cherry-picking rule.
Alternative dispute resolution reform: one size does not fit all
In 2016, the Civil Justice Council (CJC) established an Alternative Dispute Resolution (ADR) Working Group, whose broad mandate is “to maintain the search for the right relationship between civil justice and ADR” and to promote debate over possible changes.
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.
Don’t forget: the Recast Brussels Regulation can apply to non-EU defendants
It is easy to fall into the trap of thinking that the Brussels jurisdiction regime applies to EU domiciled defendants and the common law rules apply to everyone else.
Choice of law clauses: when you don’t get (just) the law you bargained for
Certainty and predictability are key considerations for any party entering into a commercial contract, and a key factor in this regard is knowing what law will be applied by a court called on to enforce the contract. Certainty as to the applicable law not only enables parties to anticipate how the contractual terms may be … Continue reading Choice of law clauses: when you don’t get (just) the law you bargained for
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
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.
Choice of law and jurisdiction post-Brexit: business as usual so far?
Last week we had two reports from Parliament on justice and Brexit. The House of Lords EU Committee came in first, with its report on 20 March. The House of Commons was not far behind, with the report of the Justice Committee published on 22 March.
Obtaining the evidence from the United States: section 1782 orders
The US statutory procedure known as “section 1782” can allow a litigant in non-US proceedings to obtain what is tantamount to full US-style discovery from a US based entity, for use in the foreign proceedings. This can be particularly valuable to litigants in jurisdictions that have limited procedures for disclosure of evidence, such as many … Continue reading Obtaining the evidence from the United States: section 1782 orders
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?
Taking steps without submitting to the jurisdiction: how far can you go?
As a junior litigator in the 1990s, it was drummed into me that if you were challenging the jurisdiction of the English court, you should be very, very careful not to do anything in the proceedings other than bring that challenge. If you didn’t heed this advice, the court would likely find that your client … Continue reading Taking steps without submitting to the jurisdiction: how far can you go?
Supreme Court finds solicitor’s liability to litigation funder excluded under professional indemnity policy
The Supreme Court handed down a judgment last week which held that an insurer, AIG, was not liable in its capacity as a professional indemnity (PI) insurer of the law firm, Barrington, for its contractual liability to a litigation funder, Impact Funding Solutions (Impact). This reversed the earlier Court of Appeal judgment which had allowed … Continue reading Supreme Court finds solicitor’s liability to litigation funder excluded under professional indemnity policy
Changes to appeal rights and processes: a step too far?
Amid the currently crowded landscape of reform processes and proposals affecting the civil justice system in England and Wales, one set of reforms, that has perhaps stayed further below the radar than might have been expected, are the proposals aimed at addressing the serious delays being experienced in the Court of Appeal’s Civil Division.
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
Enforcing judgments in the EU post Brexit
The UK government is going to be rather busy in the next few years, negotiating with the EU over a myriad of Brexit issues.
Drafting settlement agreements: do you know what claims you’re releasing?
A crucial part of any agreement recording the settlement of a dispute is the description of the releases being given by one or both parties as part of the settlement. A key issue for the parties to consider is whether the releases should extend to future claims and, in particular, claims that are unknown at … Continue reading Drafting settlement agreements: do you know what claims you’re releasing?
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
Unilateral jurisdiction clauses: weighing the risks
Having the benefit of a unilateral jurisdiction clause is, on the face of it, a good thing for your client.
Legal advice privilege: not just for legal advice
A recent High Court decision has provided reassurance to both lawyers and clients as to the scope of legal advice privilege, after an earlier decision (by a different judge) in the same case had arguably suggested a narrower scope for LAP than had been generally accepted.
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.
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?
New Insurance Act 2015: be prepared
The new Insurance Act 2015 paves the way for the most significant changes to English insurance contract law in over a century. The Act comes into force in August 2016 but all those involved in the placing and underwriting process – risk managers, brokers and (re)insurers – should take note now to ensure they are … Continue reading New Insurance Act 2015: be prepared
Enforcing foreign judgments: traps for the unwary
In the first of our guest posts by members of the dispute resolution team at Herbert Smith Freehills, Anna Pertoldi looks at the traps involved in enforcing foreign judgments.
