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
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.
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
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.
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 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.
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.
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
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?
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.
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?
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.
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?
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.
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.
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.
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.
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
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.
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.
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
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?
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?
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
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.
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
The UK government is going to be rather busy in the next few years, negotiating with the EU over a myriad of Brexit issues.
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 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
Having the benefit of a unilateral jurisdiction clause is, on the face of it, a good thing for your client.
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.
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?
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
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.