Posts from Herbert Smith Freehills

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.