REUTERS | Ali Jarekji

CPRC Snippets: October 2017

Papers from the CPRC meeting on 6 October 2017 became publicly available on 7 November 2017.

The papers, including the programme of forthcoming CPRC work, again highlight just how busy the CPRC is, on a huge range of fronts. There are also hints about how it is often put under pressure to consider things at the last minute. Continue reading

REUTERS | Fred Thornhill

If there is one aspect of civil procedure that keeps lawyers awake at night (or if not lawyers, their clients), it is the sheer bulk and complexity of disclosure. It may be an exaggeration to say that the English disclosure regime is dysfunctional, but it certainly leaves a lot to be desired. The problem is not just the sheer bulk of disclosure required in an electronic age and the costs that flow from that. It is also the disruption caused to a business when document retention policies have to be suspended, old hard drives resurrected and thousands of files opened as part of a “reasonable search”. In addition to the mechanics of disclosure, there is also privilege to consider, of course, and the strict and sometimes counter-intuitive rules that have held sway in England for some 13 years now, since the Three Rivers litigation. Continue reading

REUTERS | Ilya Naymushin

In a commendable judgment dated 24 October 2016 in Premier Motorauctions v Pricewaterhouse Coopers, Snowden J injected a much needed dose of realism into an issue which had, for too long, suffered from a regrettable degree of uncertainty, namely security for costs applications against parties with after the event (ATE) insurance cover. Cases this year suggest that this is now a go-to authority for applications of this sort. Continue reading

REUTERS | Yusuf Ahmad

A simple question but one to which, until now, there has not necessarily been a simple answer.

The starting point itself is simple. At the end of a hearing or a trial, the court can make a costs order directing one party to pay the costs of the other party. If the proceedings have been concluded, for example by a judgment or settlement agreement, the costs can be quantified by detailed assessment straightaway (CPR 47.1). Alternatively, the court can order an immediate assessment by directing that “the costs be assessed and paid forthwith”. Absent such a direction, the receiving party must wait until the proceedings have concluded before any entitlement to have the costs assessed arises. Continue reading

REUTERS | Kim Kyung-Hoon

In Crowden v QBE, Crowden sought an indemnity under a professional indemnity policy issued by QBE. QBE successfully defended the claim based on an exclusion under the policy. This case serves as a useful reminder for insurers, brokers and policyholders of the importance of understanding the scope of insurance cover and the impact of exclusions on a contract of insurance. Continue reading

REUTERS | Phil Noble

The High Court has refused to grant an anti-suit injunction to restrain the defendant from pursing unfair prejudice proceedings in Hong Kong against:

  • Two companies that had signed contracts including exclusive jurisdiction clauses in favour of the English court.
  • Related companies within the same group (that had not signed up to the contracts containing English exclusive jurisdiction clauses).

This is an example of the English court not granting an anti-suit injunction where a group company (which is not subject to an exclusive jurisdiction clause) is also a party to foreign proceedings. Continue reading

REUTERS | Danish Ismail

Expert determination clauses have proved popular in all sorts of contracts. This is because they offer the prospect of a cheap and relatively fast way of resolving disputes, unlike clauses providing for the resolution of disputes by arbitration or court proceedings. If such clauses also provide that the expert need not give reasons for their decision, it also means, in effect, that it becomes extremely difficult for the losing party to appeal the decision on substantive grounds. The jurisprudential basis for expert determination clauses was placed on a firm footing in Jones v Sherwood, where the Court of Appeal held that as a matter of contract law, where two persons agree an expert determination clause, they are bound by the outcome if the determination is made by the expert honestly and in good faith, even if there has been a mistake in the determination. The Court of Appeal expressly rejected the earlier authorities that had treated such clauses as mere machinery for calculation that could be automatically overridden by the courts if it appeared to be wrong. In light of this seminal case, one might have thought that subsequent litigation concerning expert determination clauses would have been limited, save in cases where dishonesty or bad faith is alleged against the expert. However, there has been a spate of recent cases concerning the logically anterior questions of whether, as a matter of contract:

  • The expert has the jurisdiction (or put another way, has the authority) in fact to determine the dispute referred to them.
  • If so, the circumstances in which a party to the contract could potentially waive their right to refer such a dispute to an expert.

Chancellor Vos considered the second of these two issues in the February 2017 unreported Chancery Division case George Scarr-Hall v ISS (UK) Limited. Continue reading