REUTERS | Yuya Shino

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 London), who has been monitoring the DPS from its start in January 2019. The update also outlined a number of proposed amendments to the DPS, which are expected to be considered by the Civil Procedure Rule Committee at its October 2020 meeting.

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REUTERS | Copyrighted

Bust the costs budget in an action in which the court has made a costs management order (CMO) under Civil Procedure Rule (CPR) 3.15? To be as certain as you can be that any excess above the agreed or last approved costs budget will be recovered at a subsequent detailed assessment under CPR 47.14, what should you do?

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REUTERS | Copyrighted

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 Group’s report was published in December 2019, and made various recommendations, including that an authoritative statement of best practice should be prepared. A draft of that statement has now been prepared by the Working Group, in the form of a draft PD 57AC and Appendix, and was published in advance of the Commercial Court’s first online seminar on 7 September 2020. The draft will be considered in due course by the Business and Property Courts Board and the Civil Procedure Rule Committee.

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REUTERS | Christian Charisius

In Traxys Europe SA v Sodexmines Nigeria Limited and Basem El Ali, Teare J provided helpful guidance on how the court will balance the burden of proof and assess the usual competing factors when determining the forum conveniens for a claim. The court also considered how exclusive jurisdiction clauses may apply to a contracting party’s alter ego.

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REUTERS | Copyrighted

Since its introduction in 2012, CPR 81, an unhappy, complex and repetitive mix of procedural and substantive law, has been subject to significant criticism. As Dame Victoria Sharp (President of the Queen’s Bench Division) noted in Attorney-General v Yaxley-Lennon, at paragraph 97, it had “been examined and found wanting” on a number of occasions. Following work by the Civil Procedure Rule Committee (CPRC) in 2019 and a public consultation earlier this year (the 2020 consultation), it is to be replaced in its entirety on 1 October 2020.

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REUTERS | Paul Hanna

We have been living with budgeting and costs management for over seven years. There have been some unpleasant growing pains as practitioners have learnt the sometimes harsh reality of the significance of the rules, and a failure to comply with them.

I have been surprised that, whilst practitioners have adjusted to the need of budgeting, there is still a significant lag in the willingness to engage with the second part of the process: costs management. There appears to be relief once the first costs and case management conference (CCMC) has taken place and the budget is approved. Time to mop the brow and put the budget at the back of the file until the case concludes.

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REUTERS | Jason Reed

Is the litigation funding industry under existential threat?

That’s certainly what some are suggesting following recent events in Australia, which culminated in the enactment of legislation headlined, “Litigation funders to be regulated”. While that may seem an overreaction to what is regulation only for Australia class actions (and who can blame them given the recent boom of this market?), the inquiry into litigation funding by the Australian Parliamentary Joint Committee on Corporations and Financial Service laid bare a deeper objection to the industry. And the transcripts seem to add weight to claims that there are global commercial interests wanting to limit the influence of (or in the words of one funder, “destroy”) litigation funding.

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Fortunately, most people are never involved in a major legal dispute. However, not everybody is so lucky and it’s not uncommon for a claimant to enlist the help of lawyers to seek redress. Frequently they are also supported by the capital of litigation funders, but how should a claimant select a litigation funder? Continue reading