REUTERS | David Mercado

The recent decision of the Solicitors Disciplinary Tribunal (SDT) to strike off Claire Matthews, a junior solicitor, after she left a locked briefcase on a train containing confidential client documents, concerned many within the legal profession. On 28 May 2020, the Law Society Gazette reported that the Solicitors Regulation Authority (SRA) had defended its decision, in a letter to the Junior Lawyers Division (JLD). Continue reading

REUTERS | Alexandre Meneghini

This time of enforced home working presents various difficulties to those working on contentious matters. How do you conduct remote hearings effectively? How do you interview witnesses effectively?

But a timely case reminds all litigation practitioners to take control of the disclosure process and, in particular, not to allow their clients to select the documents to be disclosed.

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In the September 2019 blog, we featured alternative dispute resolution (ADR), placing emphasis on the advance of guidance at High Court level and above, that parties to litigation, who ignore invitations to engage in ADR, do so at their peril as to the costs of the action, even if they win (see the blog and Halsey v Milton Keynes General NHS Trust and PGF II SA v OMFS). An unreasonable refusal to use ADR (described in the glossary to the CPR as a “Collective description of methods of resolving disputes otherwise than through the normal trial process”), is likely to lead to the imposition of penalties on the offender. This usually occurs in relation to mediation, the best known form of ADR, but it can also arise where there has been a failure to engage in early neutral evaluation (ENE) or a “without prejudice” joint settlement meeting (JSM). Continue reading

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Pursuant to CPR 44.2, the court may exercise its discretion to order one party to a claim to pay the costs incurred by another. While the general rule is that “the unsuccessful party will be ordered to pay the costs of the successful party”, the court may depart from this if it so chooses.

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In early May 2020, it was reported that the Financial Conduct Authority (FCA) intended to seek and obtain declaratory relief in order “to resolve contractual uncertainty in business interruption insurance cover” in response to the COVID-19 pandemic. The aim, according to the FCA, was to obtain an “authoritative declaratory judgment” that would “resolve some key contractual uncertainties” in policy wordings. This would provide a “basis” for determining payments under individual policies and for decisions by the Financial Ombudsman. Continue reading

REUTERS | Ilya Naymushin

Below I report the decision of the Court of Appeal in Flynn Pharma Ltd and Flynn Pharma Holdings Ltd v Competition and Markets Authority, concerning the circumstances in which a regulator who brings regulatory proceedings and loses should pay the successful party’s costs. This raises the wider question of whether regulators should enjoy virtual immunity from costs, and indeed regulation and accountability. Continue reading

REUTERS | ohannes P. Christo

The admissibility of passages in a position statement for mediation and the application of the established exceptions to the without prejudice (WP) rule were considered in the High Court decision in Berkeley Square Holdings and others v Lancer Property Asset Management Ltd and others. Continue reading

REUTERS | Alexandre Meneghini

This blog discusses the recent judgment by Foxton J in Lakatamia Shipping Company Ltd and others v Su and others, highlighting difficulties for a judgment creditor in enforcing a multi-million dollar judgment against a former billionaire shipping magnate, who was willing to go to prison rather than reveal assets for enforcement. It discusses some wider issues stemming from the judgment, such as electronic tagging, and provides commentary on what it might mean for enforcement of judgments in the future. It queries whether the remedy of allowing access to email accounts interferes too much with the defendant’s privacy rights (notwithstanding the safeguards which were put in place), whilst not necessarily offering any practicable assurances for the claimant. It highlights an underlying concern of the enforceability of judgments as a policy issue.

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