On Tuesday 29 May (12:45 to 1:45 UK time) John Ogilvie, Matthew Bonye and Alex Oddy will present a live audio webinar on pre-action strategy. The session will explore strategic considerations before proceedings are commenced, including:
Filed under ADR, Announcements, Disclosure, Pre-action
We have published a new client guide to legal professional privilege under English law, comprising:
The guide is available both as an interactive PDF, with links to more detailed information and articles, and as a hard copy guide for clients. Click here (or on “privilege guide” on the top menu) to access the “Handy client guide to privilege” home page, or contact Christina Southgate if you would like a hard copy.
Filed under Announcements, Privilege
The Civil Procedure Rule Committee has approved an amendment to the Civil Procedure Rules (CPR) to introduce “costs management” procedures more widely from next April. Although the final versions of the relevant rule and practice direction have not yet been published, we understand that the procedures will apply to all multi-track cases commenced on or after 1 April 2013 in both the county court and the High Court.
The procedures will not, however, apply to the Commercial Court (unless the court orders that they should apply in a particular case). This is consistent with Lord Justice Jackson’s view, as stated in his final report following his costs review, that no case had yet been made out for introducing costs management in the Commercial Court. Continue reading
Filed under Costs
Our ADR team have today published their spring ADR e-bulletin, including reports on: a spate of UK mediation pilot schemes which signal steps towards compulsory court-annexed mediation; Lord Justice Jackson’s recent speech endorsing the role of ADR; international developments, with more and more countries adopting ADR as a central tenet of their civil justice systems; and English case law developments, with contrasting outcomes concerning costs sanctions for refusal to mediate. For more detail on these and other developments see the e-bulletin on our website.
Filed under ADR
The government’s Legal Aid, Sentencing and Punishment of Offenders Bill, which (among other things) implements key aspects of the Jackson reforms, yesterday received Royal Assent and so has become law. The changes being introduced under the Act include:
These provisions are expected to come into force in April 2013.
Filed under Funding
In a rare move, the Court of Appeal has stepped into the shoes of the trial judge and exercised the court’s discretion on costs, holding that a successful party was not unreasonable to refuse mediation and should not be penalised in costs on that basis: Swain Mason v Mills & Reeve (a firm) [2012] EWCA Civ 498.
The decision illustrates that a refusal to mediate may, in some circumstances, be justified. It is however a high-risk strategy, as an unreasonable refusal to mediate can carry significant costs penalties. Parties should not take such a decision lightly. Continue reading
On Tuesday (24 April) the government published its anticipated consultation on competition law private actions, including radical proposals for a new “opt-out” collective action for competition claims on behalf of both consumers and businesses in the Competition Appeal Tribunal (CAT).
Under an opt-out regime claims can be brought on behalf of a defined group, without the need to identify individual group members; all those who fall within the group will be bound by the result unless they actively opt out of the case. This is a significant departure from existing procedures for multi-party litigation in England and Wales, which generally require potential claimants to make a positive decision to opt in to the proceedings. (The one exception, for representative actions under Civil Procedure Rule (CPR) 19.6, is not widely used due to the strict test that applies, as confirmed by the Court of Appeal in the Emerald Supplies case - see e-bulletin.) Continue reading
Filed under Collective actions, Funding
A working party has been set up to consider the practical and policy issues arising from the planned introduction of contingency fees, or “damages based agreements” (DBAs) as they have more recently been called. The group, which was established by the Civil Justice Council (CJC), will look at some fundamental issues including whether there should be a limit to the percentage that lawyers can charge under DBAs in commercial cases, and whether and in what circumstances lawyers should be liable for adverse costs. The working party has been asked to report to the CJC by the end of July.
At our seminar on 19 January (Litigation: asset or liability? How contingency fees could change commercial litigation) Lord Justice Jackson outlined some of the detailed issues that are still to be worked out in relation to contingency fees and suggested that a working party might usefully be set up to consider those issues, similar to the CJC working group that produced the code of conduct for litigation funders (see post). That has now happened, and we await the group’s report with interest. Continue reading
Filed under Funding
The court has found that the majority of the arbitral tribunal was wrong to decline jurisdiction over a claim for equitable damages for breach of an obligation to arbitrate, in the latest decision in the long-running West Tankers dispute: West Tankers Inc v Allianz SPA & Generali Assicurazione Generali SPA [2012] EWHC 854 (Comm). The judgment leaves scope for a tribunal to award damages for a breach of an arbitration clause, or to grant an indemnity against any award made in parallel proceedings which exceeds the innocent party’s liability as established in the arbitration.
Subject to any appeal (for which permission has been granted) this case illustrates that a party facing parallel proceedings in breach of an arbitration agreement should consider amending its claim to include a claim for damages and/or a declaration for an indemnity as soon as the respondent brings parallel proceedings. Click here to read more about the decision on our arbitration blog.
Filed under Jurisdiction
The Commercial Court has stayed proceedings against an English domiciled defendant on the basis that the object of the proceedings was the validity of resolutions made by a Ukrainian company. In so doing, the court decided that the exclusive jurisdiction rules contained in Article 22 of the Brussels Regulation (EC No 44/2001) should be given “reflexive effect” in favour of non-EU state courts where the subject matter of the dispute falls within one of the grounds for exclusive jurisdiction provided for in Article 22: Ferrexpo AG v Gilson Investments Limited and ors [2012] EWHC 721 (Comm).
This is the first case in which an English court has ruled that it has the power to stay English proceedings brought against an English domiciled defendant where the dispute relates to the validity of decisions of the organs of a company situated in a non-EU state, in this case Ukraine. Although obiter, the Commercial Court also indicated that it would have a similar power to stay proceedings where the other party has commenced earlier proceedings in the non-EU state which are sufficiently related to give rise to a risk of conflicting judgments. The court expressly disapproved the earlier decision in Catalyst Investment v Lewinsohn [2009] EWHC 1964 (Ch), in which the court decided that it did not have the power to stay its proceedings in favour of earlier competing proceedings commenced in the US (see e-bulletin).
If this decision is followed by other courts (and subject to any appeal) this will mean a greater risk that parties may not be able to avoid “unfavourable” jurisdictions by suing an English “anchor” defendant if the foreign proceedings are commenced first or the subject matter of the dispute falls within one of the categories which justifies the foreign court exercising an exclusive jurisdiction. Continue reading
Filed under Jurisdiction
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Sonya Leydecker Global head of dispute resolution |
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Anna Pertoldi Partner |
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Maura McIntosh Professional support consultant |
