22 February, 2012

Recent case law on expert determination

There has been a spate of recent case law relating to expert determination. In this post James Farrell, Emily Lew and Michael Mendelblat consider three judgments in which the court had to decide whether to stay legal proceedings in favour of expert determination, namely the Court of Appeal decision in Barclays Bank PLC v Nylon Capital LLP [2011] EWCA Civ 826 (see also our September 2011 ADR e-bulletin), and two High Court decisions that considered Barclays: Persimmon Homes Limited v Woodford Land Limited [2011] EWHC 3109 (Ch) and Wilky Property Holdings Plc v London & Surrey Investments Ltd [2011] EWHC 2888 (Ch) (see also our January 2012 ADR e-bulletin).

Whilst there is some indication that the courts are reluctant to oust the jurisdiction of the court by way of a wide expert determination clause, each case is likely to turn on its own facts and the construction of the particular clause in question. Continue reading →

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20 February, 2012

Moves toward greater use of judicial docketing

One of Lord Justice Jackson’s recommendations, in his January 2010 report on civil litigation costs (see our 14 January 2010 e-bulletin), was that cases should be assigned wherever possible to designated judges who have relevant expertise and, so far as possible, a case should remain with the same judge – the practice known as “docketing”. This recommendation has not received a lot of attention since publication of the report, but it is now clear that it is to be implemented with the bulk of the Jackson reforms from April 2013.

Docketing will not, however, be introduced across the board. It will not normally be appropriate for small or fast track claims, or for straightforward multi-track cases. As a general rule, the more specialist or complex the multi-track claim, the more appropriate it will be to docket it. The question will generally be addressed at the allocation stage, although docketing may occur later in the life of a claim. Practice Guidance, and the use of standard multi-track directions which include docketing, will be issued with a view to ensuring an appropriate and consistent approach. Continue reading →

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10 February, 2012

Government’s proposals to encourage ADR in smaller disputes

The government response has been published to its consultation on “Solving disputes in the County Courts: creating a simpler, quicker and more proportionate system”, which asked for views on compulsory mediation information sessions, automatic referral to mediation, and extension of the provisions in the Mediation Directive to domestic disputes (see our June 2011 ADR e-bulletin).

The proposals the government intends to take forward relating to ADR include introducing automatic referral to mediation for all small claims (the limit for which is to be increased from £5,000, initially to £10,000). The government does not plan to take forward the proposal to introduce compulsory mediation information sessions for higher value claims. Continue reading →

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6 February, 2012

European Parliament softens stance on EU class actions

In a resolution adopted on 2 February 2012 in response to the Commission’s 2011 consultation “Towards a coherent European approach to collective redress”, the European Parliament has taken a markedly less negative approach to the question of EU action on collective redress than had been expressed in its Committee for Legal Affairs’ draft report last July. The draft report stated that the Commission had not put forward convincing evidence that action was needed at EU level to ensure that victims of unlawful behaviour were compensated (see post). In contrast, the final version approved by the Parliament simply asks the Commission to demonstrate in its impact assessment that action is needed at EU level, pursuant to the principle of subsidiarity, and the overall tone is much more welcoming of a possible EU instrument on collective redress.

Importantly, however, the European Parliament continues to oppose an “opt-out” class action mechanism stating: “a collective redress system where the victims are not identified before the judgment is delivered must be rejected on the grounds that it is contrary to many Member States’ legal orders and violates the rights of any victims who might participate in the procedure unknowingly and yet be bound by the court’s decision”. Continue reading →

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3 February, 2012

Changes to procedures for assessment of costs

The Civil Procedure Rule Committee has approved amendments to implement Lord Justice Jackson’s recommendations relating to the assessment of costs, as outlined in his lecture “Assessment of costs in the brave new world”. The changes will come into force on the general implementation date for the Jackson reforms, now planned for April 2013, and will include the following: Continue reading →

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2 February, 2012

Concurrent expert evidence (“hot-tubbing”) recommended as optional procedure

An interim report on the Manchester concurrent evidence pilot has concluded that this technique should be available as an optional procedure which can be adopted if the judge so directs (i.e. whether or not the parties agree).

The technique, which developed in Australia and is known colloquially as “hot-tubbing”, involves hearing evidence concurrently from the experts in any particular discipline. At trial, the experts are sworn in at the same time and the judge chairs a discussion between the experts. Counsel join in the discussion and can put questions to the experts, as and when permitted by the judge, and the experts can put questions to each other. Continue reading →

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1 February, 2012

Implementation of Jackson reforms put back to April 2013

The government has announced that implementation of the Jackson reforms, originally expected in October this year, will be postponed to April 2013. The announcement was made on Monday as the House of Lords started to debate the relevant provisions in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Bill. The government had already announced that the legal aid provisions in Part 1 of the Bill would be implemented in April 2013, subject to parliamentary approval, and there had been some speculation that implementation of the Jackson reforms would slip as well. The changes being introduced under the Bill include: Continue reading →

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26 January, 2012

Court of Appeal upholds pro-arbitration decision in West Tankers

In an eagerly awaited judgment, the Court of Appeal has upheld the High Court’s decision to enforce a declaratory arbitral award under section 66 of the English Arbitration Act 1996: West Tankers Inc v Allianz SPA & Generali Assicurazione Generali SPA [2012] EWCA Civ 27. Enforcement under section 66 allows a judgment to be entered in the terms of the award – in this case, a declaration of non-liability. It remains unclear, however, whether the resulting judgment could be used to prevent the recognition of any inconsistent foreign judgment in England (under article 34 of the Brussels Regulation, EC Regulation 44/2001). 

In its 2008 ruling in this case, the European Court of Justice ruled that it was inconsistent with the Brussels Regulation for a court of a Member State to issue an anti-suit injunction to prevent proceedings being brought in another Member State in breach of an arbitration agreement. The recent Court of Appeal decision provides a possible alternative to an anti-suit injunction, and goes some way to ensuring that arbitration agreements will be upheld.

Click here for our arbitration group’s e-bulletin on the decision.

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26 January, 2012

Court of Appeal takes broad view of “control” for disclosure purposes

The Court of Appeal has held that in determining whether documents in the possession of a third party are in a litigant’s control, and therefore fall within its disclosure obligations, the court must have regard to the true nature of the relationship between the litigant and the third party. Where there was reasonable ground to infer that the trust was a device to put the litigant’s assets beyond the control of creditors, and the trustees would take whatever steps the litigant wished in the administration of the trusts, the court was entitled to view documents in the physical possession of the trustees as within the litigant’s control. This was akin to agency, so that the litigant could properly be seen to have a right to possession of the documents: North Shore Ventures Ltd v Anstead Holdings Inc & Ors [2012] EWCA Civ 11.

The Court of Appeal went so far as to say, albeit obiter, that the definition of “control” under CPR 31.8 is not exhaustive, so that a document may be within a party’s control even if it does not fall within the sub-paragraphs of that rule, i.e. the party has neither physical possession of the document, nor a right to possession of it, nor a right to inspect or take copies of it. For example, the court said, if the parties to the arrangement had caused the documents to be held in a jurisdiction whose laws would preclude the third party from handing them to the litigant, it would still be open to the English court to find that as a matter of fact the documents were within the latter’s control. This view may be seen as surprising, and could lead to some uncertainty, although in practice the courts are unlikely to broaden the boundaries of “control” far beyond the categories set out in CPR 31.8. Continue reading →

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25 January, 2012

Litigation: asset or liability? How contingency fees could change commercial litigation

On Thursday 19 January, Herbert Smith hosted a seminar to discuss how anticipated changes to the costs and funding regime are likely to change the litigation landscape for those who bring and defend claims.

Following introductory remarks by litigation partner Ted Greeno, there was an address by Lord Justice Jackson, the architect of the reforms that will (amongst other things) allow lawyers to conduct litigation on the basis of contingency fees, also known as “damages based agreements” (DBAs).

Presentations were also given by: Leslie Perrin, chairman of litigation funder Calunius Capital and of the newly formed Association of Litigation Funders of England and Wales; Matthew Amey, a director of The Judge, a broker specialising in after-the-event (ATE) insurance and litigation funding; John Kunzler, a senior product manager at Travelers Insurance; Charles Plant, chair of the Solicitors Regulation Authority (SRA) Board, and a consultant to and former partner of Herbert Smith; and Michael Napier, who was until very recently chairman of Irwin Mitchell and also chaired the Civil Justice Council working party that developed the new code of conduct for litigation funders. These were followed by a panel discussion chaired by Ted Greeno.

Some key points emerging from the presentations and discussion included: Continue reading →

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