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Court of Appeal finds no litigation privilege in internal emails discussing commercial settlement of dispute
09 January 2019The Court of Appeal has allowed an appeal by West Ham football club in its application to inspect certain emails sent internally amongst board members of E20 Stadium LLP (“E20”) and between E20’s board members and stakeholders, in respect of which E20 asserted litigation privilege. The emails were created with the dominant purpose of discussing the commercial settlement of E20’s dispute with West Ham over the club’s rights to use the London Olympic Stadium when litigation was in contemplation. The Court held that litigation privilege does not extend to documents concerned with the settlement or avoidance of litigation where the documents neither: (a) seek advice or information for the purpose of conducting litigation; nor (b) reveal the nature of such advice or information.
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Litigation privilege and the ‘dominant purpose’ test: ENRC decision applied
07 January 2019Did last year’s landmark Court of Appeal decision in Serious Fraud Office (“SFO”) v Eurasian Natural Resources Corporation Limited (“ENRC”) alter the application of the ‘dominant purpose’ test for litigation privilege where a document is brought into existence for multiple purposes, one of which is for use in litigation? The answer is ‘no’, according to a recent decision by the High Court. The Court confirmed the well-established principle that, for a claim to litigation privilege to succeed where a document is created for more than one purpose, litigation must be shown to be the dominant purpose on the facts.
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Encouraging ADR: Civil Justice Council publishes final report
19 December 2018Back in 2016, the Civil Justice Council (“CJC”) set up an alternative dispute resolution (“ADR”) working group to review the ways in which ADR currently is encouraged and positioned within the civil justice system in England and Wales. The terms of reference included the review of existing forms of encouragement for mediation (and other forms of ADR) in civil cases in the Civil Procedure Rules, case law and the powers of the court, to consider alternative forms of encouragement and assess proposals for reform. The Working Group has now published its final report.
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Disclosure Pilot Scheme already making an impact as High Court orders list of “issues for disclosure”
12 December 2018The mandatory Disclosure Pilot Scheme may not start in the Business and Property Courts of England and Wales (“BPCs”) until 1 January 2019, but it seems the courts are already taking the new rules into account. In one reported case, the High Court has ordered a separate “list of issues for disclosure”, which will have to be jointly completed by the parties as part of the new Disclosure Review Document required under the Pilot Scheme.
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Sohrab Daneshku writes for The Law Society Gazette: Witness statements – rip them up and start again?
Press
27 November 2018Sohrab Daneshku has written an article for The Law Society Gazette which discusses the review led by Mr Jutice Popplewell into the rules on witness statements, including whether the rules should be changed and, if so, how.
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Major overhaul to disclosure coming: are you ready?
23 November 2018Yesterday our commercial dispute resolution specialists Mark Lim and Paula Barry hosted a discussion about fundamental changes to the disclosure process that are due to come into force on 1 January 2019 as part of a two-year pilot scheme that will run in the Business & Property Courts across England and Wales.
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Dispute Resolution Update - October 2018
01 November 2018Welcome to our October 2018 Dispute Resolution Update which brings you news and our views on law and practice for dispute resolution. We’ve included articles on domestic disputes and international disputes, including summaries of recent cases. We have also included client guides on key aspects of dispute resolution.
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Disclosure Pilot Scheme to start in January 2019
29 October 2018The Civil Procedure Rule Committee has approved the new Practice Direction which sets down rules for a mandatory disclosure pilot scheme. It will run for two years in the Business and Property Courts in England and Wales, starting on 1 January 2019.
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SFO v ENRC landmark privilege case: no appeal but the story continues…
10 October 2018The Serious Fraud Office (SFO) has confirmed that it will not appeal the Court of Appeal’s landmark ruling that documents created during an internal investigation by Eurasion Natural Resources Corporation (ENRC) were protected by litigation privilege and do not have to be disclosed to the SFO. However, the story does not end there because in a new twist, ENRC has applied for a judicial review of the SFO’s investigation into criminal allegations of corruption and financial wrongdoing by ENRC.
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SFO V ENRC: Landmark privilege decision by Court of Appeal
10 September 2018The Court of Appeal has handed down its much anticipated decision in the Serious Fraud Office (“SFO”) v Eurasian Natural Resources Corporation Limited (“ENRC”) appeal. In a judgment that will leave many lawyers breathing a heavy sigh of relief, the Court of Appeal overturned large parts of Mrs Justice Andrews’ first instance decision.
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Supreme Court delivers key judgment on the availability of Wrotham Park “negotiating” damages
02 July 2018The Supreme Court has considered an important question in relation to damages. In what circumstances can damages for breach of contract be assessed by reference to the sum the claimant could hypothetically have received, known as Wrotham Park damages, in return for releasing the defendant from the obligation he had failed to perform?
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You’ve started – so you’ll finish
11 June 2018Claimants commencing proceedings in the Courts of England and Wales may not be able to end those proceedings simply by serving a notice of discontinuance and can be required to take the matter to trial. In this case the claimants were not permitted to discontinue their claim for the recognition and enforcement of an arbitration award under the New York Convention.
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Supreme Court upholds requirement to record variations in writing
24 May 2018Rock Advertising Limited v MWB Business Exchange Centres Limited is an important case. In fact, the opening paragraph of Lord Sumption’s judgment describes it as an “exceptional” appeal, raising “truly fundamental issues” of contract law.
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Liquidator loses protection of a freezing order following serious failings at earlier ex parte hearing
14 May 2018In Banca Turco Romana S.A. (in liquidation) v Cortuk and Others, the Commercial Court in London has underlined the need for applicants to give full and frank disclosure when seeking relief at ex parte (without notice) hearings.
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Service of a Claim Form by email – get it wrong at your peril
27 March 2018Communicating by e-mail is common practice. However unless you adhere to the procedural steps required by the Civil Procedure Rules service of a claim form by email will be defective. The Supreme Court’s decision considered whether to grant relief from sanctions to an unrepresented party for failing to adhere to the procedural steps.
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This is my advice. By the way, it might be wrong!
05 March 2018When do solicitors have to warn their client that the advice they are giving may turn out to be incorrect? The Court of Appeal has recently considered this issue.
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Early Specific Disclosure Applications – factors the court will consider
22 January 2018A decision in the Technology and Construction Court (“TCC") sheds light on the applicable test for early specific disclosure and the relevant considerations in making a successful application. Applications for early specific disclosure are relatively rare so the judgment provides helpful guidance.
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English courts and overseas defendants: jurisdiction challenges and the “two-fold test”
15 January 2018When a dispute involves a foreign party or events that took place in another jurisdiction, questions often arise as to where the dispute should be determined.
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Compulsory mediation?
11 January 2018In October 2017 the Civil Justice Council (CJC) published its interim report on the future role of alternative approaches to dispute resolution (ADR). The report makes various recommendations as well as inviting responses. It follows input from a working group tasked in January 2017 to examine uptake of ADR in civil justice. The primary purpose of the report is to find ways to encourage its use.
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Disclosure in English litigation: a sea change is coming
09 January 2018English rules on disclosure (‘discovery’ in many jurisdictions) are set for a major overhaul. Draft rules were published in November 2017. Once approved by the Civil Procedure Rules Committee, the resulting draft is intended to be introduced as part of a pilot scheme lasting 2 years, potentially beginning in April 2018 and running in the Business and Property Courts. This will cover virtually all High Court litigation. It will not be optional.