Dispute Resolution Update - January 2019

Recent Articles

Witness statements – rip them up and start again? - Sohrab 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 - Read more.

Major overhaul to disclosure coming: are you ready? - Commercial dispute resolution specialists Mark Lim and Paula Barry hosted a discussion about fundamental changes to the disclosure process that came 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 - Read more.

Encouraging ADR: Civil Justice Council publishes final report - 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 Working Group has now published its final report - Read more.

Litigation privilege and the ‘dominant purpose’ test: ENRC decision applied - Did 2018’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 - Read more.

Professional privilege and investigations – what do accountants need to know? - In an article for Accountancy Age, Fraser McKeating explains how the law of privilege operates in the context of investigations - Read more.

Disclosure Pilot Scheme already making an impact as High Court orders list of “issues for disclosure" - Whilst the mandatory Disclosure Pilot Scheme was not due to start in the Business and Property Courts of England and Wales (“BPCs”) until 1 January 2019, the courts have already been 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 - Read more.

Court of Appeal finds no litigation privilege in internal emails discussing commercial settlement of dispute - The 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 - Read more.

Out of court appointments of administrators: a return to reason - When appointing administrators out of court, there is requirement to specify the date and time the appointment is made. This is a development arising since April 2017 as a result of the Insolvency Rules 2016 coming into force. Given that appointments are generally effective at the point of filing, it has been unclear how (absent a crystal ball) practitioners should address the requirement when preparing the Notice of Appointment form. A recent High Court decision resolves the issue, confirming that a notice making reference to a future filing is acceptable - Read more.

Client Guides

Disclosure: avoiding the pitfalls - This guide provides you with a general introduction to the obligations of disclosure in Court proceedings, other than those governed by the disclosure pilot scheme now running in the Business and Property Courts. The rules governing disclosure are found in the Civil Procedure Rules Part 31 and the surrounding case law. This guide will highlight the main points you need to know, consider the problems often encountered and offer some practical tips - Read more.

The Disclosure Pilot Scheme - The Civil Procedure Rule Committee has approved a 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 and started on 1 January 2019. This guide provides a general introduction to the changes, highlights the main points you need to know, and offers some practical tips - Read more.