Waiver of privilege in draft expert report

The High Court has held that a defendant waived privilege in its draft expert report, since it had deployed significant parts of the report in a witness statement served in defence of an application to strike out its counterclaim: ACD… Read more

Two new Supreme Court justices appointed

The Supreme Court has today announced the appointment of two new justices, Lord Reed and Lord Justice Carnwath CVO. The two appointments follow the death of Lord Rodger in June 2011 and the forthcoming retirement of Lord Brown in April… Read more

Guidance on use of live communications from court

On 14 December the Lord Chief Justice issued practice guidance on the use of live text-based forms of communication (including twitter) from court for the purposes of fair and accurate reporting. The guidance applies to proceedings which are open to the… Read more

Webinar alert – Fraud update

On Thursday 8 December (12:45 to 1:45 UK time) Robert Hunter, John Corrie, Lucy Hopkins, Ben Cameron and Will Turner  will present a live audio webinar to update listeners on recent developments in fraud and asset tracing litigation, including: Lying about creditworthiness: Section 6 of the Statute… Read more

Rolls Building in action

London's new business court, the Rolls Building, opened its doors in October, bringing under one roof the business related divisions of the High Court (the Admiralty and Commercial Court, the Technology and Construction Court and the Chancery Division).  The new… Read more

Prudential appeal to be heard in November 2012

In April this year, Prudential was granted permission to appeal to the Supreme Court against the Court of Appeal’s decision confirming that legal professional privilege is restricted, at common law, to members of the legal professions: R (on the application… Read more

New code of conduct for litigation funders

A new code of conduct for litigation funders (who fund litigation or arbitration in return for a share of the proceeds) was launched on Wednesday, 23 November. Lord Justice Jackson's lecture on litigation funding (the sixth in his series of lectures in… Read more

Robes and wigs now optional in Supreme Court

Earlier this week the President of the Supreme Court announced that advocates appearing before the court (or the Judicial Committee of the Privy Council) may do away with any or all elements of traditional court dress, if all advocates agree.… Read more

Substantial court fee increases proposed

The Ministry of Justice (MoJ) has issued a Consultation Paper on court fees in which it proposes substantial increases to issue fees for higher value claims and the introduction of time-related hearing fees in the High Court and Court of… Read more

Progress toward disclosure “menu”

In our September update on the Jackson reforms (Jackson reforms: taking stock) we reported that a sub-committee of the Civil Procedure Rule Committee had been appointed to take forward Lord Justice Jackson's proposal for a “menu” of disclosure options for substantial… Read more

Expert evidence: controlling costs / focusing issues

The Civil Procedure Rule Committee has approved an amendment to CPR Part 35 to implement Lord Justice Jackson's recommendation that parties seeking permission for expert evidence should provide the court with an estimate of the costs of that evidence (as… Read more

Tougher approach to compliance

The Civil Procedure Rule Committee has approved the wording of an amendment which seeks to implement Lord Justice Jackson’s recommendations that the courts “should be less tolerant than hitherto of unjustified delays and breaches of orders” (see our September update… Read more

Launch of our new litigation know-how blog

Welcome to Herbert Smith’s new litigation know-how blog, "litigation notes". The aim of the site is to report the latest developments on commercial litigation topics both quickly and concisely, and to make that information available to you as and when you want it. Although the blog has… Read more

Test for joint interest privilege clarified

The High Court has clarified the circumstances in which a company director or officer is entitled to assert joint interest privilege in legal advice received by the company where the individual was not an express party to the solicitor's retainer. The court… Read more

No joint privilege for conspiring shareholder

A company is not generally entitled to assert privilege against its shareholders, since they have a joint interest in the advice received. This principle does not apply where the advice relates to potential proceedings between the company and the shareholder, since… Read more

Court of Appeal on limited waiver of privilege

The Court of Appeal has held that a claimant was entitled to assert privilege in a draft witness statement relating to separate litigation, despite having previously copied the draft to the defendant in the current proceedings: Berezovsky v Hine [2011]… Read more

Proposed optional Common European Sales Law

On 11 October the European Commission published its proposed Regulation on a Common European Sales Law (download pdf here), aimed at facilitating cross-border transactions in the EU. If adopted, it will insert into the national laws of the 27 EU member states an… Read more

Relevance not sufficient for standard disclosure

The Court of Appeal has reiterated the distinction between the broad discovery regime that applied before the introduction of the Civil Procedure Rules ("CPR") in 1999 and the more limited requirements under CPR "standard disclosure". In particular, the court held… Read more

Assignment of claim void for champerty

In the context of litigation funded by third parties the courts have taken an increasingly liberal approach to the principles of champerty and maintenance (the ancient rules against "trafficking" in litigation). However, a recent Court of Appeal judgment illustrates that… Read more

An insight on the Supreme Court

Russell Hopkins, an associate in our firm's Advocacy Unit, has recently returned from spending a year as one of eight Judicial Assistants to the Justices of the UK Supreme Court. He worked for Lord Collins and Lord Wilson, gaining invaluable… Read more

Article published on endeavours and good faith

Commercial contracts commonly require one or both parties to use "reasonable", "all reasonable" or "best" endeavours to achieve some goal, or to act or negotiate in "good faith". Despite the frequency with which such terms are used, there is a surprising lack of clarity in the case law as… Read more

Revocation of order granting relief from sanction

The High Court has revoked its previous order granting relief from sanction under an unless order, where the respondents had given false information in purported compliance with the terms of the court's orders, and has refused to grant further relief: JSC BTA Bank v… Read more

Jackson reforms: taking stock

In addition to the headline reforms which are to be implemented through primary legislation currently before Parliament, progress is ongoing toward the implementation of various other recommendations put forward in Lord Justice Jackson's final report on civil litigation costs and… Read more

Costs on acceptance of Part 36 offer pre-action

Where a Part 36 offer is made and accepted pre-action, so that no proceedings are issued, is the claimant entitled to its costs? The answer was yes in a recent High Court decision, KT and others (minors) v Bruce [2011]… Read more

Court can give judgment despite settlement

A recent Court of Appeal decision clarifies that the court has the power to hand down judgment in a case that has been fully argued, even if the parties have settled their dispute and asked that judgment not be given:… Read more