Commercial litigation podcast series – Episode 3: General update

In this third episode of our series of commercial litigation update podcasts, we look at developments in disclosure and privilege since our February update, as well as some developments relating to costs and funding. This episode is hosted by Anna Pertoldi, who is joined by Maura McIntosh and Ajay Malhotra.

Our podcast is available on iTunes, Spotify and SoundCloud and can be accessed on all devices. A new episode will be released every couple of months. You can subscribe and be notified of all future episodes.

Below you can find links to our blog posts on the cases covered in this podcast:

 

Anna Pertoldi
Anna Pertoldi
Partner
+44 20 7466 2399
Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608
Ajay Malhotra
Ajay Malhotra
Senior associate
+44 20 7466 7605

Article published – Dealing with the COVID-19 pandemic: are your emails privileged?

The COVID-19 pandemic has brought with it huge challenges for businesses. While the focus has been on keeping business going, rather than the prospect of litigation in the future over decisions taken now, it seems inevitable that litigation will follow such a major disruption of the global economy.

Given that documents created now will be highly relevant in any such litigation, Anna Pertoldi has published a post on Practical Law’s Dispute Resolution blog which considers what will and will not need to be disclosed, and in particular, what documents will be privileged. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Article published – Directors’ duties in a COVID-19 world

With a global pandemic causing unprecedented uncertainty for businesses, it has never been more difficult for the directors of UK companies fully to discharge their duties – and the risks when they do not do so have never been higher.

Members of our contentious and non-contentious UK Restructuring, Turnaround and Insolvency team have considered the implications and risks faced by directors in an article published to International Corporate Rescue this month.  For further information, and a copy of the article authored by John Whiteoak, Kevin Pullen and Andrew Cooke, please see here.

Article published – Funders’ liability for adverse costs: scrapping the cap

As explained in this previous post, the Court of Appeal has recently dismissed an appeal against a decision which declined to apply the so-called Arkin cap to limit a commercial funder’s liability to the amount of the funding it had provided. The decision confirms that the Arkin cap is not a binding rule, and the court retains a broad discretion as to the extent to which a funder should be liable for adverse costs.

Maura McIntosh has published a post on Practical Law’s Dispute Resolution blog which considers the implications of the decision, both for litigation funders and for defendants to funded litigation. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Article published – Legal advice privilege: a dominant purpose test, but to what end?

The Court of Appeal’s recent decision in The Civil Aviation Authority v The Queen on the application of Jet2.com Ltd [2020] EWCA Civ 35 found that legal advice privilege (LAP) is subject to a “dominant purpose” test, and also considered how LAP applies in the context of multi-addressee emails which include both lawyers and non-lawyers as recipients.

Julian CopemanAnna Pertoldi and Maura McIntosh have published an article in PLC Magazine which considers the Jet2.com decision and its implications. Click here for a copy of the article, which first appeared in the March 2020 issue of PLC Magazine: http://uk.practicallaw.com/resources/uk-publications/plc-magazine. Or click here for our previous blog post on the decision.

Drafting contracts: Key lessons from 2019

This annual contract law update from our corporate team considers a number of interesting contract law cases from 2019 which highlighted key points for those involved in drafting or managing contracts.

The cases chosen deal with formation and certainty of terms, interpretation and implied terms, good faith, severance, loss and remedies, penalties, force majeure, notice provisions, third party rights, and execution. In each case there is a brief summary of the facts and the court’s decision together with some practical tips. The briefing also includes brief sections on the impact of Brexit on contracts and the discontinuance of Libor.

The full briefing is available here.

Cross-Border Litigation: Latest update published

We are pleased to release the latest issue of our periodic publication “Cross-Border Litigation”, designed to highlight legal and practical issues specific to litigation with an international aspect.

Topics covered in this issue include:

  • Spotlight on recent developments
  • The new Hague Judgments Convention: A potential gamechanger (eventually)
  • Obtaining evidence from US-connected entities: US court widens the scope
  • Will an English judgment be enforceable in the EU27 post-Brexit?
  • The new Singapore Convention on mediated settlements: Some practical issues to consider now
  • Jurisdiction and governing law: Recent decisions

To download the publication, click here.

To read the previous issues, click here.

Our new Commercial Litigation Podcast Series

We have today launched our new series of commercial litigation update podcasts, looking at developments in civil procedure that will be of interest to in-house lawyers and others who deal with litigation in the English courts.

In this first episode we look at recent developments in disclosure and privilege. This episode is hosted by Anna Pertoldi, who is joined by Maura McIntosh and Chris Cox.

Our podcast is available on iTunes, Spotify and SoundCloud and can be accessed on all devices. A new episode will be released every couple of months. You can subscribe and be notified of all future episodes.

You can find links to our blog posts on the cases covered in this podcast below:

And here is a link to our most recent webinar on the disclosure pilot in the Business and Property Courts: The Disclosure Pilot – 10 months on: how is PD51U working in practice?

Anna Pertoldi
Anna Pertoldi
Partner
+44 20 7466 2399
Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608
Christopher Cox
Christopher Cox
Senior associate
+44 20 7466 2203

HSF overview of collective damages claims in competition cases in the UK published in GCR Guide to Private Litigation

Our competition litigation team’s overview of collective damages claims in competition cases in the UK has recently been published as part of Global Competition Review’s new Guide to Private Litigation. The rest of the Guide is available for free to GCR subscribers here.

The HSF chapter considers the current trends in collective or class actions and claims aggregation in the UK, and highlights some of the key issues that have arisen in recent cases. It focuses in particular on the specific opt-out collective actions regime before the Competition Appeal Tribunal (CAT), and the issues which have arisen in the two cases which have so far proceeded to a certification hearing: Pride v Gibson and Merricks v Mastercard. Although to date there have been no successful applications for a collective proceedings order, the sense of momentum behind the expanded regime is increasing. The Supreme Court’s hotly anticipated judgment in Merricks v Mastercard later this year is expected to have a considerable bearing on where the balance lies between facilitating redress and avoiding the risk of unmeritorious class claims, and indeed on the future of collective proceedings in the CAT.

A more detailed summary and contact details for the authors are in this post on our Competition Notes blog.

A litigator’s yearbook: 2019 (England and Wales)

As another eventful year comes to a close – and we wait for the results of the UK general election later this week which will of course have significant implications for English litigation insofar as it determines the question of when or whether the UK will leave the EU – we take this opportunity to look back at what 2019 has had in store from the perspective of the commercial litigator. In this post, we look at key developments relating to a range of topics including jurisdiction (and the impact of Brexit), privilege, contract law, settlement and various aspects of court procedure.