The restriction of new issues being raised at trial (Re Fundão Dam Disaster)

This case serves as a reminder that proportionality and the overriding objective remain key in respect of case preparation and in terms of the issues that the parties may advance at trial. In particular, parties will not be allowed to raise new issues at the eleventh hour that have not been adequately brought to the attention of the other side, certainly where an opportunity to consider the same would be required by the opposing party, and where this would risk derailing the trial timetable. The power to exclude such issues from consideration is expressly provided for pursuant to CPR 3.1. Further, where a party seeks to appeal a case management decision prior to the handing down of a substantive judgment, it is prudent to consider the making of that application to the judge seised of the case. At the very least, it is important to ensure that the judge in question is made aware of the application and promptly so.

This analysis was first published on Lexis®PSL on 22/09/2020

Revisiting the narrow exceptions to the without prejudice privilege rule (Wired Orthodontics Ltd v HMRC)

CA 2139 – Wired Orthodontics Ltd & Ors v Revenue & Customs [2020] UKFTT 290 (TC)

This case concerned an application for disclosure following an alleged interference with the evidence of an independent expert witness, who was employed in-house by HM Revenue and Customs (HMRC). HMRC objected to the application on the basis that the discussions leading up to the preparation of a joint experts’ report were subject to without prejudice privilege (WPP). The tribunal gave a significant warning in respect of the manner in which HMRC’s instructing solicitor had dealt with matters, but held that the evidence relied upon did not fall within the ‘unambiguous proprietary’ exception to such privilege. These exceptions were to be viewed narrowly given the fundamental importance of WPP to the justice system.

First published by Lexis®PSL on 4 August 2020.

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Non-parties seeking access to trial documents and the proper application of the ‘open justice’ test (Dring v Cape Intermediate Holdings)

CA – Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB)

This case concerned the application of the principles restated by the Supreme Court in respect of non-party access to trial documents either pursuant to the CPR 5.4C(2) or the High Court’s inherent jurisdiction. It is clear that parties do have the prima facie right to access documents which have been referred to at the trial if the provision of such documents is in furtherance of ‘open justice’, however, the previously stated ‘legitimate interest’ test is no longer applicable. This case deals with the first application of the restated test, and the balancing act outlined by Lady Hale in the Supreme Court  ultimately led to the application being refused.

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First published by Lexis®PSL on 20/07/2020

The interplay between an unsuccessful application to adjourn a trial (CPR 3.1) and a subsequent application to set aside a judgment due to non-attendance (CPR 39.3(3)) (Fatima v Family Channel Ltd and another)

CA – Fatima v Family Channel Ltd and another [2020] EWCA Civ 824

This appeal raised an important point of principle, namely, the interplay between an unsuccessful application to adjourn a trial under CPR 3.1(2)(b) and a subsequent application to set aside a judgment entered against a non-attending party under CPR 39.3(3). The Court of Appeal made it clear that there is no principle of consistency or judicial comity which requires a judge dealing with an application pursuant to CPR 39.3(3) to follow the trial judge’s decision, even where nothing has subsequently changed in respect of the facts. In particular, an application to adjourn a trial and an application under CPR 39.3 are discrete applications involving different tests. An application pursuant to CPR 39.3(3) justifies a less draconian approach; the approach to the question of whether or not there is a good reason for non-attendance is different (and more generous to the applicant) under CPR 39.3(3) than it is in an application to adjourn.

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First Published by Lexis®PSL on 02/07/2020

The enforcement and recognition of foreign judgments through the English courts (Public Stock Co v Starr Syndicate)

CA – Public Joint Stock Co (“Rosgosstrakh”) v Starr Syndicate Ltd and other companies [2020] EWHC 1557 (Comm)

In this case, the High Court considered the recognition and enforcement of a foreign judgment in the English courts. In particular, consideration was given as to the correct test to be applied when determining whether parties can be said to have agreed to submit to the law of a foreign jurisdiction, and the effect this will have on enforcement. The principles as per the Privy Council decision in Vizcaya Partners Ltd v Picard were also considered, as was the defence of bias.

This article was first published by Lexis®PSL on 19/06/2020

 

Technology keeps the court wheels turning

CL-June2020-Bryden

My recent joint article with Chris Bryden published by Construction Law

Key points:

  • Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd and other companies [2020] EWHC 741 (Pat)- High Court allows application to adjourn complex trial in light of COVID-19. In particular, there was no provision within the CPR to allow such a trial to be conducted on the papers, and it was not appropriate to do so in the circumstances.
  • Re One Blackfriars Ltd (in liquidation) [2020] EWHC 845 (Ch) (06 April 2020)- High Court rejects application to adjourn a trial, which was to proceed remotely even with a number of expert witnesses in addition to witnesses of fact. It was held that, to do so, was not to proceed in a manner incompatible with current government guidance.
  • MillChris Developments Ltd v Waters (2020)- The TCC (remotely) rejected an application to injunct on-going adjudication proceedings on the basis of COVID-19. l In the absence of clear and causally linked evidence, it appears as though parties seeking to restrain on-going adjudication proceedings on the basis of COVID-19, will find little favour from the Courts.
  • The situation and guidance is fast-paced and frequently changing and it is clear that the workings of the justice system are having to (and with a degree of success) adapt quickly.
  • Preparation is paramount, and parties will need to ensure that they and their legal advisors are taking steps to ensure that the remote process runs as smoothly as it can.

 

The Corporate Veil in a Construction Context

My recent joint article with Chris Bryden in Construction Law:

CL-March2020-KB-240220

Key Points:

  • The concept of limited liability plays an important role in corporate life.
  • But it shields director from the misery felt along the supply chain in the event of insolvency.
  • Claims can sometimes be pursued however against directors.
  • Case law suggests that true instances of piercing the corporate veil will be rare.
  • Insolvency will usually mean that the supplier loses out, as a consequence of the greater good of limited liability from a macroeconomic perspective.

The scope of civil restraint orders (Nursing and Midwifery Council and another v Harrold)

CA – Nursing and Midwifery Council and another v Harrold 2020 EWHC 1108 (QB)

This case provides an outline of the principles to be applied when both considering the making, and the extending, of a civil restraint order (CRO). In appropriate cases, it is clear that such an order may extend to proceedings brought in the Employment Tribunal. However, in the instant case, the judge held that the inherent jurisdiction of the High Court should not be utilised to expand the scope of the general civil restraint order (GCRO) to include complaints made about parties’ legal advisors to their professional regulators. There were a number of reasons for this, including the fact that the order sought was not directly concerned with preventing an abuse of the High Court or any inferior court, and the fact that the inherent jurisdiction is said to be ‘unlimited’ does not mean that judges may do whatever they consider appropriate or desirable in the circumstances of a case.

This article was first published by Lexis®PSL on 11/05/2020

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Issue estoppel and abuse of process in respect of foreign judgments (Mad Atelier International v Manès)

CA – Issue estoppel and abuse of process in respect of foreign judgments (Mad Atelier International v Manès)

This case provides a useful outline of the complicated questions that will arise in respect of an argument that a claim brought in England is an abuse of process, where a linked judgment has been obtained outside of the jurisdiction. Key to the question of abuse will be the precise nature of the two disputes and the parties in question, as well as the presence of an exclusive jurisdiction clause within the contract providing that England is the relevant forum.

This article was first published by Lexis®PSL on 30/04/2020

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The making of group litigation orders in the context of competing solicitors’ firms (Lungowe and others v Vedanta Resources plc)

CA 1690 – The making of group litigation orders in the context of competing solicitors firms (Lungowe and others v Vedanta Resources plc)

This case deals with the various considerations when the court is being asked to make a group litigation order, particularly, where competing solicitors’ firms are acting for a number of claimants. It was made plain that, submissions which are underpinned by a commercial advantage to the solicitors acting for claimants retaining their involvement independently from other claimant firms, will not find favour with the courts.

This article was first published by Lexis®PSL on 16/04/2020

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