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

A thorny issue—the admissibility of covert recordings in civil proceedings (Mustard v Flower)

mustard

CA 1249 – Mustard v Flower & Ors [2019] EWHC 2623 (QB) (11 October 2019)

In Mustard v Flowers, Master Davison considered the thorny issue of the admissibility of covert recordings in civil proceedings. Challenges based on data protection law failed.The judge outlined that the admissibility of such evidence will be determined on a case by case basis, and it could not be determined by general guidance to be applied across the board. A potential solution in personal injury cases was the adoption of a protocol providing for an agreed scheme for the recording of medical examinations. This would negate the desire or need for covert recordings of such examinations. Until such time a protocol is adopted, the key question remains whether or not such evidence is relevant and probative.

This article was first published by Lexis®PSL on 15/10/2019 (click on the above link for the full article).

Legal privilege—once established, it will remain in existence unless and until it is waived (Addlesee v Dentons)

CA 1224 – Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600, [2019] All ER (D) 12 (Oct)

This analysis considers the recent Court of Appeal decision in respect of legal advice privilege, which overrules the Upper Tribunal decision in the case of Garvin Trustees Ltd v the Pensions Regulator. It confirms that legal advice privilege, once established, remains in existence unless and until it is waived. The argument that, where there was no legal person entitled to assert this legal advice privilege, it followed that privilege ceased to exist, was incorrect.

This article was first published by Lexis®PSL on 07/10/2019 (Click on above link for full article).

 

 

Award on effect of company restoration on termination clause upheld on appeal (Bridgehouse (Bradford No.2) v BAE)

CA 1101 – Bridgehouse (Bradford No.2) v BAE Systems plc [2019] EWHC 17668 (Comm)

In the Commercial Court, Mrs Justice Cockerill upheld, on appeal pursuant to section 69 of the Arbitration Act 1996 (AA 1996), a sole arbitrator’s decision that a contract was validly terminated based upon a ‘Default Event’, namely, that Bridgehouse (Bradford No.2) (BB2) was struck off the register of companies. While BB2 was restored to the register shortly after, the arbitrator had correctly decided that BB2 had defaulted the moment it was struck off. It was not appropriate for the effective termination to be reassessed retrospectively by way of the company’s restoration. Such default event clauses clearly operate as a useful risk management tool in respect of termination of contracts in the event of a party falling into a state of administrative disarray, and the case provides certainty in terms of when and how such a clause can be utilised.

This article was first published by LexisNexis on 15/7/2019

Construction Law Update: Deluxe Art & Theme Limited v Beck Interiors Limited [2016] EWHC 238 (TCC)

The recent case of Deluxe Art & Theme Limited v Beck Interiors Limited [2016] EWHC 238 (TCC) has confirmed that an adjudicator does not have jurisdiction to deal with concurrent but separate disputes without the consent of the parties.

The decision is an important one, as it is the first time that the Court has considered a wider interpretation of Paragraph 8 (1) of Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011 (‘the Scheme’).

In the case Deluxe referred three separate disputes to adjudication as per the Scheme, the third adjudication being commenced prior to a decision having been reached in the second adjudication. Beck wrote to the adjudicator objecting to the same. The matter came before Coulson J for summary judgment, as Beck did not comply with the second and third decisions. Beck resisted the Application, arguing that Para 8 (1) prohibited an adjudicator determining more than one dispute without the consent of the parties.

Paragraph 8 (1) reads as follows:

‘The adjudicator may, with the consent of all the parties to those disputes, adjudicate at the same time on more than one dispute under the same contract.’

In order to overcome Paragraph 8 (1) Deluxe contended that the second and third disputes were, in actuality, a single dispute. This was despite bringing the matters as separate disputes under separate notices. This argument was unsuccessful, and the Court finding, amongst other matters, that Deluxe clearly considered the disputes were separate, as there would have been no need to commence the third adjudication if it was the same as the second.

Further, Deluxe sought to argue the following:

  1. Paragraph 8(1) is only intended to apply where an adjudicator is dealing with multiple disputes arising out of the same notice of adjudication; and
  2. Paragraph 8(1) would be contrary to section 108(2)(a) if it applies in respect of multiple adjudications because it would restrict the right to adjudicate at any time.

The Court again rejected these arguments, finding as a matter of construction, Paragraph 8 (1) did not create any distinction between single and multiple disputes.

In respect of the second point, the Court held that there was no fettering of the right to adjudicate at any time, as all that the parties have agreed to is that if one party wants to adjudicate more than one dispute at the same time before a particular adjudicator, then that party needs the consent of the other party.

Thus, given the absence of consent, the Court refused to enforce the third adjudication decision.

It is now clear that separate disputes under the same contract cannot now be dealt with by the same adjudicator at the same time unless consent is gained where the Scheme applies. A simple solution is to wait for the decision in the earlier dispute before bringing the second where consent is withheld. Further, you may wish to consider alternative forums for the resolution of the dispute, for example, Part 8 proceedings where there is no complex dispute of facts, or perhaps expert determination which may be dealt with relatively quickly.

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