Business as usual? High Court to hear five-week trial remotely in light of the coronavirus (COVID-19) pandemic (Re One Blackfriars Ltd)

CA 1672 – Business as usual High Court to hear five-week trial remotely in light of the coronavirus (COVID-19) pandemic (Re One Blackfriars Ltd)

This case involved an opposed application to adjourn a fiveweek trial listed in June 2020 in light of the coronavirus (COVID-19) pandemic. The application to adjourn was dismissed, and the judge gave helpful guidance in terms of how best parties can prepare for such a hearing to be heard remotely. It also provides guidance in terms of the health and safety considerations, the heightened duty for parties to cooperate, and the compatibility of such hearings taking place in light of the Prime Minister’s instructions to the nation to stay at home. The judge also referred to two recent complex trials which had, for the most part, proceeded remotely without significant issue. The guidance and advice in the current climate is fast paced and frequently evolving but it seems as though courts are adapting well to these challenges, and multi-party complex cases may still well proceed. In the instant case, if the application to adjourn had been successful, the trial would not have been re-listed for a year.

This article was first published by Lexis®PSL on 09/04/2020

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Adjourning complex FRAND trials in the current health crisis—(Conversant Wireless Licensing v Huawei Technologies)

CA 1652 – Adjourning complex FRAND trials in the current health crisis—(Conversant Wireless Licensing v Huawei Technologies)

This case involved the application of Huawei to adjourn a trial in a FRAND case. Conversant instead sought that the trial was conducted, for the most part, on the papers. The judge outlined the relevant case law and current guidance from the Lord Chancellor. Crucially, the Civil Procedure Rules had not been amended such that it was appropriate for the conduct of a FRAND trial to go forward on the papers. While the judge accepted that it may well be that the FRAND trial, while not straightforward, could be in danger of becoming unnecessarily complex, there were bound to be issues, a significant number of them, which would require cross-examination in the usual way. Accordingly, the trial was adjourned.

This article was first published by Lexis®PSL on 06/04/2020

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An analysis of disclosure obligations in respect of custodians and agents (BES v Cheshire West)

CA 1638 – An analysis of disclosure obligations in respect of custodians and agents (BES v Cheshire West)

This case provides a useful reminder of the relevant issues relating to requests for further disclosure in a complex multi-party case. It remains the position that a parent company does not merely by virtue of being a 100% parent have control over a document of its subsidiaries.

Each instance will be judged on a case by case basis taking into account a number of factors and, while the absence of any genealogical corporate relationship between the parties may not be fatal for an application for disclosure, it is distinctly unhelpful.

It also reconfirms that an agent of a company involved in litigation will be required to ‘produce to the principal upon request, or to a proper person appointed by the principal, all books, correspondence and documents (including emails and other electronic material) under his control relating to the principal’s affairs’.

This article was first published by Lexis®PSL on 01/04/2020

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Pre-action conduct and the question of promptness when making an application to set aside a default judgment under CPR 13.3 (Core- Export v Yang Ming)

CA – Core-Export v Yang Ming

This case considers the question of pre-action conduct in respect of an application to set aside a default judgment. While finding that the delay of 23 days since the defendant became aware of the judgment was not prompt, the judge also considered that it was necessary to view the speed in which the application had been made in the context of what had gone before it; in this case, including pre-action conduct. On the face of it, this appears to sit uneasily in light of the Court of Appeal authority in the case of Macdonald v Thorn, in which the court held that it was not appropriate to consider pre-action conduct in such an application, as the ‘default’ (ie failure to file an acknowledgment/defence) was the trigger for such an application. However, the distinction is arguably that pre-action conduct will be taken into consideration where it is relevant to an evaluation of the explanation for any delay in making the application to set aside.

This article was first published by Lexis®PSL on 13/03/2020

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‘Judgments on judgments’ capable of registration under the Administration of Justice Act 1920 (Strategic Technologies v Procurement Bureau of the Republic of China Ministry of National Defence)

CA – Strategic Technologies PTE Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWHC 362 (QB)

This case confirms the importance of the formal steps relating to service outside of the jurisdiction. In particular, where such steps are not undertaken in accordance with the law of the country to which service is to be effected, enforcement steps taken are liable to be set aside as premature. It also confirms that the Administration of Justice Act 1920 (AJA 1920) is broad enough to allow the registration of judgments obtained without a consideration of the merits (ie judgments in default). As such, it is permissible to register a ‘judgment on a judgment’, as AJA 1920, s 12 is very broad and the word ‘any’, in particular, is powerfully inclusive. While there is an argument for deterring the ‘laundering’ of judgments, until parliament makes legislative change, such practices are acceptable.

This article was first published by Lexis®PSL on 05/03/2020

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High Court confirms that variation of a disclosure order under the disclosure pilot is governed by CPR PD 51U (Conversant Wireless Licensing v Huawei)

CA – Conversant Wireless Licensing SÀRL v Huawei Technologies Co Ltd and others [2020] EWHC 256 (Pat)

This case confirms that, in a case where the disclosure pilot for the Business and Property Courts (the disclosure pilot) applies, the applicable test for revoking or varying an order for disclosure pursuant to CPR 3.1(7) must give way to the specific requirements of CPR PD 51U, para 18, which expressly sets out a different test. In particular, a court may at any stage make an order varying or revoking a previous order for extended disclosure, provided that it is necessary for the just disposal of the proceedings and that it is reasonable and proportionate. There is nothing in the disclosure pilot to suggest that applications to vary orders for extended disclosure will only be granted where something out of the ordinary has occurred.

This article was first published by Lexis®PSL on 27/02/2020

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Inducing a breach of contract—clarification of what amounts to a sufficient state of mind (Allen v Dodd)

CA 1549 – Allen t a David Allen Chartered Accountants v Dodd and Anr [2020] EWCA Civ 258

The issue raised on this appeal was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract. It was confirmed that, if a defendant honestly believes that the act they procure will not amount to a breach of contract, they are not liable in tort even if their belief is mistaken in law. It matters not that a defendant’s erroneous belief is caused by their own ignorance or as a result of incorrect advice they receive from their lawyers.

This article was first published by Lexis®PSL on 2 March 2020

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High court gives guidance on issues for disclosure, disclosure models and cooperation between parties in relation to disclosure pilot (McParland v Whitehead)

CA 1506 – McParland and others v Stuart Whitehead [2020] EWHC 298 (Ch)

Sir Geoffrey Vos, Chancellor of the High Court, took the opportunity to provide helpful guidance on CPR PD 51U—which governs the disclosure pilot in the Business and Property Courts. In particular, he emphasised that issues for disclosure are very different to issues for trial, and issues for disclosure do not extend to every issue which is disputed in the statement of case by denial or non-admission. In many cases, the issues of disclosure need not be numerous, and they will almost never include legal issues or factual issues which are already capable of being resolved based upon documents available from initial disclosure. Parties ought to pay close attention to the various models of disclosure provided within the pilot scheme, and it may be appropriate for parties to each rely upon different models in respect of the same issue, but this must be assessed on a case by case basis. The importance of cooperation was also addressed, and it was made clear that parties must not seek to use the process to gain any litigation advantage; such conduct will be met with immediately payable adverse costs.

This article was first published by Lexis®PSL on 18/02/2020

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