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of such documents is in furtherance of ‘open justice’, however, the previously stated ‘legitimate interest’ test is no longer applicable.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

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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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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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