Round-up of litigation and ADR procedure for in-house lawyers

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A whistle-stop tour through the highlights of recent news and decisions on litigation and alternative dispute resolution procedure.

Specialist courts including the TCC to be referred to as the "Business and Property Courts"

From June 2017, the specialist civil courts will be called the "Business and Property Courts of England and Wales". The specialist courts include: the Commercial Court (including the Admiralty Court and Mercantile Court); the Technology and Construction Court (TCC); and the courts of the Chancery Division (including those dealing with financial services, intellectual property, competition, and insolvency). "The new arrangements will preserve the familiar practices and procedures of these courts, whilst allowing for more flexible cross-deployment of judges with suitable expertise and experience to sit on appropriate business and property cases." (See the judiciary.com media release here.)

Expert evidence: is it needed, when will the court allow it and the importance of staying engaged throughout the proceedings

In our latest review of court decisions on experts, we look at "Expert evidence: is it needed, when will the court allow it and the importance of staying engaged throughout the proceedings". Click here to read more.

Disclosure: standard disclosure and listing privileged documents

Standard disclosure is not the default option

At a disclosure lecture on 10 October 2016, Lord Justice Jackson called for parties to make more effective use of the disclosure menu of options set out in the Civil Procedure Rules (CPR) 31.5. In particular, he wanted parties to stop treating standard disclosure as the default option and review the full range of options before simply proposing or agreeing to "standard disclosure". He called on both parties and the courts proactively to challenge other parties who fail to do so. He also called for the courts to take a more robust and challenging case management approach to disclosure – and to make disclosure orders that are consistent with the approved or agreed budgets.

There have been a number of decisions on disclosure issues since and there is evidence that the courts are rising to Jackson LJ's clarion call.

It is not enough to list privileged documents in Part B of a list of documents generically

In Astex Therapeutics Ltd v. AstraZeneca [2016] EWHC 2759 (Ch), the court ordered the party claiming that documents were privileged to serve a witness statement by one of its proper officers explaining the claim. The statement had to list "the documents over which privilege is now claimed, taking account of the limited nature of legal advice privilege, and the date when each document was created", what type of privilege was being claimed and how the claim had arisen.

ADR: confidential documents in mediation, updated CEDR documents and trying mediation

Some mediation documents might not remain confidential

A neat link from disclosure issues to alternative dispute resolution (ADR) can be found in the decision of Savings Advice Limited v. EDF Energy Customers plc [2017] EWHC B1 (Costs). The parties' mediation was unsuccessful but they settled their dispute a few months later, when the claimants accepted the defendants' Part 36 offer. The claimants were entitled to recover costs on the standard basis. The parties reached agreement in respect of some aspects, but were unable to reach agreement in respect of a significant sum for after the event insurance (ATE). This issue was dealt with by assessment proceedings. During the assessment proceedings, an issue arose as to whether documents submitted as part of the mediation, which referred to costs, were admissible.

The parties' mediation agreement contained a confidentiality clause as well as a clause providing that all documents or other material produced for the mediation would be subject to without prejudice privilege and not disclosable in any litigation connected with the dispute – so long as and to the extent that such privilege applies. However, the court held that costs information given to the claimants for the purpose of the mediation was, in fact, admissible in the costs assessment proceedings.

Master Haworth concluded that: "the relevant statement of the defendant's costs was … a statement of pure fact and nothing more: it was not protected by "without prejudice privilege." … "The whole purpose of the mediation was to achieve a settlement. In those circumstances any costs information given in mediation is and must be admissible in order to work out the consequence of any subsequent settlement. In that sense in my judgment, costs information in the form of statements of facts can be separated out from documents or other information that comes into the domain of either party for the purposes of negotiating a settlement of the substantive claim." (See paragraph 30 of the judgment.) Further, the costs documents were headed "without prejudice save as to costs", which Master Haworth took to illustrate their admissibility for the purpose of the costs assessment.

CEDR model mediation documents updated

The Centre for Effective Dispute Resolution (CEDR) has published a 2017 update of its mediation model documents and rules. An accompanying note on the updates, Changes on the 2017 Edition of CEDR's Model Mediation Documents, and a CEDR bulletin of November 2016 explain the reasons for the changes including: to clarify the wording; to protect the essential nature of the mediation and stress that parties attend mediation "in good faith"; to afford parties different process options to cater for the trend of mediation at late notice; and to ensure that confidentiality and the without prejudice nature of correspondence is maintained if negotiations continue after the mediation day.

Some disputes cry out for mediation

In Bramwell and others v. Robinson [2016] EWHC B26 (Ch), the County Court issued another reminder that some cases are best dealt with through ADR procedures. In this case, mediation would have been a far more effective procedure for the case than litigation. In Behrens J's view: "[This dispute] ought never to have come near a court, and with a modicum of goodwill on both sides, it would not have done so." The parties had tried to mediate but relations were so bad that both parties thought it necessary to go to court. Neither was happy with the court's application of the law to their situation and the end result led to disappointment. No matter how low the relationship has sunk between disputing parties, most of the time, it is worth finding a way to bring the dispute to mediation.

Costs: there must be good reason to depart from the budget

The issue of whether a party can recover more than the agreed budgeted amounts for certain phases of its costs budget was considered as a point of principle in Sony Communications International AB v. SSH Communications Security Corporation [2016] EWHC 2985 (Pat). Roger Wyand QC, (sitting as a Deputy High Court Judge) reviewed the Court of Appeal decision of Henry v. News Group Newspapers Ltd [2013] EWCA Civ 19. In finding good reason to make some departures from the budget, he relied on relevant factors arising from the Henry case including: the cost budget is a guideline, not a cap; the court will only depart from the budget where there is a good reason to do so; and, in considering whether there are good reasons for departing from a budget, the court had to take into account all the circumstances of the case. Sony argued that it did get "impressively close" to predicting its incurred costs and that it was not seeking to recover more than its total budget figure.

The importance of the costs budget was underlined in Merrix v. Heart of England NHS Foundation Trust (unreported, 13 October 2016), in which the High Court applied section II of CPR Part 3."The words are clear. The court will not – the words are mandatory – depart from the budget, absent good reason. On a detailed assessment on a standard basis, the costs judge is bound by the agreed or approved costs budget, unless there is good reason to depart from it." (See paragraph 67 of the judgment.) Carr J had little time for some of the parties' arguments. In particular, she stressed that complaints about "shortcomings and inevitable inaccuracies in the cost budgeting process cannot avail" a party arguing for a variation in the budget. Further, parties cannot point to judges being novices at the budgeting process (compared to solicitors). "With training and experience all civil judges are equal to the task of costs budgeting."

Carr J sets out a useful history of the costs budgeting regime and a review of the CPR, Part 3 regime itself from paragraph 7 of her judgment.

Recent news: revised court fees, e-filing and court reform

Revised court fees on fixing a trial date/period

Revised court fees payable when the court fixes a trial date or trial period for a case came into effect on 6 March 2017. For a multi-track case, the fee is now £1,090. (The Civil Proceedings Fees (Amendment) Order 2016 (SI 2016/1191))

E-filing in the TCC

E-filing is to be introduced to the courts, including the TCC, from April 2017. You can read more in our article "Compulsory e-filing in the TCC from April 2017" here.

The reform of the civil courts continues

In January 2017, the senior judiciary issued a joint statement which endorsed the Final Report and recommendations of Briggs LJ set out in his July 2016 Civil Courts Structure Review. Briggs LJ's recommendations, by which he aims to bring wider access to justice, included the establishment of the Online Court (including the need for a limited fixed recoverable costs regime) and the structure of the courts themselves.

Since then, the government has issued its response to the MoJ's consultation, "Transforming our justice system" (on 8 February 2017), Her Majesty's Tribunal, Courts Services (HMCTS) has issued its report on changes to the justice system and the consequent Prisons and Courts Bill 2016-17 has had its first and second readings in the House of Commons. Some of the proposals have hit the headlines, including proposals for the retirement of judges at 70.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Updated: May 25, 2018:

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