UK Civil Litigation: A Precis

Welcome to our UK Civil Litigation page. We update this page with regular posts on key developments in the civil litigation sphere, with everything from amendments to the Civil Procedure Rules and Court Guidance to our views on some of the most interesting judgments handed down by the Courts.

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EU Commission Confirms View That the EU Should Not Consent to UK Accession to the Lugano Convention 2007

6 May 2021

Lord Goldsmith QC, Christopher Boyne, Gavin Chesney, Shreya Aren, Hannah Bohm-Duchen

The EU Commission has published a Communication (dated 4 May 2021) to the EU Parliament and Council confirming its view that the UK should not be granted consent to accede to the Lugano Convention 2007 (“Lugano”) (the “Communication”).

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UK Accession to the Lugano Convention 2007—View of the EU Commission

22 April 2021

Lord Goldsmith QC, Christopher Boyne, Gavin Chesney, Hannah Bohm-Duchen, Shreya Aren

Reports have emerged that the EU Commission has said it believes the UK should not be granted permission to accede to the Lugano Convention 2007 (“Lugano”). The reports on the EU Commission’s view come from a closed-door meeting with EU diplomats on 12 April 2021. It is the first time the Commission has voiced an official view on the UK’s accession to Lugano. However, this view is not final and the EU Commission is due to issue a formal communication to EU Member States in coming weeks.

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Directors’ Fiduciary Duties Survive Post-Insolvency

15 April 2021

Christopher Boyne, Catalina Diaconeasa

In Byers and Others v Chen Ningning (British Virgin Islands) [2021] UKPC 4, the Privy Council held that the former director of an insolvent company owed fiduciary duties to the company in respect of payments alleged to constitute unfair preferences. This is a cautionary tale for directors of companies which become insolvent, who should be well aware of their continuing fiduciary duties and the need to take into account the interests of the insolvent company’s creditors. It is also equally important for directors of insolvent companies to remember that they cannot evade their duties through delegation to an employee or a de facto director or by “stand[ing] by idly and allow[ing] a company’s assets to be depleted improperly”.

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Service of a Claim Form Out of the Jurisdiction in an EU Member State—Is Permission Required?

8 April 2021

Christopher Boyne, Gavin Chesney, Hannah Bohm-Duchen, Emily Lodge, Georgina Petrova

This Debevoise In Depth provides an overview of changes to the rules on serving a claim form in civil proceedings before the Courts of England and Wales on an entity in an EU Member State.

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Defendant Entitled to Ask Court to Determine Costs after Accepting Part 36 Offer after Expiry of Relevant Offer Period

1 April 2021

Lord Goldsmith QC, Christopher Boyne, Emma Laurie-Rhodes

In a recent judgment, the High Court held that a defendant who accepted a claimant’s Part 36 offer after the expiry of the relevant offer period could ask the court to determine costs. This was the case despite the fact that the offer contained a term as to costs.

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A Timely Reminder to Copy Your Opponents to All Correspondence with the Court

31 March 2021

Christopher BoyneEmma Laurie-Rhodes

In this post, we analyse a recent judgment in which the High Court has reminded parties to litigation of the need to copy other parties to all correspondence with the court.

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Liability for “Pure” Knowing Receipt

29 March 2021

Christopher Boyne, Catalina Diaconeasa, Georgina Petrova

In this post, we analyse Fancourt J’s decision in Byers & Ors v. Samba Financial Group [2021] EWHC 60 (Ch).

The Court set out the key principles relevant to knowing receipt claims and how these differ from dishonest assistance claims.

Read the full article.

Restraint of Trade in Commercial Contracts

16 March 2021

Christopher Boyne, Catalina Diaconeasa

In this Debevoise Update, we analyse the decision of the Court of Appeal in Quantum Actuarial LLP v Quantum Advisory Limited [2021] EWCA Civ 227. The Court set out the principles relevant to establishing whether covenants in a commercial contract engage the doctrine of restraint of trade.

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Insights on Virtual Trials

2 March 2021

Lord Goldsmith QC, Christopher Boyne, Emma Laurie-Rhodes

Covid-19 has brought rapid changes to litigation practice, forcing practitioners to adapt to virtual trials almost overnight.

Detailed planning and extensive cooperation with opposing parties and the court are required to make virtual trials run effectively.

The Debevoise team has successfully run several virtual and hybrid trials, including one three month trial that was completed without any delays to the trial timetable.

Read the full article.

Muncipio de Mariana v BHP Group Plc (formerly BHP Billiton Plc) [2021] EWHC 146 (TCC)

26 February 2021

Christopher Boyne, Catalina Diaconeasa, Georgina Petrova

Turner J refused the claimants’ application for permission to appeal his order to strike out their mass tort claims before the English courts. The decision can be found here. The claims were brought by over 202,000 individuals and arose from the collapse of the Fundão Dam in Brazil. Our summary of the decision to strike out the claims as an abuse of process can be found in our "Civil Litigation Review: 2020".

Turner J noted that “a judge responding to an application for permission to appeal his own judgment must be particularly sensitive to the perception that he is marking his own homework”, but he emphasised that his approach remained, as the parties are fully entitled to expect, entirely objective.

Exceptionally, the judge delivered a 26-page judgment explaining his reasons for refusing permission to appeal.

Read the full article.

Witness Statement Reforms from 6 April 2021

23 February 2021

Christopher Boyne, Emily Lodge, Emily Mackenzie, Alice McCartney

Amongst a flurry of recent cases involving judicial criticism of approaches to witness evidence, a new Practice Direction 57AC and an Appendix (Statement of Best Practice in relation to Trial Witness Statements) will introduce significant witness evidence reforms.

The new Practice Direction applies to trial witness statements in the Business and Property Courts signed on or after 6 April 2021, and applies to new and existing proceedings.

Significant reforms being brought in by the new Practice Direction include the requirement for a trial witness statement to identify by list any documents the witness has referred to, or been referred to, for the purpose of providing their witness statement evidence.

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Abuse of Process Where the Parties Differ

9 February 2021

Christopher BoyneEmily Lodge

On 11 January 2021, the Court of Appeal handed down judgment in PricewaterhouseCoopers LLP v BTI 2014 LLC [2021] EWCA Civ 9, considering the circumstances in which an abuse of process may arise in cases where there is no estoppel.

Read the full article here.

Cross-Undertakings in Security for Costs Applications—Exceptional Circumstances?

5 February 2021

Christopher Boyne, Emily Lodge

Our team explores three recent decisions in the UK courts that impact cross-undertakings in security for costs applications.

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Without Prejudice Communications: The Unambiguous Impropriety Exception

5 February 2021

Christopher Boyne, Emily Lodge

In our Civil Litigation Review: 2020, we discussed the High Court’s decision in Motorola Solutions Inc v Hytera Communications Corporation Ltd [2020] EWHC 980 (Comm). In that decision, the Court held that claimants were permitted to rely on statements made by the defendants in a without prejudice context as evidence of there being a real risk of dissipation of assets in the context of an application for a freezing order. Though the defendants denied having made the relevant statements, the Court found that there was a “good arguable case” that the statements were made as alleged by the claimant. The hearing of Hytera’s appeal of that decision took place on 15 December 2020, with judgment handed down by the Court of Appeal on 11 January 2021. 

Read the full article.

Witness Statements: Caution from the Courts

5 February 2021

Christopher Boyne, Emily Lodge

The tail end of 2020 saw the Courts hand down a number of decisions giving guidance on the approach to be taken to witness statements, and condemning the use of witness evidence for the purpose of arguing a party’s case. The start of this year has seen a flurry of cases involving similar criticism.

Read the full article.

Senior Courts Cost Office Guide – 2021

5 February 2021

Christopher Boyne, Emily Lodge

The latest version of the Senior Courts Costs Office Guide has now been published. Though it has not changed extensively, there are a number of amendments to reflect changes in practice occurring before and as a result of Covid-19. 

The publishing announcement of the Guide provides that the expectation is that future changes “will be captured by regular revision rather than a five or six yearly review.” As such, the Guide will exist only in electronic form, and can be found here

 

Supreme Court Ruling on FCA Business Interruption Test Case

5 February 2021

Christopher Boyne, Emily Lodge

On 18 January 2021, the UK Supreme Court handed down judgment in connection with the Financial Conduct Authority’s test case on business interruption insurance. 

Our analysis of the decision can be found here

Civil Litigation Review: 2020

6 January, 2021

Christopher BoyneGeorgina PetrovaEmily Lodge

2020 was undoubtedly an eventful year across the globe. In the midst of it, the English courts remained as busy as ever, albeit, in most cases, remotely. In this In Depth, we consider some of last year’s key developments in English civil litigation.

Read the full article here