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.

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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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Christopher Boyne, Emily 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.

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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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. 

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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.

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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. 

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.