A landmark judgment from the Court of Appeal has clarified when representative proceedings may be issued on a bifurcated basis and the application of the regime to securities claims.
By Oliver Middleton and Duncan Graves
The English Court of Appeal has confirmed the strike out of a bifurcated representative action under CPR 19.8 for claims under Section 90A FSMA,1 a statutory regime that has formed the basis of a large number of group actions in recent years. Section 90A
Motivated by a “visceral reaction” to large-scale economic crime, Nick Ephgrave lays out vision for a bolder, more pragmatic, and more proactive agency.
By Pamela Reddy and Matthew Unsworth
Whistleblowers, dawn raids, and cross-agency collaboration are all top of Nick Ephgrave’s agenda as he settles into his new role as Director of the UK’s Serious Fraud Office (SFO). Taking to the stage for his inaugural speech at the Royal United Services Institute last week,[i] Ephgrave gave a glimpse into his ambitious (if optimistic) plans for the agency under his leadership.
The Arbitration Bill’s changes clarify important aspects of English arbitral law, reinforcing London’s position as a leader in international arbitration.
By Charles Rae
On 21 November 2023, the UK government unveiled its long-awaited plans to update and modernise the legal framework applicable to arbitrations in England, Wales, and Northern Ireland through amendments to the Arbitration Act 1996. In line with the recommendations of the Law Commission in its September 2023 report (a summary of which can be found in Latham’s previous Client Alert), the government has opted for targeted reform over root-and-branch changes, focusing on clarifying a number of important aspects of arbitral law which have become contentious in recent years. The result is a suite of practical revisions (the Arbitration Bill 2023) that will provide greater certainty to parties and help maintain the UK’s position as a leading destination for international arbitration.
A recent ruling confirms judicial discretion to stay proceedings and instruct parties to seek non-court-based alternatives to litigation.
By Nell Perks and Duncan Graves
The English Court of Appeal has ruled that the court has the authority to stay proceedings and direct the parties to engage in a “non-court based dispute resolution process”. The court can exercise such authority provided the order does not impair the essence of the claimant’s right to proceed to a judicial hearing and is proportionate to achieving the aim of settling the dispute fairly, quickly, and at reasonable cost.[1]
Consistent with the overriding objective which requires the court to actively manage cases and facilitate alternative dispute resolution (ADR), the ruling clarifies the court’s case management powers and signals a potential move toward court-mandated dispute resolution processes.
A recent decision reminds parties about the need to draft dispute resolution clauses that are tailored to the parties’ agreement.
By Oliver E. Browne and Duncan Graves
The Court of Appeal recently ruled that an alternative dispute resolution (ADR) clause in a contract was unenforceable due to lack of clarity. The ruling signals to contracting parties that they should draft ADR clauses carefully, outlining the process to be followed with sufficient detail and clarity so that the clause can be enforced.
A recent decision reminds litigants about the dangers of referring to legal advice in witness statements.
By Oliver E. Browne and Alex Cox
The English courts have recently taken an expansive approach in finding waivers of privilege when legal advice is referred to in witness statements, pleadings, and submissions.[i]
The High Court’s recent decision in Paul Clements v. Adam Frisby[ii] further reminds litigants about the dangers of referring to legal advice when advancing their case. However, it also demonstrates the nuanced and fact-specific approach the court will take in determining whether there has been a waiver and, if so, how widely that waiver extends.
The tribunal in Green Power v. Kingdom of Spain declined jurisdiction, finding that the parties had not validly consented to arbitration under the Energy Charter Treaty.
By Dr. Sebastian Seelmann-Eggebert, Shreya Ramesh, and Ram Mashru
A tribunal seated in Sweden has become the first to uphold the “intra-EU objection” in an arbitration under the Energy Charter Treaty (ECT) administered by the Stockholm Chamber of Commerce. The tribunal found that it lacked jurisdiction to hear a dispute between two Danish solar energy investors — Green Power and SCE (the Claimants) — and the Kingdom of Spain on the basis that Spain’s standing offer to arbitrate under Article 26 of the ECT was invalid as a matter of EU law. The unprecedented decision gives effect to a series of seminal judgments of the EU Court of Justice (CJEU) which held that intra-EU investment arbitrations are incompatible with the primacy of EU law and the unity of the EU legal order.
Procedural omissions for service out of the jurisdiction will not impact issuance of a claim for the purposes of limitation.
By Robert Price and Duncan Graves
In Chelfat v. Hutchinson 3G UK Limited [2022] EWCA Civ 455, the UK Court of Appeal recently determined the effect of a procedural failure in relation to service of a claim outside of the jurisdiction without permission, including whether such failure entitled the court to refuse to issue a claim form, and the consequences for potential limitation defences.
Service out of the jurisdiction without permission is increasingly prevalent in practice following amendments to the Civil Procedure Rules (CPR) post-Brexit on 6 April 2021 to allow such service when the underlying contract has an English jurisdiction clause. If the court’s permission is not required for service out of the jurisdiction, as set out under CPR 6.32 (Northern Ireland or Scotland) and 6.33 (outside of the UK), CPR 6.34(1) provides that a party must file and serve with the claim form a notice containing a statement of the grounds on which the claimant is entitled to serve the claim form out of the jurisdiction. Practice Direction 6, paragraph 2.1 provides that the notice should be on Practice Form N510 (Form N510). CPR 6.34(2) sets out that unless the claimant has filed the claim form with a copy of Form N510, the claim form cannot be served without permission from the court.
The decision in Chelfat clarifies that failure to comply with the procedural requirements for service out of the jurisdiction should not prevent the claim form from being issued. As a result, failure to file Form N510 will not displace the general rule that time ceases to run for the purposes of a limitation period upon the issue of the claim form.
New legislation introduces further sanctions powers and aims to tackle financial crime by revealing identities of overseas beneficial owners of UK property.
By Stuart Alford QC, Robert Price, Thomas Lane, and Harriet Slater
Following the UK government’s successive sanctions packages, which are the subject of recent Latham & Watkins Client Alerts,[1] the response to Russia’s invasion of Ukraine has been extended to cover wider financial crime measures.
The Economic Crime (Transparency and Enforcement) Act 2022 (Act) received royal assent on 15 March 2022, introducing a new register of overseas entities (Register) holding UK property assets, alongside changes to the unexplained wealth order (UWO) and sanctions regimes. Reforms to the role of Companies House are expected to follow in subsequent legislation.
The decision exposes media outlets in the UK to liability if they identify suspects prior to charge, but carries lesser implications elsewhere.
By Stuart Alford QC, James Lloyd, Harriet Slater, and Georgie Blears
On 16 February 2022, the UK Supreme Court held that a suspect under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
The decision has important implications on the extent to which the UK media can report on criminal investigations into individuals prior to the point of charge. Nevertheless, the often international nature of criminal investigations means that the practical impact of this decision may be more limited in situations in which information may still be published in other jurisdictions.